Bad Idea Is Bad: Senator Sasse Wants To Give Whoever Patents COVID-19 Treatments 10 Extra Years Of Patent Protection

Patents

from the because-we'll-still-be-fighting-it-in-2050? dept

It’s amazing how two people can look at the same situation and see the exact opposite conclusions. As experts are pointing out that to fight COVID-19 we should be relaxing intellectual property laws to enable more experimentation and collaboration, some have decided what we really need is more locking up of knowledge, and apparently Senator Ben Sasse falls into that ridiculous camp. We joked a few weeks ago about a law professor who’s never seen an intellectual property law he didn’t want to make worse, saying that pharma companies needed longer patent terms to incentivize the creation of treatments, but we didn’t think anyone in power would actually take that nonsense seriously.

Senator Sasse, however, took up the ridiculous challenge, and has introduced the Facilitating Innovation to Fight Coronavirus Act. It’s a bad, bad, bill that makes no sense at all, but it’s separated into two sections that have no business being together in a single bill other than as a ridiculous way to try to convince people who want one provision to support the other. Let’s start with the first provision, that actually does make sense. It would take away laws that are blocking some doctors from helping, and also blocking doctors from making use of unproven but potentially valid treatments:

Notwithstanding any other provision of Federal, State, or local law, no health care provider shall be liable in any Federal, State, or local civil proceeding for?

(1) using or modifying a medical device for an unapproved use or indication;
(2) practicing without a license or outside of an area of specialty if instructed to do so by an individual with such a license or within such an area of specialty; or
(3) conducting the testing of, or the provision of treatment to, a patient outside of the premises of standard health care facilities;

where such action was carried out to test, treat, or otherwise counter the effects of the Coronavirus Disease COVID-19 during the duration of the national emergency…

Those issues have been blocking doctors from being able to help during this pandemic. And, yes, there are reasonable fears concerning snake oil treatments and nonsense spewed by cranks and non-doctors, but most doctors are not pushing snake oil and aren’t cranks. If they can help out, they should be able to do so — and as we learn more and more about what works, having to wait until something is an “approved use” has already been frustrating many.

But, those good ideas are completely drowned in the muck of the horrible idea Sasse has tied to it: extending patent terms for COVID-19 treatments. First, the bill says that the patent term won’t be considered to start until after the national emergency is over and then, on top of that, it grants any COVID-19 related patent 10 extra years of protection, which would mean more than 50% more than any other patent.

EFFECTIVE DATE.?Notwithstanding any provision of title 35, United States Code, with respect to an eligible patent, the term of the patent shall not begin until the date on which the national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.) with respect to that disease terminates.

LENGTH OF TERM.?Notwithstanding any provision of title 35, United States Code, with respect to an eligible patent, the term of the patent shall extend for 10 years longer than it otherwise would under such title.

And what is an “eligible patent”? Well, basically anything that is helpful in treating COVID-19, even if it’s already patented:

In this section, the term ??eligible patent?? means a patent issued for a new or existing pharmaceutical, medical device, or other process, machine, manufacture, or composition of matter, or any new and useful improvement thereof used or intended for use in the treatment of the Coronavirus Disease 2019 (COVID?19).

If this became law, you can bet tons of ancillary drugs and devices would suddenly try to claim those ten extra years of exclusivity. I’m not even sure how this law would apply to things that are already off-patent but are used. Would they suddenly go back on patent for 10 years? The bill is terribly drafted and appears to have been written by someone who doesn’t understand how any of this works.

I get that there’s a desire to create incentives for stopping the pandemic, and that some very ignorant people think the patent system is the only incentive lever that exists for innovation, but that’s utter nonsense. You just need to look around. Tons of companies are stepping up to work on this problem, because another incentive is not watching millions of humans die. That’s kind of a big one. Also, just being a good citizen of the world.

Second, it’s difficult to see how any of this makes any sense anyway. If the treatment is something that’s actually new and patent-eligible, then patents filed now won’t be approved for quite some time, possibly over a year at which point one hopes that we’re out of this pandemic. But, even so, the bill is written to suggest that we’ll be fighting COVID-19 for the next 30 years. And if that’s the case, we’re going to have much bigger problems on our hands than how long some pharma company’s patents last.

Finally, this is completely brain-dead public policy. The entire point of patents is to create a monopoly so that the creators can charge monopoly rents. We already have some general issues with how that makes any sense in a free market economy, but, in the midst of a worldwide pandemic, this makes less than no sense at all. It’s a law that is literally designed to jack up the cost of treating COVID-19. Because that’s what patents do. They create a monopoly so the sole supplier can increase prices. Right now we need widespread solutions that can quickly be deployed globally. Jacking up the price of it makes that impossible.

There is no sensible model in which this approach makes any sense at all.

Filed Under: ben sasse, covid-19, exclusivity, patents, rent seeking