The US Gov't Paid For Moderna To Develop Its Vaccine; But Moderna Wants To Keep The Patent All To Itself

from the no dept

Folks may know that when Jonas Salk created the polio vaccine he chose not to patent it, and when asked who owns the patent on it, responded: “Well… the people I would say. There is no patent… Could you patent the sun?”

Whenever people bring this up, patent maximalists — especially those in the pharma world — like to come up with all sorts of excuses about how that was “different” somehow. My favorite excuse was that he did this because “the public had funded the vaccine.”

Fast forward to today. Moderna, somewhat famously, helped produce one of the very first COVID vaccines using its mRNA technology. It’s a great thing (I got two Moderna shots in my own arm as soon as I could). You may have heard a lot about Moderna as well. While the company had been around for a decade, this vaccine is its first product on the actual market. It had been experimenting with mRNA technology, but hadn’t actually come out with anything until the COVID vaccine.

But — and this is the important part — it was the US government, and by that we mean “the US public,” who mostly funded Moderna’s COVID vaccine… and it was actually US government employees who did a lot of the important work. At the beginning of the pandemic, the US government gave Moderna $483 million dollars to work on the COVID vaccine. A few months later it gave another $472 million.

Also, Moderna now admits that US government employees were critical to the development of the vaccine:

Moderna acknowledged that scientists at NIH’s National Institute of Allergy and Infectious Diseases (NIAID) played a “substantial role” in developing Moderna’s messenger RNA (mRNA) vaccine…

So, “the public” funded this vaccine, and the public — via the government which represents us — helped do the scientific work necessary to make the vaccine.

But Moderna wants the patent. Indeed, it initially refused to even share the patent with the US government. Last month there was a bit of a legal fight as the NIH did the legal equivalent of asking Moderna “WTF?”

The vaccine grew out of a four-year collaboration between Moderna and the N.I.H., the government?s biomedical research agency ? a partnership that was widely hailed when the shot was found to be highly effective. A year ago this month, the government called it the ?N.I.H.-Moderna Covid-19 vaccine.?

The agency says three scientists at its Vaccine Research Center ? Dr. John R. Mascola, the center?s director; Dr. Barney S. Graham, who recently retired; and Dr. Kizzmekia S. Corbett, who is now at Harvard ? worked with Moderna scientists to design the genetic sequence that prompts the vaccine to produce an immune response, and should be named on the ?principal patent application.?

Moderna disagrees. In a July filing with the United States Patent and Trademark Office, the company said it had ?reached the good-faith determination that these individuals did not co-invent? the component in question. Its application for the patent, which has not yet been issued, names several of its own employees as the sole inventors.

Apparently the NIH and Moderna had been “negotiating” about this when Moderna made that filing. As this went public and people (rightly) started calling Moderna out for this bullshit, Moderna took a half step backwards and claimed that it was willing to share the patent with the US government (and said “Moderna remains the only company to have pledged not to enforce its COVID-19 intellectual property during the pandemic.”)

But, it seems like we should go a step further: there’s no reason to patent this. I have no problem with Moderna getting plenty of profit for its important role in developing the vaccine. And, it is. The company went from having losses every quarter through last year, to making billions in profit this year. It made over 7 billion in net income (not gross) this year through the first three quarters.

That’s not because of its patent. It’s because it’s producing something that is important to humanity, which governments are more than willing to pay for, and which remain in high demand globally.

So, don’t try to hog it. Don’t try to hog it from the US government. But don’t even try to “share it” with the US government. Share it with everyone. Let the people “own” it by refusing to patent it at all. After all, would you patent the sun?

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Comments on “The US Gov't Paid For Moderna To Develop Its Vaccine; But Moderna Wants To Keep The Patent All To Itself”

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40 Comments
Ehud Gavron (profile) says:

Articles that speak in their author's voice

Please don’t legitimize what Moderna is doing.

I have no problem with Moderna getting plenty of profit…

I do have that problem, and I didn’t author this article. One voice does not speak for the entire country of tax-paying people who contributed to this vaccine.

One voice cannot speak as to whether it’s legitimate or not for Moderna to be ballhogs.

It’s not about whether you or I "have a problem with Moderna…" or not. It’s 100% about whether Moderna should be allowed to steal the patent rights to a technology they developed as a work for hire, got paid $900M for, and don’t own.

I suspect not. Again, my opinion isn’t the determining factor here… the law SHOULD be. Attempts to say "Well maybe they do and maybe they do but I personally don’t think blah blah blah" just serve to legitimize this crap.

E

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James Burkhardt (profile) says:

Re: Articles that speak in their author's voice

It’s 100% about whether Moderna should be allowed to steal the patent rights to a technology they developed as a work for hire, got paid $900M for, and don’t own.

I highly doubt, as a matter of law, that Moderna signed a contract detailing their development of the vaccine as a work for hire. Indeed, it was pointed out over a year ago that the government grants were not work for hire development contracts, but grants with few strings attached, and absolutely didn’t require transfering or licencing the patent rights in any way. Even if the US government paid for every penny of development, the contract is king. Please source your claim that the vaccine formula was developed as a work for hire. Because as you say, your opinion doesn’t matter. What maters is the law, and you don’t just declare a work a work for hire. There are specific contractual requirements to be a work for hire.

One voice cannot speak as to whether it’s legitimate or not for Moderna to be ballhogs.

You seem to have taken Mike’s words to mean any amount of profit is okay, when his point was that Moderna can still earn a profit without being "ballhogs". I think under a better negotiator we could have paid less than we have, but I’m not going to be upset that moderna got paid, that they made a profit, or that they made good profits manufacturing the vaccine for the US government. BY abandoning those concerns and not debating the existence of capitalism, I can be free to address the concerns you actually have without having to wade into the shitstorm of cold war politics. I’m going to care that they are trying to lock up the formula via a patent, that they are using said patent to force the badly negotiated prices the US paid to be the prices the world pays, and that they think they are entitled to sole claim on the research.

Changing those things don’t need us to deny Moderna Profit at all. We can deny them a patent and they have already made a good profit.

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Thad (profile) says:

Re: Articles that speak in their author's voice

Again, my opinion isn’t the determining factor here… the law SHOULD be.

I don’t know if you’ve noticed, but there are some ways in which patent law could use some improvement.

In my opinion.

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PaulT (profile) says:

Re: Re: Re:

He probably means that he thinks that, because vaccines need boosters and don’t act as automatic immortality shields against new variants, then they don’t work at all, despite all the clear evidence to the contrary.

Stupid and simplistic, but the people profiting from these rubes know their audience.

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Scary Devil Monastery (profile) says:

Re: Re:

"Not only that, but it appears that it does not even really work."

Of the people hospitalized or dead in Covid I invite you to find the proportion which were vaccinated. You’ll find very few, all of whom had some serious pre-existing conditions like cancer, extreme obesity, immunodeficiencies, or were past 90 of age.

Go on, there are more than 800000 dead to investigate. Tally the ones who died despite being vaccinated.

Then, when you’ve found that the vaccine not only helps, it means some 90% who’d otherwise have died or become chronical long haulers simply don’t, we expect you to be back with a "Gosh, I never did do my own research, looks like".

…or, well, given how you nurgle cultists seem to think, you’ll just alter your religious belief to include another hundred million people all being in on the "lizard people conspiracy".

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Anonymous Coward says:

After all, would you patent the sun?

Mike are you seriously trying to suggest that some of these IP maximalists wouldn’t try to patent the sun (if they thought they could get away with it, and enforce it)?

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That One Guy (profile) says:

'I've decided in good faith I deserve all of your money.'

Moderna disagrees. In a July filing with the United States Patent and Trademark Office, the company said it had “reached the good-faith determination that these individuals did not co-invent” the component in question. Its application for the patent, which has not yet been issued, names several of its own employees as the sole inventors.

Bloody hell are they trying to kill as many people as the vaccine might have saved with the weaponized dishonesty they are bringing to the table? ‘We have engaged in a good faith discussion with ourselves and decided that we really deserve all the profits and credit.’

Sure Moderna, I’m sure that decision was made in good faith and not at all impacted by the money you stand to gain from it.

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Anonymous Coward says:

Drug company’s in the USA use patents to increase prices on drugs to increase profits many third world country’s cannot even afford to buy vaccines for civil servants doctors or nurse this is similar to what happens to public funded science research its locked up behind pay walls or in expensive journal subscriptions drug company’s can block generic drugs by changing patent or drug names slightly this is a tax on the public as it makes America the most expensive country in the world in terms of health spending
It’s all a big rip off like big telecom rips off consumers due to lack of competition like Comcast gets tax credits to provide expensive average service to us customers or provide only a basic service in rural areas

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That Anonymous Coward (profile) says:

Imagine my shock and surprise that someone who wants IP control likes to pretend no one else had anything to do with it and doesn’t deserve anything for it.

Of course someone could have added some limits to the loans and things to nip this in the bud before it even started but no one wants to risk their corporate sponsorship chances if the investment of our money pays off big for the corporation.

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Arijirija says:

Big problem here

Jonas Salk didn’t patent the polio vaccine. Polio is now extinct. Humanity, 1; polio, 0.

Moderna is trying to patent something it developed with taxpayer money, and with government agency help. Quite apart from the very bad taste that leaves in my mouth – I do try to keep my mouth shut, FYI – that amongst other things, means that the technology is not going to be as available as it should be, so the coronavirus is going to have plenty of major-sized reservoirs in which to mutate. Moderna’s in this for the long haul, obviously – they want to continue this blood-sucking policy for as long as they can screw the money out of the market – assuming that there will be a market in the long run, after all!

That is going to cost everybody quite a lot, and not just in monetary terms. If more variants like omicron turn up with the same long-term disabilities of the original "long covid", taxpayers won’t be able to continue paying – there’ll be a lot more deaths from preventable subsidiary conditions and situations such as irreversible poverty and exposure to the elements.

"Bail up! Stand and deliver! Your money or your life!" is not a fitting motto for a company manufacturing medical supplies. But Moderna appears to have adopted it.

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R.H. (profile) says:

Re: Big problem here

So, I was going to say that polio isn’t quite extinct. However, the last cases of wild polio were in January (one in Afghanistan and one in Pakistan) which is down from 94 in 2020. There were also 170 cases of circulating vaccine-derived poliovirus this year (this happens when there are too many unvaccinated people in a population and the weakened poliovirus from the vaccine infects them and mutates into a dangerous form again**). That 170 figure is down from 1069 in 2020 though and so polio may really be on the verge of eradication this time.

*Source who.int
**Source polioeradication.org

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Scary Devil Monastery (profile) says:

Re: Re: Re:3 Big problem here

"You’re against babies being allowed to live."

Last I checked what amounts to a wart on a woman’s uterus lining isn’t a "baby".

But thanks for demonstrating you don’t grok the difference between a sapient organism and a pea-sized conglomeration of cells.

The only clarification taking place here is that you’re opposed to women owning the right to their own body. The same principle sex traffickers live by.

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Ehud Gavron (profile) says:

Jonas Salk, Louis Pasteur, Marie Curie, et al

Lots of people didn’t patent things. Our society is better for it. They did not need an "incentive" to "create".

The question here isn’t one of whether Big Pharma CAN patent, it is whether they SHOULD given that the funding was public. This hearkens back to Australia’s CSIRO and WiFI. Don’t get me wrong, I love Australia, Aussies, and WiFi. Just not when it all goes to billing the whole world for it.
https://www.ipaustralia.gov.au/tools-resources/case-studies/csiro-wlan-patent

Moderna has a claim, but it should be secondary to its debt to US taxpayers for funding the research. Public funds should provide for public good.

That’s my piece.

Peace.

E

David says:

Re: Jonas Salk, Louis Pasteur, Marie Curie, et al

Moderna has a claim, but it should be secondary to its debt to US taxpayers for funding the research. Public funds should provide for public good.

It’s U.S. public funds, so this logic only extends to patents that are valid in the U.S. That does not help a whole lot for the global situation. A solution for the problem needs to apply to other jurisdictions, and that would have needed to be done right in the research grant conditions. U.S. patent law alone cannot address it since the most relevant patent jurisdictions for global vaccine production and distribution matters are not under direct U.S. control.

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aethercowboy (profile) says:

When I worked for NASA, I was surprised to discover that THEY had patents, and that they would exclusively license some of those patents out to private organizations. Then I discovered that public universities using government grants were also getting patents (and suing people who they believed violated said patents).

The problem runs much deeper than Moderna and speaks of a wider need for common sense patent reform.

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Scary Devil Monastery (profile) says:

Re: Re: Re:

Prohibit any campaign contributions not coming from an easily auditable origin. Set aside public funds sufficient for basic campaign ads for any party (not candidate) polling sufficiently high. You’ll be rid of 99% of the corruption in one fell swoop.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Re:

"Any party? Like two sides of the same counterfeit coin…"

It works for most of Europe. Not sure what I can tell you if you mean to imply this is yet another way the US can’t hack stuff the rest of the world figured out a century or more ago.

Mind you, getting ranked choice rather than first past the post in effect would help with the two-party idiocy you guys, the UK and Australia are still stuck in.

Scary Devil Monastery (profile) says:

Apples and Oranges...

Jonas Salk was a scientist, researcher, and physician. That’s another and far nobler creature than a modern pharma company which could best be described as a gatekeeper facilitator or grifter beholden to Imaginary Property.

Who, if they were asked whether you could patent the sun, would probably respond in a manner which would fit them in old Frederic Bastiat’s old "Candle Maker’s Petition".

Anonymous Coward says:

Of course, they are going to hog because that what hogs do

Of course, the corporation is going to hog. Isn’t this be to expected of Big Pharma? The corporate elite who control the Big Pharma corporations love accumulating wealth and power like it is a game to them. Making medicine more accessible is not their thing, after all they are in the money-making business, not in the life-saving business. Relative scarcity of medicine they are selling means more profits for them so of course they are not fans of sharing patents or compulsory licensing. There’s plenty of Martin Shkrelli-wannables in the business, just that they are less stupid and more discreet about their greed. of course they are going to hog like the pigs they are. The objective is making money as much money they can. Reducing human misery or playing fair is not on the corporate agenda because it takes away profits and the Almighty Dollar is what they are about, not human lives. Of course, they will lie and cheat and bribe their way into maximum profits as legally as possible. that’s their game and that where the big profits come from. It’s Cronyism Capitalism at its finest; taking as much you can from the public.

Where’s the profits in sharing? Where’s the profits in being "fair" to the public? Of course Moderna is going to hog. Pigs will be pigs. How can we fault them if it’s us who incentivizes them to do what they do? It’s just capitalism. Its not a pretty beast. The problem I see here is not with them, but how we incentivize them. We pay Moderna to develop medicine and sell medicine; we didnt pay them to make said medicine accessible as possible to save lives or to save lives… see the difference and the problem? It’s this stupid Imaginary Property culture.

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