ABSTRACT
Hundreds of partnerships and collaborations, among manufacturers around the world, are expected to result in the delivery of eleven billion doses of COVID-19 vaccines by the end of 2021.2 In the years leading up to the Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration) and the amendment to the TRIPS Agreement (i.e., Article 31bis)-when global health concerns were primarily focused on HIV/AIDS, tuberculosis, and malaria (as highlighted by the Doha Declaration itself)-the IP rights subject to greatest debate and discussion were patent rights.3 During discussions over COVID-19-related IP rights, however, trade secret protection gained prominence for those who advocated for eliminating, or reducing, IP protection in an attempt to increase the production and distribution of vaccines and therapeutics.4 Yet as detailed herein, although there may be some overlap in the type of subject matter that patents and trade secrets protect, the nature of these two distinct forms of IP protection is very different, such that the protection accorded, and permissible limitations on, such protection are likewise necessarily quite different. "5 These flexibilities and associated conditions, as expanded through Article 31 bis, are the subject of a pending proposal by the European Union (EU) that the WTO General Council adopt a "Declaration on the TRIPS Agreement and Public Health in the Circumstances of a Pandemic," clarifying certain aspects of permissible compulsory licensing of patents.6 Despite these built-in flexibilities and efforts to further clarify the scope of the TRIPS Agreement, several WTO members have proposed a so-called "TRIPS Waiver," which would, as initially proposed, provide discretion for WTO members to opt not to protect multiple types of IP rights covering COVID-19-related products and technologies.7 Among the types of protection, specifically listed in the proposed TRIPS Waiver is trade secret protection, as identified through reference to Part II, Section 7 of the TRIPS Agreement.8 If the TRIPS Waiver currently being debated at the WTO is approved, it would have harmful implications for generations to come, limiting the ability of the biopharmaceutical industry to respond to future pandemics with vaccines and therapeutics as quickly as was possible in response to the COVID-19 pandemic.9 Several commentators, including academics, argue that trade secrets- including those related to technologies and processes relevant to COVID-19 vaccines, treatments, and diagnostics-are currently subject to certain flexibilities, including the possibility of requiring the right holder to license, or otherwise share, a trade secret against their will. [...]we conclude by examining the costs and risks that would arise from failing to respect trade secret protection, including through an action as aggressive as compulsory licensing (Section V). Traditionally, trade secret protection was understood to be based in principles of property rights.20 For example, in Ruckelshaus v. Monsanto Co., the U.S. Supreme Court held that trade secrets were a form of property, reasoning that they "have many of the characteristics of more tangible forms of property" because they are "assignable[,]" "can form the res of a trust[,]" and pass "to a trustee in bankruptcy.