American-made coronavirus treatments were accelerated using the very type of involuntary patent sharing the drug industry has decried.Lee Fang
August 23 2022, 5:26 p.m.
Vials containing the Moderna Covid-19 booster at a vaccination center. Photo: Dinendra Haria / Sipa via AP Images
DURING THE HEIGHT of the coronavirus pandemic, when South Africa, India, and many lower-income countries requested a special waiver on the enforcement of patents that would allow them to manufacture cheap Covid-19 vaccines and therapeutic medicine, the U.S. pharmaceutical industry snarled.
American drug executives and lobbyists countered that the U.S. should not only vigorously oppose any patent sharing, but also move to sanction any country that dared to violate corporate patent rights.
“Patents are the reason that Covid-19 vaccines exist. Waiving them would undermine our response to this pandemic and future health emergencies,” wrote Michelle McMurray-Heath, a top biotech lobbyist and head of the Biotechnology Innovation Organization, or BIO, in an opinion column scorning the South Africa-led waiver request.
McMurray-Heath, in her column, referenced the success of Moderna Inc., in which “licensing technology, not abrogating patents” made vaccines possible.
That tough talk belies an unprecedented suspension of patent enforcement granted to select pharmaceutical and medical device companies — including Moderna.
We now know that drug companies like Moderna took advantage of emergency conditions to waive patent rights for components of Covid-19 mRNA vaccines. Despite the drug industry’s rhetoric around the sanctity of patent protections, newly disclosed government pandemic contracts and a contentious patent infringement lawsuit against Moderna showcase the extent to which American-made coronavirus treatments were accelerated using the very type of involuntary patent sharing the drug industry has decried.
Knowledge Ecology International, an advocacy group that campaigns for access to medicine, recently released the results of a Freedom of Information Act request showing that the Trump administration quietly invoked a World War I-era law to give companies racing to produce Covid-19 medications, vaccines, tests, and other pandemic-related products special authority to seize virtually any patent they wished without authorization.
KEI has identified 62 federal pandemic-related contracts — including with major companies such as Corning Inc., Eli Lilly and Co., Merck & Co. Inc., Qiagen, Sanofi, Moderna, and Siemens — with clauses that reference regulations associated with Section 1498, a statute that grants a compulsory license for the completion of the contract. A compulsory license allows the use of patented inventions without the permission of patent holders. In the case of the statute, such broad suspension of traditional patent rights are granted as long as the patented invention is used in service of a critical government function, typically in areas of national security or a national emergency.
The contracts flowed to companies that swiftly developed products needed to respond to the pandemic. Qiagen’s federal funding helped it produce the QIAstat-Dx line of PCR testing equipment to detect Covid-19 pathogens in human samples. The Corning contract identified by KEI supported the manufacturing of medical-grade vials and glass tubing used for coronavirus response efforts.More...