Can a government own IP? And could that solve COVID?
November 15, 2020 10:09 AM Subscribe
Has there ever been a case where a government has purchased a patent from its holder, in order to then make that patent freely usable by its citizens or the world?
A friend of mine was wondering about this as a possible solution to the problem of quickly manufacturing large quantities of a COVID vaccine, once one is sufficiently vetted. If only one company has the right to manufacture it, they couldn't possibly make as much as quickly as if, let's say, every decent-sized city in the world was manufacturing its own. This also seems to address to some degree the issue of the vaccine possibly needing to stay at very low temperature, as it would not have to be transported as far if it was being manufactured in a distributed way.
A friend of mine was wondering about this as a possible solution to the problem of quickly manufacturing large quantities of a COVID vaccine, once one is sufficiently vetted. If only one company has the right to manufacture it, they couldn't possibly make as much as quickly as if, let's say, every decent-sized city in the world was manufacturing its own. This also seems to address to some degree the issue of the vaccine possibly needing to stay at very low temperature, as it would not have to be transported as far if it was being manufactured in a distributed way.
Best answer: In addition to government rights in federally-funded inventions that Joey B. talks about (such as the "march-in rights" under 35 USC 203), the federal government can use inventions covered by patents wholly owned by others, with the patent owner eligible for compensation under 28 USC 1498. There's a short legal article about that here in the context of the pandemic.
posted by exogenous at 11:04 AM on November 15, 2020
posted by exogenous at 11:04 AM on November 15, 2020
If only one company has the right to manufacture it, they couldn't possibly make as much as quickly as if, let's say, every decent-sized city in the world was manufacturing its own.
The very simple solution to this is that the US government invokes the Defense Production Act and creates a network of manufacturers and distributors.
posted by NotMyselfRightNow at 1:00 PM on November 15, 2020 [3 favorites]
The very simple solution to this is that the US government invokes the Defense Production Act and creates a network of manufacturers and distributors.
posted by NotMyselfRightNow at 1:00 PM on November 15, 2020 [3 favorites]
Best answer: Not a government per se, but the patents for insulin were sold to the University of Toronto for $1 in 1923.
posted by mandolin conspiracy at 1:26 PM on November 15, 2020 [1 favorite]
posted by mandolin conspiracy at 1:26 PM on November 15, 2020 [1 favorite]
Not specific to vaccines but you might be interested in reading about Sovereign Patent Fund which talk about one way in which governments can own patents and use them for defensive or investment puposes.
posted by jacquilynne at 3:14 PM on November 15, 2020 [1 favorite]
posted by jacquilynne at 3:14 PM on November 15, 2020 [1 favorite]
Best answer: Has there ever been a case where a government has purchased a patent from its holder, in order to then make that patent freely usable by its citizens or the world?
Not so much purchased, but just about all governments except the USA have a facility to compel patent-holders to license the IP for public health reasons, since the 1970 Paris Convention for the Protection of Industrial Property. This inevitably brings the displeasure of the USA. South Africa was to compulsorily license AZT at the peak of the AIDS crisis until a certain Mr Gore stepped in.
I gather India is big on using compulsory licenses.
This article says that under current agreements the patent needs to be three or four years old, so maybe not so easy for a covid-19 vaccine.
posted by pompomtom at 2:10 AM on November 16, 2020 [2 favorites]
Not so much purchased, but just about all governments except the USA have a facility to compel patent-holders to license the IP for public health reasons, since the 1970 Paris Convention for the Protection of Industrial Property. This inevitably brings the displeasure of the USA. South Africa was to compulsorily license AZT at the peak of the AIDS crisis until a certain Mr Gore stepped in.
I gather India is big on using compulsory licenses.
This article says that under current agreements the patent needs to be three or four years old, so maybe not so easy for a covid-19 vaccine.
posted by pompomtom at 2:10 AM on November 16, 2020 [2 favorites]
Better explainer of compulsory licensing than me.
posted by pompomtom at 2:21 AM on November 16, 2020
posted by pompomtom at 2:21 AM on November 16, 2020
I'm stretching the definition of "purchase" and "own", but governments are always capable of simply copying and manufacturing the drug without following patent law, if that patent even exists in their country. Even if the patent exists in their country they may just choose to ignore it, claim some kind of emergency override, or demand reduced licensing fees. They may face future repercussions from the WTO or from the drug maker, but those tradeoffs may be perfectly acceptable for the current emergency.
Countries with large enough population/market power have significant negotiating power.
posted by meowzilla at 2:42 PM on November 16, 2020 [1 favorite]
Countries with large enough population/market power have significant negotiating power.
posted by meowzilla at 2:42 PM on November 16, 2020 [1 favorite]
claim some kind of emergency override, or demand reduced licensing fees. They may face future repercussions from the WTO
As mentioned above, this is specifically allowed by the WTO. Realpolitik is the problem.
posted by pompomtom at 1:47 AM on November 17, 2020
As mentioned above, this is specifically allowed by the WTO. Realpolitik is the problem.
posted by pompomtom at 1:47 AM on November 17, 2020
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For inventions in the medical field specifically, the most common route to the government getting rights in an invention is via the investigators using NIH funding during their (oh, hypothetically) discovery of a vaccine. If they do use NIH funding, they must comply with the Bayh-Dole act with respect to any arising patents, which specifically includes giving the government the right to use the invention. More details here:
https://grants.nih.gov/policy/intell-property.htm
And the thing is, almost every drug / vaccine / medical device - at least those arising in the US - uses NIH funding at some point. If it's developed at a university, you can bet your ass they pursued NIH grants. Small commercial startups do, too, and these days it is much more common for big pharma to develop new drugs, etc., by acquiring startups than by doing in-house discovery.
So, yeah, the government probably already has a license to the relevant IP that would be needed here. Maybe not as to the Pfizer / BioNTech candidate, since apparently that one was funded out of Germany, but probably all the other ones currently in US trials.
I'm not an expert in Bayh-Dole, so I'll let someone in the field speak to what would make the government step in here and how exactly it would work. But yeah, the framework is already in place. As a practical matter, almost all of the world's existing vaccine manufacturing capacity will be used to produce these vaccines, and a great deal more will be brought online.
posted by Joey Buttafoucault at 10:50 AM on November 15, 2020 [2 favorites]