Patents and COVID-19 Vaccines

NYTimes has published a new opinion piece titled “Want Vaccines Fast? Suspend Intellectual Property Rights.”

A few years ago I wrote an essay entitled Nil: The Value of Patents in a Major Crisis Such as an Influenza Pandemic (2009).  My basic argument was that the timeline for patenting is quite different than the timeline for a pandemic.  Patents typically take years to obtain (especially on an international level) and pandemics typically have a shorter timeline.  By the time the patents issue, the crisis will likely be averted.  And, if the crisis is still ongoing governments will simply bend/break the patents if their owners refuse to comply.

My understanding is that – so far – none of the COVID-19 vaccines have been patented, but that process is certainly in the works.  The NYTimes article also implicitly recognizes that patents are not the key to COVID distribution, rather, the focus here is really to force the technology developers to also turn-over their undisclosed know-how and trade secrets. This is something obviously more invasive than refusing to enforce patent rights and would shift the balance of power out of the hands of the innovator companies.

42 thoughts on “Patents and COVID-19 Vaccines

  1. 16

    O/T I know, but relevant to i) defending against the virus, and ii) patent rights.

    link to theguardian.com

    Heart-warming? Or disturbing? What do you think?

    1. 16.1

      Why in the world would you think this to be disturbing?

      Serious question.

  2. 15

    O/T, but IP important:

    link to cnbc.com

    About time . . . and long overdue.

    Next up: Google and Apple.

    1. 15.1

      . . . and Amazon. (I note that Google has already been similarly charged)

    2. 15.2

      Uncle Joe will get them out of it.

  3. 14

    All of the whinging in these comments extolling the virtues of IP rights, and non-existent anti-IP conspiracies, ignores the very real and temporary problem the article has identified, i.e., the entire stock of vaccines for 2021 has been sold out just to service the markets in Europe, U.S., and Japan. That means that if pharma companies don’t share their trade secrets on reasonable terms so vaccines can be manufactured locally in developing countries, those countries likely won’t see any significant vaccinations before mid-2022 (at the very earliest) and will just have to deal with another year and a half of mounting COVID-19 causalities or lockdowns.

    But the article itself demonstrates why a WTO proposal is a premature solution to a problem that doesn’t exist yet. Every historical example cited in that article involves pharma companies bowing to pressure and voluntarily lowering prices and increasing availability to respond to a crisis. Sure, there was often some threat of government coercion in the background, but it never came to that. In the case of COVID-19, there’s no indication yet that the vaccine makers won’t “do the right thing” in making their vaccine technology available for manufacture in developing nations (either voluntarily or after a brutal public shaming campaign). A WTO proposal suspending IP rights entirely in certain countries could have unintended long-term consequences, and at this point, hasn’t been shown to be necessary.

    1. 14.1

      ?

      Your own post reflects more than a little “whinging”

      Do you have something against extolling the virtues of IP rights?

      Do you really feel that anti-IP is nothing more than a non-existent conspiracy?

      How in the world would these two points equate to an assertion of yours that those who may hold such views are the ones that “ignore[] the very real and temporary problem the article has identified?

      You sound like an ideologue desperately trying to fit a preconceived notion into reality, while YOU want to ignore the fact that there ARE real world anti-patent views.

  4. 13

    Always interesting to read the writings of people who are totally disconnected from the real world. It’s like science fiction.

    COVID has been a health crisis for about 10 months. We are on the verge of two vaccines being approved and released to the public. No IP rights of any kind were suspended. Rather, the government determined to suspend regulatory red-tape, and let the private sector handle it.

    So empirical reality refutes their thesis. Of course, that won’t stop them from continuing to spin their male-cow excrement.

    1. 13.1

      You have to remember that the people that are trying to end IP are being paid to do so.

      1. 13.1.1

        sure – such actions are eminently within the sphere of being a Rational Actor (even — or perhaps more adroitly, because — as such may be detrimental to innovation qua innovation).

  5. 12

    Have about every time a virus comes around the President uses
    Section 101(a) of the DPA [50 U.S.C. § 4511] to order 300 million vaccine units with priority over everything else the company does? That way it won’t matter what happened last time. Smart companies will always volunteer in this case…

    Section 101(a) of the DPA [50 U.S.C. § 4511].
    (a) Allocation of materials, services, and facilities

    The President is authorized (1) to require that performance under contracts or orders (other than contracts of employment) which he deems necessary or appropriate to promote the national defense shall take priority over performance under any other contract or order, and, for the purpose of assuring such priority, to require acceptance and performance of such contracts or orders in preference to other contracts or orders by any person he finds to be capable of their performance, and (2) to allocate materials, services, and facilities in such manner, upon such conditions, and to such extent as he shall deem necessary or appropriate to promote the national defense.

    1. 12.1

      So you think that that is enough incentive? No IP. All you get if you win is an order from the president and you have to court to figure out how much you get paid?

      Nice world.

      1. 12.1.1

        If the choices are ‘provide the 300 million doses with enthusiasm’ or ‘provide the 300 million doses without enthusiasm and do not manufacture or sell anything else until you do’ then the request will be met with enormous enthusiasm. Other incentives are just bonuses on top!

        1. 12.1.1.1

          And…the next time, you think all this money will be put into making a vaccine just ’cause they are good citizens.

          You have no idea how the world works.

          And guess what Slashdot Reader? Chien is brining in trade secrets and ripping down the patents with uncle Joe.

          Guess what? You won’t be able to leave your job and your pay is going to be cut. You don’t be able to publish papers or share what you’ve done.

          Bet me? That is what the tech workers are facing.

          1. 12.1.1.1.1

            Night Writer,

            Most all of the lemmings at places like Slashdot and Techdirt will only realize their position after they have tumbled over the cliff edge.

  6. 11

    One should not forget that these vaccines did not just magically appear when, in a pandemic, some corporation, government or other benefactor decided to spend $ billions on the research and wait for results. The entire infrastructure which makes the research possible originated at some point in time as IP. Take the Pfizer vaccine as just one example. All of that laboratory equipment, the methods of isolating and characterizing Covid 19, determining potential ways of attacking it, creating the vaccine, the testing methods, and my favorite, the freezers capable of achieving minus 70 Celsius storage, are necessary. These all have to be in place. The companies and individual inventors who created all of this stuff didn’t just wake up several months ago and decide it was time to do something beneficial to the pandemic effort. Quite to the contrary, they created all of this stuff years ago so they could sell it and make money. Without IP protection and in particular without the right to exclude, very little of waht was needed for the final push to a vaccine wouldn’t exist with the degree of improvement and perfection which was necessary for and enabled the creation of the vaccines.

  7. 10

    Patents stifle innovation. Up is down. Left is right. Same old song and dance. You got a deadly virus? Yes, I do! We have no cure. What would you pay for a cure? Anything. Much work, discovery, invention (in the best sense of the word) later – discovery and perfection of cure. We demand the cure for free! As we all know, this being an informed discussion of patent lawyers, the government has march in rights to any patent. And we all know, no court is going to enjoin infringement because of public health, safety and need (the law before even eBay), and all the innovator is going to get is some money damages via either a de facto compulsory license from a court or as the only remedy in claims court to government ordered production. And of course, this isn’t even factoring in the ‘warp speed’ money that pre-produced and pre-purchased massive amounts of covid – ‘cure’ – those guys were not idiots and were not unaware of patent rights when they tranched the billions of cash to pharma. Sorry for the rant. Just so tired of these uninformed (propaganda) scare pieces concerning patents and patent rights. Light up the straw man!

  8. 9

    Yep, voiding any IP that has to do with Covid 19 vaccine would likely quicken some distribution of the vaccine.

    But when the next pandemic comes along, boy will vaccine development be slow: none that is not fully funded by government or charity.

    1. 9.1

      Who cares? By that time this thing called ‘democracy’ or even ‘a republic’ will be a quaint relic of the past.

  9. 8

    A few facts might assist.

    The components of the new mRNA vaccines of Pfizer, Moderna, CureVac and others are heavily patented. There are 2 main estates: 1. the modified mRNA estate held by UPenn; 2. the lipid nanoparticle components held by Arbutus, Moderna, Acuitas and others. Most patents have been licensed where appropriate, there is one major (public) dispute (see Arbutus/Moderna).

    As for the viral vectors (e.g. AZ/Oxford), the production cell lines are proprietary, and it’s not yet public if the genetic constructs in the viruses employed include patented elements. My guess is they probably do.

    As for the NYT article, it is ridiculous in its ignorance. For one thing, the skills and equipment required for manufacturing and QC/QA of the vaccines is so unique, new and specialized that it would take years for any government or generic maker to learn how to do it without the full support of the owners. So compulsory license achieves only delay. For another thing, the patents could never be used to block production of a vaccine, based on the law of preliminary injunction (PI). The “public interest” prong of PI law is often overlooked. In a global pandemic, the public interest is presumably very strong, so a court will find remedy in a reasonable royalty to the patentee, not enjoinment of (e.g. blocking production of) the product.

    Any generic that wants to copy these vaccines will never be blocked by patents but by the sheer complexity and novelty of the products. I’m grateful for the small handfuls of people around the planet focused on the safe the production and rapid launch of these things.

    1. 8.1

      Well said.

    2. 8.2

      Well said.

  10. 7

    The government can doesn’t have to suspect IP but rather can force licenses and fees. Something like what they did in WW II.

    Plus, –again and again–, the problem with what the authors are saying is that it is for THIS time. What about next time? Are people going to be willing to put such effort into a vaccine if there isn’t an upside?

    1. 7.1

      Does the ‘upside’ of a pizza count?

    2. 7.2

      “Are people going to be willing to put such effort into a vaccine if there isn’t an upside?”

      Critical, future life-saving point, Night.

    3. 7.3

      It’s simpler than that. The government can order production and your only remedy is claims court.

      1. 7.3.1

        Last I checked, our system does not support a government order TO go ahead and manufacture anything.

        1. 7.3.1.1

          Anytime the government makes a “specific” i.e., specifies infringement, purchase order – your only remedy is claims court. That’s why that RIMM case was so hose up when the government – oh, you can’t enjoin the governments use of our critical blackberries – was so ignorant of the law.

          1. 7.3.1.1.1

            +1

  11. 6

    Do people really want to take a vaccine knockoff made in India or China by a company that has misappropriated the IP? Biologics manufacturing is complicated. Vaccine companies need to maintain control over how their vaccine is manufactured for quality and safety reasons. It’s critical to patient safety. (For instance, any adverse events need to be appropriately reported and tracked.) No one should want unauthorized vaccine dupes circulating.

    If Indian or Chinese companies have manufacturing capacity, they should reach out to partner with the vaccine companies. They are looking for all the capacity they can get right now and are actively looking for ways to get their vaccine to people in developing countries.

  12. 5

    Two of the authors are Indian, and their thinking does not seem to be atypical for IP policy makers from that country: you have something (knowledge of how to produce a vaccine), we want it, so you should give it to us for free.

    I have a different suggestion: let the virus run its course in India. Whoever lives, lives. If the government of India can develop a vaccine first, then it can slow the rate of virus-related deaths. If not, it’s welcome to buy existing vaccines from the parties that developed them. To the extent those parties received subsidies from the US treasury, India can reimburse the US government directly.

  13. 4

    I’ve got a much, much better idea:

    Since these three op-ed authors want world governments to steal the hard work of others for nothing, they should immediately give up their work for nothing as well.

    Because, well, you know . . . we’re in a pandemic . . . and work just wants to be free.

    What’s good for the goose is good for the gander, right?

    1. 4.1

      Actually Pro Say, the Washington Post & New York Times both waive their paywall for Covid coverage, in the public interest.

      Nonetheless, this is a deeply stupid and misleading Op-Ed. It’s also impossible to even implement in a reasonable way, because the boundary between Covid work and general work that could be turned to Covid uses is impossible to determine in advance of the science & engineering unfolding.

      To the extent that the current IP regime penalizes Covid work, the concept of some kind of waiver or temporary immunity from infringement on a case by case basis, with the protections of an Article III court, could have some potential value- maybe.

      The unintended consequences of some kind of wholesale IP rollback for incanting the word “Coronavirus” are palpable. They will not be greeted as liberators.

      1. 4.1.1

        To insure clarity, Martin, the “free” I was referring to was to say that the authors should be willing to give up their own sources of income.

        Because, well, pandemic.

        (Nice, though, that these pubs are waiving they paywalls for Covid coverage.)

  14. 3

    “the focus here is really to force the technology developers to also turn-over their undisclosed know-how and trade secrets.”

    That “focus” appears to be limited to a single paragraph referencing the opinion of Doctors Without Boarders. Good way to stir up your audience though.

    1. 3.1

      See post 1.

      Unfortunately, you are just not correct, Ben.

      Sure, there are different contexts, and the same players may not be involved, but the underlying gist DOES have commonality with a very certain subset of anti-patent protagonists.

  15. 2

    The basis of this “opinion piece” [not any actual NYT factual reporting] is the latest example of baseless left wing conspiracy theories on this subject floating around for some time, and not much better than those being worshiped by Trumpsters. I have yet to see a single actual example reported of any privately owned intellectual property of any kind slowing down or obstructing Covis-19 vaccines. When and if any is ever actually shown, the owner would quickly be under massive adverse PR pressure.

    1. 2.1

      Seconded. One recalls what a newspaper editor famously said, a century ago, that “Comment is free but facts are sacred”. My understanding is that, until C19 came along, it was precious difficult to get any serious investment in vaccine research. Much more interesting to investors are the chronic diseases of affluence. Accordingly, it is nothing short of miraculous how Moderna, Pfizer and Astra-Zeneca have got so quickly to this point of development. I presume they are manufacturing doses with all possible speed, money (and patents) no object.

      I should prefer it if the NYT could focus instead on the problems of getting the EU and the USA to arrange for some of the vaccine stream to reach key personnel in poor countries, instead of hogging 100% of it for their own populations.

      1. 2.1.1

        This authors opinion piece is actually contrary to factual history. Pharma companies have actually suspended their hesitation in working with each other (they got over the fear of getting scooped by one another). With respect to small molecules (not vaccines/antibodies) major pharma companies came together and contributed their library of compounds to be screened for COVID effectiveness. Such was reported back in March of 2020.

        “Details of the collaboration emerged on the same day BioCentury reported that the R&D heads of 10 or more biopharma companies have been meeting several times a week to coordinate a joined-up response to the COVID-19 pandemic. The effort is reportedly split into five working groups focused on clinical-phase repurposing, novel small-molecule antivirals, novel antibodies, preventive vaccines and preclinical repurposing”

        See link to fiercebiotech.com

        1. 2.1.1.1

          How about a NYT opinion piece on the dangers of
          “gain of function” research with exotic wild viruses? Research deemed so dangerous it was banned even in our highest level containment labs.

          1. 2.1.1.1.1

            Well, two things (to start):
            1) NYT, and
            2) opinion piece.

            By the way, are you perhaps (subtly) referring to reports of COVID-19 characteristics that are indicative of the origin of the current pandemic being one of a lab containment breakdown?

  16. 1

    There well may be an additional (even if but stated) logical fallacy lurking about that ALL innovation would be more timely if only patents were cleared out of the way.

    It should be abundantly clear that while necessity may be the Mother of Invention, and there is a LOT of necessity in facing a global pandemic, a system for promoting and sustaining innovation need be something other than purely autocratic.

    If one has (or wants) a perpetual state of emergency — such as in pandemic, or war (another fantastic driver of innovation), THEN build a system geared to such extremes.

    Most rationale people will recognize that an ongoing system should be – and need be – built differently.

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