After a long 13 months living with COVID-19, the world finally has some concrete hope of a light at the end of the tunnel. In the United States, health care workers received the first doses of the Pfizer-BioNTech vaccine on Monday. In addition, Moderna’s vaccine looks set to receive FDA approval shortly. Over the coming months, millions of Americans will receive a COVID-19 vaccine from one of these companies. Moreover, and thankfully, these vaccinations will likely come at little or no cost; both the pharmaceutical manufacturers and insurance providers promised to keep vaccination costs down. After all, we’re in the middle of a pandemic, in which your actions (or inactions) affect countless others. However, this raises an interesting question – should pharma companies waive COVID-19 patent rights?
The patent system serves two seemingly opposing goals – protecting an inventor’s initial idea, while promoting further innovation. For a limited time, the inventor retains the right to exclude competitors from making, using, or selling his/her invention. In return, those same competitors learn from the patent and improve the art by trying to innovate around the patent. As such, the patent world creates somewhat of a competitive imbalance, seemingly at odds with free market ideals. For example, an inventor can create a monopoly of sorts, excluding meaningful competition, until the patent expires. As such, the inventor can charge higher prices while the patent exists, with costs decreasing after expiration.
COVID-19 Vaccine – Patent or Waive Patent Rights?
That brings us to the COVID-19 vaccine efforts and a major ethical question. Facing a global pandemic with over 300,000 deaths in the United States alone, is it fair to patent a vaccine? To put it another way, should companies waive their COVID-19 patent rights to ensure equal access?
As a patent attorney, you might think I’d be fully on the “patent above all else” train. However, I think there’s a much better answer to this question than a binary patent/don’t patent dichotomy. One advantage of filing a patent application is that the application eventually publishes, becoming prior art for future applications. As such, Pfizer or Moderna could file a patent application, ensuring that it publishes, creating a prior art barrier. Then, the companies could ensure that obtaining a patent monopoly on a similar vaccine technology would be extremely difficult. Such an application accomplishes two goals: researchers can learn from and improve upon the tech, while being unable to easy obtain patent protection on the improvements.
Whether pharma companies will waive COVID-19 patent rights remains to be seen. In addition, countries around the world are trying to decide how to handle a vaccine. Obviously, vaccines must be distributed to as many people as possible to overcome the continuous spread of COVID-19. One way to provide knowledge to researchers while dedicating to vaccine distribution is to publish and abandon a patent application. That way, pharma companies can waive patent rights for a COVID-19 vaccine while benefitting future generations.
Hopefully, insurance companies and government organizations work to ensure equal access; however, the manufacturer could charge higher prices for that vaccine.
With the obvious caveat of as long as the vaccines receive FDA approval, the more the merrier. More vaccines means greater competition, theoretically keeping costs down for all vaccines.
Since these vaccines will not receive widespread adoption for a very long time, CDC guidelines recommend avoiding large gatherings, particularly indoors. Unfortunately, that means we’ll all face a very different holiday season this year.