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« Oral Argument in Minerva Surgical Inc. v. Hologic, Inc. | Main | Top Drugs Losing Patent Exclusivity in 2021 »

April 26, 2021


This combined with some (finally) solid feedback from Ron Katznelson (see https://www.ipwatchdog.com/2021/04/19/waiving-ip-rights-during-times-of-covid-a-false-good-idea/id=132399/ ), does set up nicely, as I have a (no rare) slate of traveling coming up and can do some reading and contemplation.

(summaries of those subscription required links would be appreciated - if possible)

Thank you.

I think that the above argument is perfectly defensible, but it can be turned inside out like a sock. The argument contends that suspending patent rights relevant to COVID19 is a bad idea, because it will not actually resolve any of the bottle-necks that frustrate vaccine manufacturing. I agree with the premise, but the conclusion does not necessarily follow from the premise.

Precisely because patents are not the rate limiting step for these vaccines, suspending the patent rights will not actually cause the patent-holders to lose any appreciable amount of market exclusivity. Our industry really is already doing all it can to help, but playing along with the Indian/South African request makes our industry also *look* like it is doing all it can to help (the appearance being almost as important---albeit for different reasons---in this instance as the reality). Meanwhile, none of the market players actually give up anything of any real cost by playing along with the Indian/South African request.

With that in mind, the argument in the original post above comes down to "the call by these governments... should be understood for... an attempt to use the pandemic to achieve a goal of status quo ante (prior to the establishment of the GATT/TRIPS/WTO global trade and patent regime)... ." True, I agree with this conclusion. However, the New York Times (URL below) wrote several years ago about a community of Syrian Jews in Brooklyn who refuse to admit converts to their community. They have only ever made one exception to this rule, and that was when the chief Sephardic rabbi of Israel signed the convert's papers. The Brooklyn community "reasoned that accepting this case as precedent would actually have a deterrent effect: how many other converts could expect the chief rabbi of Israel to go to bat for them?"

Mutatis mutandis, the same reasoning applies here. Right now, there has never been a TRIPS waiver granted. By taking COVID19 as the cause that triggers the exceptional suspension clause, we set a rigorous precedent as to what sort of conditions justify the invocation of this exceptional clause. We would do well to set the bar at this height while the opportunity presents itself, particularly because to do so comes at no real cost.


Greg: I think it more likely that once the horse is out of the barn (or the genie is out of the bottle) it will never be possible to achieve status quo ante. And to the extent that patentees go along for purportedly cosmetic reasons, their acquiescence will be used as an admission to bootstrap this application of the waiver to all therapeutic patents.

I don't know which one of us is correct, but I don't want to find out.

Thanks for the comment.

With any viral pandemic emergency, mandate distribution of vaccines by a vaccine producing company on moral grounds with the proviso that the vaccine company is immediately and fully compensated by the recipient country or the World Health Organization to pay to protect vaccine company's costs to make and deliver the vaccine anywhere. Someone has to pay the costs. The quid pro quo solution is an obvious and kind application of the Golden Rule to the world's populations at risk during a pandemic. I believe countries should protect other countries but there must be compensation in some economic form of benefit.

Dr. Noonan,

I think that the bootstrapping danger is not so much bootstrapping to other patents, but per your article, the bootstrapping to ALL forms of intellectual property, including especially trade secrets which by their nature are effectively destroyed with waiver.

I have been of the position that waiver of PATENTS may well be an item considered to be within the fact that governments (Sovereigns) HAVE INCLUDED waiver provisions (and to view ANY 'horse out of the barn' as a de facto reason against waiver would make waiver clauses a nullity - and one would have to wonder why present at all).

Mr. Dresdner,

I do NOT think that the issue for discussion is merely remuneration to a rights holder for THEIR production of product (a positive item) per their ability to foreclose others from making (a negative item - per the nature of patent rights).

Rather, it is a providing TO OTHERS of the full ability to make (in and of themselves) the item.

It is this FURTHER aspect that catches my eye in the immediate article, as Dr. Noonan points out that in order to meet THIS (elevated) point, there may well need be MORE THAN mere patent rights (negative rights) implicated.

“[M]andate distribution of vaccines by a vaccine producing company on moral grounds with the proviso that the vaccine company is immediately and fully compensated by the recipient country or the World Health Organization to pay to protect vaccine company's costs…”

I can agree in theory that compulsory licensing is better than uncompensated suspension of IP rights, but in this context the distinction is purely academic. As Dr. Noonan explains above, IP rights are not the obstacle to more vaccine. The machines are the rate-limit, and one cannot conjure more of these machines into existence with TRIPS waiver or compulsory license regimes.

And one other issue not unrelated to IP rights: who is responsible (who pays, essentially) when a vaccine from one of these compulsory licensees of whatever rights fails (does not immunize) or causes injury or death?
It's one thing to hold Moderna, just to pick a name, liable for injury caused by their vaccine; and indeed they would be in the US, either through the Vaccine Injury Compensation Program or just plain old tort liability. But it's hardly reasonable to hold them liable for injury caused by vaccine made by BathTub ChemWorks and Vaccines in a different country, especially if Moderna's IP has been compulsorily transferred to BathTub.

The latest issue of the influential "Economist" magazine has a full page discussion of this issue.

Thank you Mr. Morgan,


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