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.

Takeaways

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.

What happens if a COVID-19 vaccine receives patent protection?

Hopefully, insurance companies and government organizations work to ensure equal access; however, the manufacturer could charge higher prices for that vaccine.

What are the benefits of distributing multiple COVID-19 vaccines?

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.

Can I see my family at the holidays?

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.