Written By: Alice Chuang
Life in 2020 has been heavily been dictated by the novel COVID-19 virus. With alarming infection and fatality rates has been changing what is considered the “new normal.”[1] Vaccine research and development around the world has come tremendous pressure, resulting in the global patent race for a COVID-19 vaccine.
Generally, a patent is an exchange between the inventor and the national government in which the inventor discloses to the public exactly how to recreate the claimed invention.[2] The incentive is the right to choose who, when, where, and how the invention is manufactured, used, or sold.[3] The patent essentially creates a sort of monopoly over the invention to recoup the investment costs of research and development.[4] While the frenzy to develop a vaccine for the COVID-19 may initially appear to be an altruistic desire to save the world, there are actually significant issues that the patent system causes for this industry as it alters the vaccine-creating motive and causes negative repercussions.
The monopoly that patents grant allows companies to charge prices above what would be available in the free market.[5] This is the freedom to upcharge for drugs that the world desperately needs to reduce the staggering fatality rates.[6] Even though the United States government could bypass patent rights, it would have to provide a hefty compensation to the patent holder.[7]The current system raises the question of whether the intent behind medicine production is solely for monetary gain or for actual public benefit, and whether that intent impacts how our healthcare system operates. What this means for the COVID-19 vaccine race specifically is that a single company could have monopoly over a product that is needed by people around the world and necessary to prevent deaths in many communities.[8] This patent translates to an immense economic power for one with many companies receiving nothing in return for their investments and work.[9] This will also open the floodgates to many patent infringement lawsuits.[10]
Economists and experts have suggested for many years now that the patent system does more harm than good for the healthcare system.[11] A better incentive system is a prize system that separates the act of inventing the vaccine from the actual drug production and distribution.[12] In a crisis situation, like the current global pandemic that we are in, nations should not be engaging in economic nationalism or relying on a patent system that does not foster the most efficient solution.[13] Ultimately, when it comes to a global health pandemic, a system that promotes helping all should be prioritized above economic gain – and the current patent system may not be the right system for that.
[1] COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU), Coronavirus Resource Center (Sept. 23, 2020, 7:15pm showing 31,759,233 cases worldwide and 973,904 deaths), https://coronavirus.jhu.edu/map.html [https://perma.cc/9GBZ-KZDB].
[2] Rebeca Echevarria Harasimowicz, The Global Patent Race for a COVID-19 Vaccine, NAT’L L. Rev. (Mar. 24, 2020), https://www.natlawreview.com/article/global-patent-race-covid-19-vaccine [https://perma.cc/Y54W-5Z3Y].
[3] Id.
[4] Natalie Stoianoff, Whoever Invents a Coronavirus Vaccine Will Control the Patent – and, Importantly, Who Gets to Use It, The Conversation (May 29, 2020), https://theconversation.com/whoever-invents-a-coronavirus-vaccine-will-control-the-patent-and-importantly-who-gets-to-use-it-138121 [https://perma.cc/JH9P-CDYK].
[5] Simon Lester, We Need a Coronavirus Vaccine. Patents Might Slow the Process., CATO Institute (April 8, 2020), https://www.cato.org/publications/commentary/we-need-coronavirus-vaccine-patents-might-slow-process [https://perma.cc/4L35-5X73].
[6] Supra note 1.
[7] Joel Wallace, Mad Dash to Coronavirus Vaccine May Face Legal Hurdles, IPWatchDog (Mar. 12, 2020), https://www.ipwatchdog.com/2020/03/12/mad-dash-coronavirus-vaccine-may-face-legal-hurdles/id=119790/ [https://perma.cc/7ZGH-D7A4].
[8] Simon, supra note 4.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
