Lengthening Patent Terms by 10 Years is Exactly the Wrong Response to COVID-19  

Governments around the world are taking steps to make sure that private corporations don’t use the coronavirus pandemic as an excuse to make unjustified monopoly profits. They’re doing that by ensuring that governments can override patents and issue compulsory licenses for COVID-19 related treatments, vaccines, and tools. Canada’s recent COVID-19 bill authorizes the government to make and use patented inventions as needed in fighting the pandemic. Governments in Chile, Ecuador, Germany, and Israel have taken similar steps.

But in the U.S., lobbyists and lawyers for patent owners are pushing our government to move in the exact opposite direction. And they may succeed. Last week, Sen. Ben Sasse (R-NE) introduced a bill that gives 10 extra years of patent rights (on top of the usual 20 years) to any “new or existing pharmaceutical, medical device, or other process, machine, manufacture, or composition of matter.” The patent rights grab, included in a bill that’s ostensibly about limiting medical lawsuits, also applies to improvements on existing technology.

Sasse’s bill does prevent issued patents that relate to COVID-19 from taking effect until after the current national emergency declaration ends. But that reasonable limitation is coupled with an unnecessary and damaging giveaway of 10 extra years of patent exclusivity.

Patents that are based on technology that came from publicly funded research are a problem in the first place. Universities have sometimes patented federally-funded technology, and even sold those patents to patent trolls. When research is federally funded, it’s often not appropriate to patent the resulting technology at all—much less grant the patents a 50% term bonus, as Sasse’s bill would do.

And let’s be clear: the fruits of any research into COVID-19 in the U.S. will rest on an enormous bedrock of public funding. The third stimulus bill gave billions of dollars to research on COVID-19 therapies and vaccines, including nearly $1 billion in research money given to the National Institutes of Health, as well more than $75 million research funding to each of the National Science Foundation, the Food and Drug Administration, and the Department of Energy. Part of the $27 billion going to the Health and Human Services Department also goes research and development of vaccines and therapeutics. That’s all on top of the earlier $8.3 billion coronavirus bill, which authorized more than $3 billion for vaccine research. The public has the right to benefit from that use of public research money, not see it locked up by patents.

In this case, the correct price point for a coronavirus vaccine is already clear: it should be free. When Jonas Salk created a polio vaccine, he understood it had to be owned by “the people,” and not subject to patents of any kind. Salk worked with both private and public funding to research and develop his solution to the devastating polio problem. He wasn’t opposed to profit or capitalism, but Salk understood clearly that low-cost or no-cost access to the vaccine was vital to the success of his enterprise. 

We should be looking to limit, not expand, patent rights for technologies related to this health emergency. We’ve proposed a bolder use of 28 U.S.C. 1498, which would stop patent owners who believe they have infringed patents from suing and getting injunctions on companies or nonprofit researchers working on COVID-19. Instead, those patent owners would be limited to suing the government. Canada’s COVID-19 bill, allowing the government to step in on patent rights during the emergency, is another good example.

The government could compel companies and institutions that receive public funding to fight COVID-19 make the resulting IP widely available, using models like the Open COVID Pledge and Open COVID License. Those documents were created by a group of scientists and lawyers concerned that IP obstacles could get in the way of the fight against the disease.

Pro-Patent Lobbyists Can and Will Exploit This Crisis

Why is a huge patent giveaway even in this bill, which purports to be about limiting lawsuits against medical providers? More patents, with longer terms, will lead to more lawsuits against health care companies and workers. And these new patents won’t be limited to traditional medical technologies. Sasse’s bill applies to patents on any “process, machine, [or] manufacture” that are used to treat COVID-19. That will surely sprawl into exactly the type of software patents that have fuzzy boundaries and tend to benefit lawyers, not inventors.

An attempt to extend patent terms may be the first attempt by patent owners to profit from the COVID-19 pandemic, but it won’t be the last. IP lawyers and consultants have been busy writing op-ed after op-ed advocating for more patents on diagnostic medical tests, a benefit they tried but failed to get from the U.S. Senate earlier last year. These patent-system insiders stand to make big profits if they can change the law to patent diagnostic tests that are currently unpatentable, and for good reason—they often are simply measuring the basic biological facts of what’s present in a human body. And David Kappos, a former director of the U.S. Patent and Trademark Office who now works in private practice for big patent owners, has asked the current USPTO director, Andre Iancu, to change the status of some cases at the Patent Trial and Appeal Board (PTAB). Kappos wants to make two rulings that favored patent owners precedential, and binding on PTAB judges in the future. 

The idea that the COVID-19 crisis should lead to expanded IP rights is wrong to the point of being nonsensical, but it’s not surprising that U.S. patent owners and their lawyers are espousing this preposterous equation. If they don’t, the U.S. public may start seeing that many patent owners aren’t actually that interested in innovation at all—rather, they’re propping up a belief system that supports a massive system of legal rent-seeking. We already know some of the best ways to promote innovation: open access to information, and competition.  Patent owners are pushing for a rule that make no sense for the public good, but does make sense for their bottom line: that the best solution to the COVID-19 is more monopoly power for them.

If Sasse’s bill were to pass, it would invite a decade-long mess of profiteering patent lawsuits, following directly on the heels of a national emergency. Lawmakers shouldn’t heed this call for more powerful patents, or the ones that are sure to follow.