[House Report 117-520]
[From the U.S. Government Publishing Office]


117th Congress  }                                          {  Report
                        HOUSE OF REPRESENTATIVES
 2d Session     }                                          {  117-520

======================================================================

 
 REQUESTING THE PRESIDENT TO TRANSMIT CERTAIN INFORMATION TO THE HOUSE 
   OF REPRESENTATIVES RELATING TO A WAIVER OF INTELLECTUAL PROPERTY 
   COMMITMENTS UNDER THE WORLD TRADE ORGANIZATION AGREEMENT ON TRADE-
            RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS

                                _______
                                

 September 28, 2022.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

            Mr. Neal, from the Committee on Ways and Means, 
                        submitted the following

                             ADVERSE REPORT

                             together with

                            DISSENTING VIEWS

                      [To accompany H. Res. 1285]

    The Committee on Ways and Means, to whom was referred the 
resolution (H. Res. 1285) requesting the President to transmit 
certain information to the House of Representatives relating to 
a waiver of intellectual property commitments under the World 
Trade Organization Agreement on Trade-Related Aspects of 
Intellectual Property Rights, having considered the same, 
report unfavorably thereon without amendment and recommend that 
the resolution not be agreed to.

                                CONTENTS

                                                                   Page
  I. SUMMARY AND BACKGROUND...........................................2
          A. Purpose and Summary.................................     2
          B. Background and Need for Legislation.................     2
          C. Legislative History.................................     3
 II. EXPLANATION OF THE BILL..........................................3
III. VOTES OF THE COMMITTEE...........................................3
 IV. BUDGET EFFECTS OF THE BILL.......................................4
          A. Committee Estimate of Budgetary Effects.............     4
          B. Statement Regarding New Budget Authority and Tax 
              Expenditures Budget Authority......................     4
          C. Cost Estimate Prepared by the Congressional Budget 
              Office.............................................     4
  V. OTHER MATTERS TO BE DISCUSSED UNDER THE RULES OF THE HOUSE.......4
          A. Committee Oversight Findings and Recommendations....     4
          B. Statement of General Performance Goals and 
              Objectives.........................................     5
          C. Information Relating to Unfunded Mandates...........     5


29-008


          D. Advisory Committee Statement........................     5
          E. Applicability to Legislative Branch.................     5
          F. Congressional Earmarks, Limited Tax Benefits, and 
              Limited Tariff Benefits............................     5
          G. Hearings............................................     5
 VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED............5
VII. DISSENTING VIEWS.................................................6

                       I. SUMMARY AND BACKGROUND


                         A. Purpose and Summary

    H. Res. 1285 requests the President to transmit certain 
information to the House of Representatives relating to a 
waiver of intellectual property commitments under the World 
Trade Organization Agreement on Trade-Related Aspects of 
Intellectual Property Rights.

                 B. Background and Need for Legislation

    H. Res. 1285 was introduced by Representative Smith of 
Nebraska on July 26, 2022. H. Res. 1285 is a resolution of 
inquiry which is a means used by the House to obtain certain 
factual information from the Executive Branch. Under clause 7 
of rule XIII, a resolution of inquiry is subject to a motion to 
discharge from committee if the resolution is not reported by 
the committee to which it was referred within 14 legislative 
days of its introduction. Accordingly, the Committee on Ways 
and Means scheduled a markup of H. Res. 1285 within the 14-day 
period.
    Since the beginning of the COVID-19 pandemic, numerous 
civil society groups and many emerging economy Members of the 
World Trade Organization (WTO) have pressed for accommodations 
to intellectual property rules for COVID-19 vaccines. To 
facilitate the end of the COVID-19 pandemic, the United States 
Trade Representative (USTR) worked with U.S. trading partners 
to ensure that trade rules support the global response to the 
pandemic. These efforts included a waiver of intellectual 
property protections for COVID-19 vaccines. In this regard, the 
Committee notes that all WTO Members agreed to the waiver 
during the WTO's 12th Ministerial Conference. Specifically, the 
June 17, 2022 Ministerial Decision (Ministerial Decision) on 
the WTO Agreement on Trade-Related Aspects of Intellectual 
Property (TRIPS) authorizes certain developing country WTO 
Members to use the subject matter of a patent required for the 
production and supply of COVID-19 vaccines without the consent 
of the right holder to the extent necessary to address the 
COVID-19 pandemic, in accordance with the provisions of Article 
31 of the TRIPS Agreement, as clarified and waived in 
paragraphs 2 to 6 of the Ministerial Decision. Paragraph 6 of 
the Ministerial Decision provides that eligible WTO developing 
countries can apply the provisions of the decision for 5 years. 
Paragraph 8 of the Ministerial Decision provides that no later 
than six months from the date of the decision WTO Members will 
decide on its extension to cover the production and supply of 
COVID-19 diagnostics and therapeutics. As is acknowledged by H. 
Res. 1285, China has made a binding commitment not to avail 
itself of the Ministerial Decision.
    The Committee notes that the Biden Administration believes 
strongly in intellectual property protections. In the service 
of ending the COVID-19 pandemic, however, the administration 
worked with WTO Members to craft a temporary waiver for COVID-
19 vaccines. According to the Biden Administration, the waiver 
will facilitate the global health recovery needed to make 
possible a robust global economic recovery. For these reasons 
the Committee reported H. Res. 1285 adversely.

                         C. Legislative History


Background

    H. Res. 1285 was introduced on July 26, 2022 date by Reps. 
Smith (Nebraska) and Brady and was referred to the Committee on 
Ways and Means.

Committee hearings

    The committee held no hearings on H. Res. 1285.

Committee action

    The Committee on Ways and Means marked up H. Res. 1285 on 
September 20, 2022, and ordered the bill reported adversely 
(with a quorum being present) by a record vote.

                      II. EXPLANATION OF THE BILL

    H. Res. 1285 directs the President to transmit to the House 
of Representatives, not later than 14 days after the date of 
the adoption of the resolution, copies of all documents, 
memoranda, advisory legal opinions, notes from meetings, audio 
recordings, records (including telephone and electronic mail 
records), correspondence, or other communications, or any 
portion of any such communications, to the extent that any such 
one or more items are within the possession of the President, 
that demonstrate the following:
    1) that the waiver of intellectual property commitments 
under the World Trade Organization Agreement on Trade-Related 
Aspects of Intellectual Property Rights (hereinafter ``TRIPS 
waiver'') that was agreed to on June 17, 2022, will increase 
the global supply and delivery of COVID-19 vaccines;
    2) the extent to which COVID-19 vaccines have been 
destroyed due to their expiration and the period during which 
this occurred;
    3) that the proposed expansion of the TRIPS waiver to cover 
intellectual property related to diagnostics and therapeutics 
(hereinafter ``proposed TRIPS waiver expansion'') will increase 
the global supply and delivery of COVID-19 diagnostics or 
therapeutics;
    4) that the TRIPS waiver or the proposed TRIPS waiver 
expansion will accelerate the end of the COVID-19 pandemic; and
    5) that the People's Republic of China will not obtain 
access to patents or other intellectual property related to 
COVID-19 vaccines, diagnostics, or therapeutics, even if China 
is expressly excluded from the TRIPS waiver or the proposed 
TRIPS waiver expansion.

                      III. VOTES OF THE COMMITTEE

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the following statement is made 
concerning the vote of the Committee on Ways and Means in its 
consideration of H. Res. 1285.
    H. Res. 1285 was ordered adversely reported to the House of 
Representatives by a vote of 23 yeas and 17 nays (with a quorum 
being present). The vote was as follows:

----------------------------------------------------------------------------------------------------------------
         Representative             Yea       Nay     Present     Representative      Yea       Nay     Present
----------------------------------------------------------------------------------------------------------------
Mr. Doggett....................        X   ........  .........  Mr. Brady........  ........        X   .........
Mr. Thompson...................        X   ........  .........  Mr. Buchanan.....  ........        X   .........
Mr. Larson.....................        X   ........  .........  Mr. Smith (NE)...  ........        X   .........
Mr. Blumenauer.................        X   ........  .........  Mr. Kelly........  ........        X   .........
Mr. Kind.......................        X   ........  .........  Mr. Smith (MO)...  ........        X   .........
Mr. Pascrell...................        X   ........  .........  Mr. Rice.........  ........        X   .........
Mr. Davis......................        X   ........  .........  Mr. Schweikert...  ........        X   .........
Ms. Sanchez....................        X   ........  .........  Mr. LaHood.......  ........        X   .........
Mr. Higgins....................        X   ........  .........  Dr. Wenstrup.....  ........        X   .........
Ms. Sewell.....................  ........  ........  .........  Mr. Arrington....  ........        X   .........
Ms. DelBene....................        X   ........  .........  Dr. Ferguson.....  ........        X   .........
Ms. Chu........................        X   ........  .........  Mr. Estes........  ........        X   .........
Ms. Moore......................        X   ........  .........  Mr. Smucker......  ........        X   .........
Mr. Kildee.....................        X   ........  .........  Mr. Hern.........  ........        X   .........
Mr. Boyle......................        X   ........  .........  Mrs. Miller......  ........        X   .........
Mr. Beyer......................        X   ........  .........  Dr. Murphy.......  ........        X   .........
Mr. Evans......................        X   ........  .........  Mr. Kustoff......  ........        X   .........
Mr. Schneider..................        X   ........  .........  .................  ........  ........  .........
Mr. Suozzi.....................        X   ........  .........  .................  ........  ........  .........
Mr. Panetta....................        X   ........  .........  .................  ........  ........  .........
Ms. Murphy.....................  ........  ........  .........  .................  ........  ........  .........
Mr. Gomez......................        X   ........  .........  .................  ........  ........  .........
Mr. Horsford...................        X   ........  .........  .................  ........  ........  .........
Ms. Plaskett...................        X   ........  .........  .................  ........  ........  .........
Chairman Neal..................        X   ........  .........  .................  ........  ........  .........
    Totals.....................       23   ........  .........      Totals.......  ........       17   .........
----------------------------------------------------------------------------------------------------------------

                     IV. BUDGET EFFECTS OF THE BILL


               A. Committee Estimate of Budgetary Effects

    Clause 3(d) of rule XIII of the Rules of the House of 
Representatives is inapplicable.

B. Statement Regarding New Budget Authority and Tax Expenditures Budget 
                               Authority

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable.

      C. Cost Estimate Prepared by the Congressional Budget Office

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
Congressional Budget Office did not provide a cost estimate of 
the resolution.

     V. OTHER MATTERS TO BE DISCUSSED UNDER THE RULES OF THE HOUSE


          A. Committee Oversight Findings and Recommendations

    With respect to clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee made findings and recommendations that are 
reflected in this report.

        B. Statement of General Performance Goals and Objectives

    With to clause 3(c)(4) of rule XIII of the Rules of the 
House of Representatives, the Committee advises that the bill 
does not authorize funding, so no statement of general 
performance goals and objectives is required.

              C. Information Relating to Unfunded Mandates

    This information is provided in accordance with section 423 
of the Unfunded Mandates Reform Act of 1995 (Pub. L. No. 104-
4).
    The Committee has determined that the bill does not contain 
Federal mandates on the private sector. The Committee has 
determined that the bill does not impose a Federal 
intergovernmental mandate on State, local, or tribal 
governments.

                    D. Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by the bill.

                 E. Applicability to Legislative Branch

    The Committee finds that the bill does not relate to the 
terms and conditions of employment or access to public services 
or accommodations within the meaning of section 102(b)(2) of 
the Congressional Accountability Act.

  F. Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
                                Benefits

    With respect to clause 9 of rule XXI of the Rules of the 
House of Representatives, the Committee has carefully reviewed 
the provisions of the bill, and states that the provisions of 
the bill do not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits within the meaning of the 
rule.

                              G. Hearings

    In relation to compliance with clause 3(c)(6) of rule XIII 
of the Rules of the House of Representatives, the Committee 
states that no hearings were held on this resolution.

       VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    In compliance with clause 3(e)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that H. 
Res. 1285 does not make any changes to existing law.

                         VII. DISSENTING VIEWS

    Committee Republicans strongly oppose the Committee's 
action of unfavorably reporting H. Res. 1285, Resolution of 
inquiry requesting the President to transmit certain 
information to the House of Representatives relating to a 
waiver of intellectual property commitments under the World 
Trade Organization Agreement on Trade-Related Aspects of 
Intellectual Property Rights (herein after referred to as 
``TRIPS waiver'').
    Congressional oversight is one of the most important 
responsibilities of the U.S. Congress, and Resolutions of 
Inquiry (ROIs) are one of the methods used by the U.S. House of 
Representatives to obtain information from the executive 
branch. ROIs simply demand that the administration turn over 
basic information to Congress. This information is critical 
because it allows the Congress to ensure the executive branch's 
compliance with congressional intent; evaluate program 
performance; prevent the executive branch's encroachment on the 
legislative branch's powers; assess an agency's ability to 
manage and carry out program objectives; and acquire 
information from the executive branch that can inform 
policymaking.
    Moreover, Congressional Republicans have repeatedly sought 
information from the Administration about the expected and 
actual impact of these policies. Transparency is essential 
because it promotes accountability and provides information for 
the Congress and Americans about what the federal government is 
doing. Despite the Biden Administration stating that President 
Biden would ``bring transparency and truth back to the 
government to share the truth, even when it's hard to hear,'' 
the Administration has ignored the need for congressional 
oversight and completely failed on its promise. The American 
people deserve to know how their government works and we will 
hold the Biden Administration accountable for its disastrous 
policies.
    This ROI seeks information showing that the Biden 
Administration is doing due diligence on the TRIPS waiver. On 
June 17, 2022, the Administration capitulated to the demands of 
some of the U.S.' most disruptive trading partners at the World 
Trade Organization (WTO) Ministerial Conference by accepting a 
deal that weakened longstanding rules protecting intellectual 
property rights. The WTO TRIPS Agreement establishes certain 
minimum intellectual property (IP) standards. In May 2021, the 
Biden Administration announced in ``service of ending this 
pandemic,'' it would support a ``limited'' waiver of U.S. 
rights under the TRIPS Agreement, exclusively related to COVID-
19 vaccines.
    The Biden Administration waived America's IP rights on 
vaccines for five years, with the possibility of an extension. 
Again, contrary to its claims to Congress, the Biden 
Administration also agreed to initiate discussions to expand 
the scope of the waiver beyond vaccines to medical diagnostics 
and therapeutics, an immense category of products with diverse 
applications, many of which are unrelated to COVID-19. This 
decision undermines America's innovators who developed the 
world's most effective vaccines, as well as the workers 
manufacturing these vaccines, and potentially exposes them to 
firms in China that have been trying to steal U.S. mRNA 
research. In fact, the Administration agreed to language that 
``encourages'' China to opt-out from using the waiver and is 
willing to take China's word that it will not use the waiver.
    Committee Republicans first expressed their opposition to 
the TRIPS waiver in April 2021, and Members of Congress 
repeatedly asked the U.S. Trade Representative, via both 
letters and questions during Congressional hearings, for any 
evidence that waiving American innovators' IP rights would 
improve vaccine access. In addition, Members of Congress 
introduced the Protecting American Innovation Act, which among 
other things would require substantial analysis of the health 
and national security effects of a TRIPS waiver and would 
confirm that any TRIPS waiver requires approval by Congress. 
More than a year later, the Biden Administration has yet to 
provide an answer or analysis of the effects of the waiver. It 
is disappointing that Committee Democrats have blocked this 
request for information on an issue of such great importance 
that all Americans should expect the Administration to consult 
frequently and substantively with Congress and stakeholders.
                                   Kevin Brady,
                                           Ranking Member.
                                   Adrian Smith.

                                  [all]