US Patent Boss Says No Evidence Of Patents Holding Back COVID Treatments, Days Before Pharma Firms Prove He's Wrong

from the say-again dept

A week or so ago, the head of the US 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.

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Filed Under: andrei iancu, covid-19, innovation, patents
Companies: allele, biontech, moderna, pfizer, regeneron


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  • icon
    Code Monkey (profile), 9 Oct 2020 @ 4:31am

    ..No incentive..

    Hey, Andrei Iancu, you make an excellent point.

    I refer you to Dr. Jonas Salk, who invented the cure for polio. If he hadn't secured that patent, imagine all the billions of dollars he would have lost....

    ......oh, wait, THAT NEVER HAPPENED. He NEVER patented it. He gave it away for THE GREATER GOOD OF SOCIETY, not to make fistfuls of cash....

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Oct 2020 @ 6:40am

      Re: ..No incentive..

      It has been widely reported for many years that the absence of a patent was due to attorneys having advised Salk’s employer that the invention was not patentable because of the prior art.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Oct 2020 @ 6:54am

        Re: Re: ..No incentive..

        Do you have a reference for that claim?

        reply to this | link to this | view in chronology ]

        • icon
          Code Monkey (profile), 9 Oct 2020 @ 1:13pm

          Re: Re: Re: ..No incentive..

          https://www.history.com/news/8-things-you-may-not-know-about-jonas-salk-and-the-polio-vaccine

          Point number 6:

          Salk did not patent his vaccine.

          On April 12, 1955, the day the Salk vaccine was declared “safe, effective and potent,” legendary CBS newsman Edward R. Morrow interviewed its creator and asked who owned the patent. “Well, the people, I would say,” said Salk in light of the millions of charitable donations raised by the March of Dimes that funded the vaccine’s research and field testing. “There is no patent. Could you patent the sun?” Lawyers for the foundation had investigated the possibility of patenting the vaccine but did not pursue it, in part because of Salk’s reluctance.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 9 Oct 2020 @ 4:06pm

            Re: Re: Re: Re: ..No incentive..

            but did not pursue it, in part because of Salk’s reluctance.

            Which is not the lawyers advising Salk not to patent, but Salk saying he did not want to patent. So you evidence disproves your original point.

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 9 Oct 2020 @ 4:11pm

              Re: Re: Re: Re: Re: ..No incentive..

              I think you might be getting posters mixed up, their original comment was that Salk didn't want to patent the vaccine, with the evidence supporting rather than refuting that.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 9 Oct 2020 @ 4:45pm

                Re: Re: Re: Re: Re: Re: ..No incentive..

                Yeah, it was an AC who made the unsubstantiated claim about lawyers and it not being patentable.

                reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Oct 2020 @ 7:38pm

          Re: Re: Re: ..No incentive..

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 14 Oct 2020 @ 11:57pm

            Re: Re: Re: Re: ..No incentive..

            "BIO is the world's largest trade association representing biotechnology companies..."

            Do you have any cites without clear incentives to misrepresent the story?

            I'm going to guess not, since all that's really on that page is a summary and link to a random WSJ op ed that's hidden behind a paywall.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 15 Oct 2020 @ 3:05am

              Re: Re: Re: Re: Re: ..No incentive..

              Of course, but you can save time by reading the article as it identifies one such source.

              reply to this | link to this | view in chronology ]

              • icon
                PaulT (profile), 15 Oct 2020 @ 3:28am

                Re: Re: Re: Re: Re: Re: ..No incentive..

                "reading the article"

                Which article? The one that's locked up and I won't be paying for, or the one written by people who directly profit from making sure Salk's gift doesn't happen again?

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 15 Oct 2020 @ 3:42am

                  Re: Re: Re: Re: Re: Re: Re: ..No incentive..

                  The article is the one in Bio. It references a book published many years ago by a researcher who had access to documents created at the time of Salk’s research into a vaccine for polio.

                  Maybe another article on a site that is not tied to the pharma industry might make you happy, but that seems doubtful. It too talks about the researcher and her book.

                  https://slate.com/technology/2014/04/the-real-reasons-jonas-salk-didnt-patent-the-polio-vaccin e.html

                  BTW, late in his life Salk worked on a vaccine for AIDS. The company with which he was then associated did file for patents on the results of that work.

                  reply to this | link to this | view in chronology ]

                  • icon
                    PaulT (profile), 15 Oct 2020 @ 6:00am

                    Re: Re: Re: Re: Re: Re: Re: Re: ..No incentive..

                    "It references a book published many years ago by a researcher who had access to documents created at the time of Salk’s research into a vaccine for polio."

                    It does, it's also pretty obviously pushing hard on the spin. I mean:

                    "Salk implied that the decision was a moral one, but Jane Smith, in her history of the Salk Vaccine, Patenting the Sun, notes that whether or not Salk himself believed what he said to Murrow, the idea of patenting the vaccine had been directly analyzed and the decision was made not to apply for a patent"

                    Erm, Salk made a moral choice in that summary of events. The fact that some immoral lawyers did some digging without his knowledge does not change that, no matter how much the scummy people writing that post believe it. Even the article you're quoting goes on to conclude that nobody knows if they'd have actually patented it if the research suggested they could. This is just spin and misdirection from people who profit from patents above human lives.

                    "Maybe another article on a site that is not tied to the pharma industry might make you happy, but that seems doubtful"

                    Well, when you're referring to someone who famously put human lives above money, an article titled "Jonas Salk: Good at Virology, Bad at Economics" does indicate that the person writing it is not being particularly objective.

                    But, the quote from Smith does seem to confirm the original claim that lawyers did look into the possibility of a patent. Which doesn't detract from Salk's own actions, no matter how much some people pretend that it does. The fact is - Salk's action saved many lives even if it cost some Trump types a lot of money.

                    "The company with which he was then associated did file for patents on the results of that work."

                    Yeah, employment contracts do tend to cause you to do things you wouldn't choose to do if you had the same choice as when you owned the research. Such is the problem with modern medicine,. You can't necessarily do all of it in a small lab in the 80s like you did in the 40s, and with the bigger facilities comes a price. That doesn't mean Salk approved of it, but it seems very dishonest to use that to suggest that he wasn't driven by altruism in his former actions.

                    reply to this | link to this | view in chronology ]

                    • identicon
                      Anonymous Coward, 15 Oct 2020 @ 7:11am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: ..No incentive..

                      The decision to proceed or not with filing an application for a US letters patent almost invariably resides with the employer of an inventor, and not the inventor himself/herself. The fact no such application was made, while by itself not determinative, does tend to support the statement that in the case of the polio vaccine a patent application was unlikely to lead to the eventual issuance of a patent, as is reported in the recited book by Jane Smith.

                      Again, while not determinative, it is of interest to note that later in Salk’s career a patent application was filed by his employer concerning his work on an AIDS vaccine.

                      reply to this | link to this | view in chronology ]

                      • icon
                        PaulT (profile), 15 Oct 2020 @ 7:31am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: ..No incentive..

                        "The decision to proceed or not with filing an application for a US letters patent almost invariably resides with the employer of an inventor, and not the inventor himself/herself"

                        OK. So, why the attempts to diminish the import of Salk's willingness to give away the patent without personal profit, if it wasn't ultimately his decision according to these more recent claims? Nobody will deny that bottom feeding lawyers would snap up a patent in an instant even if they were to doom millions of lives in the process, but that doesn't detract from Salk's unwillingness to patent the product himself.

                        "as is reported in the recited book by Jane Smith"

                        Yes, that single non-contemporary source does seem to come up a lot, doesn't it?

                        "Again, while not determinative, it is of interest to note that later in Salk’s career a patent application was filed by his employer concerning his work on an AIDS vaccine."

                        By his employer, yes. I'm sure my employers over the years have done many things that I wouldn't personally agree with. So?

                        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Oct 2020 @ 7:43am

        Re: Re: ..No incentive..

        I call bullshit.

        reply to this | link to this | view in chronology ]

      • identicon
        Rocky, 9 Oct 2020 @ 8:10am

        Re: Re: ..No incentive..

        Salk wasn't interested in a patent, the lawyers for the National Foundation for Infantile Paralysis on the other hand...

        There have been several "attempts" to cast shade on Salk with the same excuse you gave above that it wasn't a moral decision but a matter of non patentability, all seemingly coming from people who are pro-ip and is often followed up with the excuse that patents is almost the only means of "incentivize medical innovation".

        It's like curing sick people isn't enough of a incentive for some.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 Oct 2020 @ 8:48am

          Re: Re: Re: ..No incentive..

          Yeah, the argument holds no water ...
          it was not patentable back then but it certainly is now! - LOL

          reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 9 Oct 2020 @ 10:01am

          Re: Re: Re: ..No incentive..

          "There have been several "attempts" to cast shade on Salk with the same excuse you gave above"

          I've not heard it, but ultimately the end point is the same. Whether Salk didn't get a patent through choice or circumstance, the benefits of the vaccine not being under patent are clear.

          "It's like curing sick people isn't enough of a incentive for some."

          Sadly, this is true. Many people are in the medical field, especially in the US, for the express purpose of making lots of money. This is why there's so much pushback against "socialised medicine" over there - some people genuinely believe that if you can't get rich by helping people, nobody will bother. That doesn't reflect well on them, but that's the system over there.

          reply to this | link to this | view in chronology ]

          • identicon
            Rocky, 9 Oct 2020 @ 2:05pm

            Re: Re: Re: Re: ..No incentive..

            The attempts that has been made has framed Salk's answer to Morrow's question as either that the research was already paid by the people (through the March of Dimes) so he couldn't patent it without looking bad insinuating that he probably would have tried patenting it if it was privately funded, or that his answer was naive to the realities of how difficult and expensive it is to get medical research done and then making money off it.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2020 @ 5:36am

    "while it is necessary to ensure that critical treatments are widely available to the public, intellectual property rights "must always be respected"

    Sorta like sayin I'm not racist but ...

    Also, how does one "respect" intellectual rights? I suspect this is another instance where the word respect is misused.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Oct 2020 @ 6:50am

      Re:

      When someone in authority talks of "respecting" laws, they mean obeying them (whether or not the relevant laws of worth of actual respect).

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Oct 2020 @ 4:49pm

        Re: Re:

        Respect is earned, not sure how a law does that.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 12 Oct 2020 @ 2:05am

          Re: Re: Re:

          "Respect is earned, not sure how a law does that."

          By being a law everyone can agree with, which does not negatively impact more people than it positively impacts, and does not carry as collateral damage actual harm to core principles of national charters.

          I.e. "Don't kill people" is a good law which observes proportionality and rationality.

          "Copyright" fulfills no such criteria and is, like any other Red Flag Act, only viable for as far as lobbies pour sufficient money into having it upheld.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 12 Oct 2020 @ 4:38am

            Re: Re: Re: Re:

            Actions of a judiciary, applying the law in a rational manner, could earn respect but the law its self earns nothing as it is just words.

            reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 14 Oct 2020 @ 1:47am

              Re: Re: Re: Re: Re:

              "...the law its self earns nothing as it is just words."

              That's a bit like claiming bricks are worthless because it's the house which matters.
              I think we're going to have to accord words a lot of respect because until we invent full sensory telepathy that's what we're going to be stuck with when it comes to evaluating the intent and principles of an actor with which we are not already intimately familiar.

              reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Oct 2020 @ 10:08am

      Re:

      How to respect IP rights? By flipping them the bird and telling them to piss off.

      Face it, the maximalists only care for personal profit above all else. Any good they do for society is a means to that end and nothing more. If they could be spoon fed money for just existing they would gladly do so and never lift a finger to help society again. Their actions on pharmaceutical price gouging, slight formula tweaks to repatent existing drugs, constant insistance that no one would make anything if money wasn't changing hands, demands for increased monetary compensation in so called free trade agreements, etc. all prove their corrupt intent.

      This is true of both patents and copyright maximalists in every industry. With similar evidence and tales in each respective industry. The only goal these idiots have is money and the power to enforce their extraction of it. They have been perverting the entire concept of democracy and in the case of investor state dispute agreements literally destroying it. Stop trying to pretend otherwise, you are just helping to hide their corruption.

      reply to this | link to this | view in chronology ]

  • icon
    Who Cares (profile), 9 Oct 2020 @ 6:17am

    Mike Masnick wrote:

    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.
    Not if they make the vaccine that is being developed by Oxford/AstraZeneca. The method for making that one will be available to all who want to produce it as long as the resulting product is sold at cost. I do have to say that that the last time I checked this is one of the reasons that no producer in the US has taken up the offer.

    reply to this | link to this | view in chronology ]

    • icon
      Who Cares (profile), 9 Oct 2020 @ 6:18am

      Re:

      Ugh Why did the flipping mark down continue after I skipped a line?

      reply to this | link to this | view in chronology ]

      • identicon
        Rocky, 9 Oct 2020 @ 6:31am

        Re: Re:

        No double-space at the end of the quote.

        reply to this | link to this | view in chronology ]

      • icon
        Tanner Andrews (profile), 10 Oct 2020 @ 11:14pm

        Re: Re:

        Why did the flipping mark down continue after

        This ``markdown'' stuff has myriad disadvantages. For that reason, some web sites have been using a technology commonly called ``HTML''. It uses a different form of tagging that seems to meet with fairly wide acceptance. Not sure whether the folks running Techdirt have run into it, however.

        Then, too, there is the preview option. Though I have seen things slip through preview before, it is often a good pre-posting test.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 10 Oct 2020 @ 11:54pm

          Re: Re: Re:

          "This ``markdown'' stuff has myriad disadvantages"

          ...and many advantages

          "For that reason, some web sites have been using a technology commonly called ``HTML''"

          Hypertext markdown language, huh?

          "Not sure whether the folks running Techdirt have run into it, however."

          Yes, they have. Bottom line - HTML used to used here, but people whined about it when they forgot to close tags or something similar. They switched to markdown, now people are whining for different reasons.

          reply to this | link to this | view in chronology ]

    • identicon
      Bobvious, 9 Oct 2020 @ 4:21pm

      Re: resulting product is sold at cost.

      I do have to say that that the last time I checked this is one of the reasons that no producer in the US has taken up the offer.

      Although I wouldn't be surprised if one of those who aren't taking it up sued Oxford/Astrazeneca for patent infringement, should they have the audacity to actually release a reasonably priced vaccine. I'm sure a few submarine patents will surface then.

      reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 9 Oct 2020 @ 7:59am

    i'm sure the vast majority of the patent trolls are waiting to see what's actually developed before striking, they'd rather not have to deal with governments working to strike down their patents if they're seen as gumming up ther works. Once something is developed and out there, then they'll sue.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 9 Oct 2020 @ 11:15am

    So.

    Pharma goes around getting all the Science and doctors to work on things, at WAGES cost.
    They Gather every bit of data they can, so they can declare they have the data/testing, NOT created by them, from around the world.
    For the wages they have paid, and the FREE data they accumulated from around the world. They will get a Patent. Even at Pennies profit its worth a small fortune, and if over priced by even $1, its still going to the billions of dollars. For those investors, It might be a boon, but I will hold that, as I will think the Top wages will match what the Stock holders get.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Oct 2020 @ 11:30am

      Re: So.

      "Pharma goes around getting all the Science and doctors to work on things, at WAGES cost."

      Let us not forget the enormous benefit corporate pharma obtains from public funded research.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 9 Oct 2020 @ 11:49am

    'It's fine, dont' worry about it...'

    Arguing that patents would never chill innovation or creativity is rather like claiming that someone sitting under the sword of Damocles would have no reason to worry, in that you have to be willfully blind and dishonest or incredibly naive not to see the very real threat facing the person/company involved and how that would influence their actions.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2020 @ 1:39pm

    Without...

    Without all the money in our possession, we have no incentive to rip you off.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Oct 2020 @ 6:09pm

    Given the sheer numbers of dead COVID victims, Allele Biotechnology and Pharmaceuticals should be classified as a hostile entity within the United States and its members imprisoned, the company taken over by the government and all of its patents auctioned off.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 11 Oct 2020 @ 12:47am

      'If you can't use it responsibly you don't get it keep it'

      While understandably tempting imprisonment might be overkill and a hard sell in court, however you could likely hurt them much more by simply seizing the patents and putting them into the public domain so that they couldn't be used by anyone to sue someone and potentially tie up resources better put towards developing drugs/treatments to keep people alive.

      reply to this | link to this | view in chronology ]


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