Patent Wars

For me, patents are like my first car, a second hand ’94 Opel Monza. It worked technically. But it could have been much much better.

IP talk is everywhere. If you’re a biotech company, you’re most probably spending as much time with your Patent attorney as with your Chief Scientist.

Patent debates are not new (ironically). There has always been conversation around wether patents support or stifle innovation, and how the current system can be improved.

I’ve been thinking about IP for other reasons relating to two major patent-related biotech news.

The COVID Vaccine battle between Moderna and NIH

Moderna and the National Institutes of Health (NIH) have been locked in a patent battle over the development of the COVID vaccine. NIH argues that Moderna left out NIH researchers in the patent application, thus making it so that NIH can’t capitalise on the sale of the vaccine. Moderna in-turn argues that despite having collaborated with NIH researchers quite successfully, there were certain key protocols that NIH did not develop as part of the collaboration, which were critical in developing the COVID vaccine. This warranted them being left out of the patent.

Disputes over who deserves to be credited on a patent are common, particularly in collaborations between institutions.

Rebecca Eisenberg, Patent Law Expert

This patent battle is interesting to think about when compared to the story of the polio vaccine.

When Virologist Jonas Salk invented the polio vaccine to deal with the devastation the polio virus was wreaking, he didn’t patent it. His response to the question of who owned the patent was:

” The people I would say. There is no patent. Could you patent the sun?”

Jonas Salk, Polio Vaccine Inventor

Patent wars in a pandemic – Jonas Salk is turning in his grave. It’s interesting to reflect on wether certain patent protections should not be applicable during global crises by default because the costs and toll of not innovating is way too high.

Is the argument of ‘rewarding innovation through competitive edge’ applicable in a scenario where a microbe can bring the whole world to a stand still? Or is it fair to say that global crises will always occur and that patents actually enable a faster route to a solution in dire times?

The CRISPR Battle between UC Berkley and The Broad Institute

The discovery of CRISPR earned Charpentier and Doudna a Nobel prize, even though there has been contention on who the original inventor is. There has been an on-going patent battle between the Broad Institute (which motivates for Feng Zhang as the inventor) and UC Berkley (which motivated for Doudna and Charpentier as the inventors).

The contention stems around the fact that both these organisations have been working on this technology but UC Berkley filed their patent first. However, months later The Broad Institute submitted their patent application but fast tracked it, resulting in them successfully being awarded the patent first.

The repercussions for UC Berkley are that they had licensed out the use of this technology to other companies and start-ups. It has made the licensees rights void, meaning that they might have to re-license it from Broad to continue doing their work.

It almost feels like the patent system is gamified, and that you can probably ‘hack’ it by pulling certain levers. However, bureaucratic antics are the least of my concerns.

I do think there is an argument for rewarding innovation through patents – but is this still applicable if there exists a single organisation that has a monopoly on an innovation that can control and manipulate the genetic future of every species on the planet, even humans? Does the discovery of this potent technology warrant some stricter regulation around ownership rights and the ability to license it to different parties?

My other question is a more philosophical one – can any one individual or team in the sciences really claim inventorship rights when it can take even a 100 years to arrive at a solution and many hands were critical in shaping it over the decades?

Scientist and Science writer Matt Ridley makes interesting points in his blog that touches on this issue:

  1. Innovation has a history of being created in parallel, in different circumstances

…we know of six different inventors of the thermometer, three of the hypodermic needle, four of vaccination, five of the electric telegraph, four of photography, five of the steamboat, six of the electric railroad. The history of inventions, writes the historian Alfred Kroeber, is “one endless chain of parallel instances.”…Simultaneous discovery and invention mean that both patents and Nobel Prizes are fundamentally unfair things.

Matt Ridley

2. The rivalry created by patents actually stifles innovation

Patents and copyright laws grant too much credit and reward to individuals and imply that technology evolves by jerks. Recall that the original rationale for granting patents was not to reward inventors with monopoly profits but to encourage them to share their inventions. A certain amount of intellectual property law is plainly necessary to achieve this. But it has gone too far. Most patents are now as much about defending monopoly and deterring rivals as about sharing ideas. And that discourages innovation.

Matt Ridley

Thinking about patents has left me with more questions than answers. Patents can be useful, but if they are working against a culture of innovation (by making us think that the point of invention is only ever for monetisation and monopoly), enabling patents sharks, increasing prices of hikes of important drugs and other issues, maybe it’s time to re-think our whole IP strategy.