A week or so ago, the head of the U.S. Patent and Trademark Office, Andrei Iancu, who has been an extreme patent maximalist over the years, insisted that there was simply no evidence that patents hold back COVID treatments. This is a debate we’ve been having over the past few months. We’ve seen some aggressive actions by patent holders, and the usual crew of patent system supporters claiming, without evidence that no one would create a vaccine without much longer patent terms.
Iancu was questioned about how patents might hold back life-saving innovation and he brushed it off like this was a crazy question:
Iancu said while it is necessary to ensure that critical treatments are widely available to the public, intellectual property rights “must always be respected,” especially during crises like COVID-19.
Without adequate protections, Iancu warned that companies would lack incentive to invest substantial time and money in developing treatments for the next global health crisis.
Again, that makes no sense. The “incentive” to invest is in the demand for the product itself. Governments around the world are going to pay for any vaccine because it’s necessary and the boost to any economy is going to be well worth making the developers of a vaccine very, very wealthy.
Iancu also shot down the idea that patents might be used to limit access to a vaccine:
Dorian Daley, who asked the agency director to address concerns that intellectual property relating to COVID-19 might “create a barrier to access that would be problematic.”
“Where is the evidence of that?” Iancu countered, though he noted that the U.S. has “tools at its disposal” — such as the “march-in” rights under the Bayh-Dole Act, which allows the government to invoke rarely used powers to override patents — in the event that additional access is needed.
Of course, historically, the pharma industry flips out any time anyone mentions march-in rights, which is why the government basically never ever uses them.
But just to highlight how ridiculous Iancu’s statements were, just days later, Pfizer, Regeneron, and BioNTech — all working on COVID treatments (including the antibody cocktail that President Trump took from Regeneron) — were all sued for patent infringement for their COVID treatments.
Allele Biotechnology and Pharmaceuticals filed two lawsuits against the three drugmakers on Monday. The San Diego firm alleges that Pfizer and BioNTech, with its investigational COVID-19 vaccine BNT162, and Regeneron’s REGN-COV2, were developed using Allele’s mNeonGreen fluorescent protein without the company’s permission.
So, it certainly appears that patents are getting in the way of some COVID-19 treatments.
And then to make an even stronger point, pharma company Moderna — which had been facing a ton of questions about how its patents might delay COVID-19 treatment — has announced that it will voluntarily agree not to enforce the patents during the pandemic.
Moderna Inc. said it wouldn’t enforce its patents related to Covid-19 vaccines during the pandemic, in an effort to not deter other companies and researchers from making similar shots.
“While the pandemic continues, Moderna will not enforce our Covid-19 related patents against those making vaccines intended to combat the pandemic,” the company said in a statement on Thursday.
This is a welcome surprise, but it still underlines two key points: yes, absolutely patents can and will get in the way of important life-saving innovations, and the idea that these companies “need” patents to develop these drugs is clearly bogus. Indeed, as KEI points out in a blog post about Moderna’s statement, it’s good to see the company admit that even after the pandemic is over, its patents may get in the way of important life-saving innovation, and pledges to make sure that it will be more open to licensing its patents after the pandemic:
It is notable that Moderna has addressed both the pandemic and the post pandemic period, stating “to eliminate any perceived IP barriers to vaccine development during the pandemic period, upon request we are also willing to license our intellectual property for COVID-19 vaccines to others for the post pandemic period.”
The key point: even if Iancu pretends otherwise, people actually in the space know that patents can and will get in the way of life-saving innovation, rather than acting as an important incentive.
It’s long past the time we recognized how damaging patents are for innovation in many different industries, including pharma, and having a Patent Office boss who simply denies reality is fundamentally unhelpful and anti-innovation.
U.S. Patent Boss Says No Evidence Of Patents Holding Back COVID Treatments, Days Before Pharma Firms Prove He’s Wrong
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