The Colorblind Patent System

The basis of the patent system as stated in Article 1, Section 8, Clause 8 of the Constitution of the United States says that “[the United States Congress shall have power] [t]o promote the Progress of Science and useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” When written, patents were intended not to be a natural right, but for a benefit of society. But when the intended benefit to society only benefits historically advantaged individuals, this exclusivity should be called into question.

The U.S. patent system was originally established in 1790 to encourage innovation by granting inventors patents, which excludes others from making, using, or selling their invention or importing it to the United States for a given period of time. The goal of issuing patents was to have a system that promoted the production of devices and products dedicated to serving the public. By guaranteeing rights and protections for inventions, patents have changed the world.

With the high investment price in the biotechnology and pharmaceutical industry, companies that invent products expect to recoup their investment through exclusivity provided through patent protection. A patent's window of exclusivity allows pharmaceutical companies to charge higher-than-competitive prices for their products, which further incentivizes the patent holder to extend the exclusivity window by filing additional patents.

Moderna, a biotechnology company and manufacturer of a SARS-CoV-2 vaccine, pledged in October 2020 that they would not enforce patent rights related to their experimental vaccine because “[We] feel a special obligation under the current circumstances to use our resources to bring this pandemic to an end as quickly as possible.” Moderna is not the only company to make a pledge like this, AstraZeneca and AbbVie soon followed. While this patent pledge might seem altruistic, there are strong economic incentives that serve the interests of pharmaceutical companies, such as:

1. to increase the adoption of a specific technology to stimulate demand for market space.
2. to attempt to satisfy corporate social responsibility. 

By Moderna engaging is a loss-leader strategy, a common tactic for a business that first enters the market, it enables them to accomplish both. Moderna’s patent pledge extends through “the end of the pandemic” but the company has said they are willing to negotiate licenses of its technology, most likely on a fee-bearing basis, for the post-pandemic period. This means that if there is widespread adoption of Moderna’s technology during the pandemic, then other competitors will need a paid license from Moderna to continue distribution after the pandemic is over.

But what do they mean when they say, “the end of the pandemic?” It is a critical question that could have extra heavy implications for communities that have been further marginalized by the COVID-19 pandemic.

Black and brown communities living in healthcare deserts have been disproportionately impacted by the virus and are faced with limited testing sites and quality access to care. Currently, Black Americans are nearly four times as likely to be hospitalized and three times as likely to die from COVID-19 than white Americans. Without proper and affordable access to the SARS-CoV-2 vaccine, these statistics will only grow.

Moderna’s SARS-CoV-2 vaccine, like numerous others, is being bankrolled by the United States government, which is a unique situation. With the government's investment, the need for Moderna to quickly recoup their costs is not as high of a priority so they are able to charge a “reasonable” price for the vaccine for now. But when the pandemic ends the ability to enforce patents and charge monopolistic prices are fair game.

As Americans, we need to be wary of how the vague language surrounding Moderna’s patent pledge could negatively impact the lives of millions. Unless the “end of the pandemic” symbolizes 100% vaccination success in the United States, it is reasonable to believe that the meaning behind the end of the pandemic will only further hurt marginalized communities with greater risks of contracting the virus. What happens if when “the pandemic end” means that the same community that has been hit the worst by COVID is now having to pay monopolistic vaccine prices?

The most highly watched race of all time is coming to a close: the race to find an efficacious COVID-19 vaccine. One would believe that the prized possession to biotech and pharmaceutical companies is the pride and compassion that coincides with saving the lives of millions of Americans, but companies have their eyes on a much larger prize: the sole patent rights to the COVID-19 vaccine. Every American has a stake in how far patents should be reached. Patents dictate who has access to scientific breakthroughs when they occur, and at what cost to the general public. As the pandemic has shown us, Black Americans are systemically disadvantaged in our health system and it is naïve to believe that the spread of COVID-19 will cease unless we address the issues of health inequity in our country head-on.

Yasmeen Rose is a 2021 MPH candidate in the Department of Health Policy and Management. She is passionate about patent law innovation policy and how it can mitigate health inequities in marginalized communities.