Wed, 06/23/2021
This post is a summary of Episode 23 of The Nebraska Governance & Technology Center’s (NGTC) Podcast Series, Tech Refactored. In this episode, host Gus Hurwitz, Director of the NGTC was joined by Christal Sheppard, Adjunct Law Professor at the University of Nebraska College of Law, and Samatha Zyontz, Research Fellow in Intellectual Property at Stanford Law School.
Technology is the wheel upon which our contemporary society turns. In the blink of an eye, innovations in one part of the world have life-changing effects on people on the other side of the globe. The potential scope of a new idea means that the prospective returns on a new technology are enormous, and that creates tremendous incentives for developers to engineer new products and methods. But modern innovations frequently require substantial up-front investments, and if another player can come along and make the same product, skipping the research and development and going straight to manufacturing and selling a product, then that would have a profound chilling effect on innovators who otherwise would invest the blood, sweat, and tears that invention requires.
Our collective solution to this problem is the global system of patents. Patents allow developers to protect the product of their creative work, prohibiting others from copying their innovations for a specific period of time and allowing them to exercise an exclusive right on the sale of their new product during that period. Of course it isn’t enough for an inventor to claim that they developed a product, their claims to having arrived at that idea first have to be certified by a governmental body, giving their claims the force of law. In the United States the body that certifies that those innovations are original is the United States Patent and Trademark Office, an agency of the US Department of Commerce that checks patent claims against a global registry, and issues the patents that protect developers’ innovations.
Recently, patents have played a comparatively outsized role in the news in the context of Covid-19 vaccines. There has been significant pressure on companies like Pfizer, Moderna, and AstraZeneca to waive their patent rights over their vaccines in order to allow other companies, particularly in the developing world, to produce doses at scale. Proponents of protecting those companies' patent rights say that removing those protections would disincentivize companies to make the substantial investments, and tolerate the risks of failure, that are necessarily part of producing a vaccine. Some have argued that if a precedent is set that, in cases of a global pandemic, companies will have their patent rights ignored, then companies won’t take a chance on such a risky proposition. Proponents of using the World Trade Organization to release vaccines from patent protections, in turn, make a number of arguments, including that the substantial direct investment in vaccine development that was made by government actors means that the pharmaceutical companies shouldn’t be able to exercise the same level of control over their Covid-19 vaccine intellectual property, and secondly that sufficient profit incentives already exist to encourage pharmaceutical companies to develop vaccines in cases of global pandemic.
Both Sheppard and Zyontz argue that the issue of patent protections in the Covid-19 context is a bit of a red herring, in that it is not the fundamental barrier that is keeping developing countries from producing vaccines. Instead, they argue that more fundamental barriers exist to opening up production in developing countries in the form of infrastructure and expertise. The facilities needed to produce mRNA vaccines in particular require substantial investments, take a long time to construct, and require sophisticated equipment that is not readily available, particularly during the present global supply-chain crunch. Building a pharmaceutical manufacturing facility requires significant engineering expertise, and the cases in the United States where facilities have produced bad batches of vaccines show that these production processes are far from straightforward, even in the best of circumstances.
Zyontz argues that, rather than waiving patent protections and focusing on the process of building up production capacity in developing countries, people in the developing world would be better served by “not trying to get everybody else to (produce vaccines), but let’s produce as much as we can and just send the vaccines out. And then help with distribution and not really worry so much about the manufacturing, because at this point, I think (it’s) going to be faster to get the people who know how to do it, as opposed to training all these people, which, by the way, is time consuming.”
Hurwitz makes the argument that, rather than spending time and energy debating whether or not the patent rights should be released, the practical reality is that releasing the patent would be harmless because the production capacity doesn’t exist in these other countries, and instead opponents of waiving the vaccine patent protections should cede the point so that everyone can focus on the more tangible barriers to global vaccine production and distribution.
One of the other barriers to global vaccine uptake that Hurwitz identifies is trust; there is a substantial amount of suspicion, both domestically and internationally, about the vaccine development and manufacturing process, and Hurwitz argues that some potential recipients might be dissuaded from receiving a vaccine because of the simple fact that it originated in the United States, a country that they have come to mistrust. Sheppard argues that a partial solution to this problem lies in the fact the United States no longer has a totally dominant market position in terms of vaccine development and production; there is a Russian vaccine (Sputnik 2), a Chinese Vaccine (CoronaVac), and Europe also has played a joint role with the U.S. in the development of vaccines in the form of transnational pharmaceutical companies.
Zyontz acknowledges that, in terms of vaccine acceptance, there will always be some degree of difficulty in terms of mass vaccine uptake in the form of the problem of holdouts. Zyontz’s solution to this is to take an incremental approach. “A lot of this is just trying to buy time and addressing each group of (holdouts) who need to be incentivized differently in order to get them vaccinated, because at the end of the day, that’s really what we care about: getting as many people vaccinated safely (as possible).
Lastly, Hurwitz returned to the issue of whether, by waiving vaccine patent protections in hopes of increasing vaccine availability, we might disincentive future vaccine development. Hurwitz wondered whether we are “risking the entire pipeline of future cures, the future solutions that mRNA vaccines in particular might offer, in order to speed the pipeline of addressing the current (crisis).” Sheppard believes that, by waiving patent protections in the Covid-19 context, “the chilling effect will be felt for decades.”
“It’s more than a slippery slope,” Sheppard offered. “It’s worse. It’s ‘how much farther down this rabbit hole do we have to go?’”
Tags: Tech Refactored Review
