COVID-19 Shows What Innovation Looks Like Without Patents (Spoiler: It Works)

from the innovation-doesn't-need-patents dept

This post is one of a series of posts we're running this week in support of Patent Quality Week, exploring how better patent quality is key to stopping efforts that hinder innovation.

The COVID-19 pandemic has given rise to a fascinating natural experiment: What does innovation look like when patents are largely out of the picture? For Patent Quality Week, I’ll be looking at the development of COVID-19 vaccines and what lessons can be drawn for reforming the patent system.

The development of COVID-19 vaccines has largely progressed without any noticeable effect of patents. None of the vaccine developers have sued competitors for patent infringement, and Moderna has even pledged not to assert patents during the pandemic. To be sure, patents have not been out of the picture entirely: the developers are getting plenty of them, and analysts are predicting the lawsuits to start as early as the first booster shots. But even in this world just partially free of patent threats, a few things are worth noticing.

Start with the sheer number of COVID-19 vaccine products. The two mRNA vaccines from Pfizer/BioNTech and Moderna coexist with each other and vaccines from Johnson & Johnson, AstraZeneca, Novavax, and others. In any other situation, these companies would right now be in massive patent litigation, and many of the firms would likely have dropped their products or not even entered in the first place. Along with non-patent incentives such as government funding and social prestige, the absence of patent assertion has helped open the door to multiple similar vaccines being available on the market.

Similar, but not the same. Moderna’s vaccine can be stored at higher temperatures than Pfizer’s, J&J is a single dose, Novavax is based on more traditional vaccine technology. Each vaccine has distinct characteristics preferable for certain consumers and certain settings.

Multiple suppliers and product differentiation are hallmark features of many competitive markets. It’s simply good business sense for competitors to make slightly different products that serve different consumers, and vaccine manufacturers are no exception. As a result, economists find that “neck-and-neck” competition spurs innovation when multiple firms each try to outdo the others through incremental improvements and differences.

The presence of multiple, differentiated competitors has been a tremendous boon to the American COVID-19 response. Health care providers can opt for a vaccine technology that best fits their facilities, and some individuals have gotten to choose between mRNA or one-and-done. More importantly, competition means robust supply chains. Contamination of production batches and discoveries of serious side effects didn’t halt the flow of vaccines because other products were in place.

Patents could easily have upended vaccine deployment in the United States by constraining the market to a single supplier. For comparison, during the 2001 terrorist anthrax scare, the only approved drug for anthrax was Bayer’s patented product Cipro. Unlike the COVID-19 vaccine manufacturers, though, Bayer vigorously defended its patents and refused to allow competitors to make Cipro, which led to national panic and tense negotiations until the Bush administration pressured the company into major price and manufacturing concessions.

The word “monoculture” is sometimes used to describe how dependence on a product or company creates a potentially devastating single point of failure. Originally referring to agricultural wipeouts due to single-crop plantings, the term was popularized by computer security experts who credited a monoculture of Microsoft Windows with the catastrophic spread of computer worms. Others (including myself) have worried about monocultures of cell phone chips, encryption software, and global shipping canals.

The medicine for monocultures is competition to ensure that if one product fails, others will continue to meet the public’s needs. Multiple vaccine options and suppliers are plainly better than panic-buying the last boxes of Cipro on the shelf. Given the potential of patents to create monocultures, how can the patent laws be written to avoid them and foster valuable competition?

There are at least two answers. First, the patent system needs flexibility to deal with unexpected situations such as pandemics and national emergencies. A law called section 1498 already provides this flexibility by allowing the United States to authorize use of any patented technology, with compensation to the patent holder, and Chris Morten and I have argued that the government should be more proactive in asserting this authority. The need for flexibility also explains the importance of the United States’ support for international patent waivers. While the COVID-19 vaccine patent truce has resulted in sufficient supply for the United States, worldwide patents have helped to dissuade some foreign drug manufacturers from producing their own. An international waiver that overcomes patent barriers to competition could add more, diverse vaccines to the market. And in view of arguments that vaccine patents are irrelevant in view of manufacturing bottlenecks, it is worth asking whether new international entrants freed from patent restrictions might discover alternative ways of manufacturing vaccines, thereby pushing the bounds of innovation.

More important is to avoid granting patents that enable monocultures in the first place, and that’s where patent quality becomes important. Done right, patents should encourage product differentiation by restricting close copies of a technology while allowing alternate solutions to problems. Monocultures arise from patents on broad swathes of solutions or even on the problem itself—say, patenting the idea of vaccinating against COVID-19 versus a patent on the biochemical structure of a particular vaccine. Especially for computer software, broad problem-covering patents are far too common—patents on scanning to email, accounting for currency exchanges, and one-click online shopping, for example. At best, such patents fall into the hands of trolls who use them to harrass startups and other companies for money. At worst, they become tools that large, dominant firms can use to suppress competitors, setting the public up for the failures that monocultures can cause.

There are many options for enhancing patent quality and avoiding the dangers of monoculture: rigorously applying law that prohibits patents on computer algorithms and laws of nature, giving patent examiners sufficient time to review patent applications, and enhancing lower-cost ways for competitors to challenge patents issued wrongly. Many lawmakers have been receptive to these ideas, with the White House’s recent executive order and hearings in Congress both looking into how to keep patents from deterring competition. But some have pushed in the opposite direction of more patents regardless of quality. There have been recent efforts to change the law to allow for more patents on software and natural discoveries, patent examiners are overworked, and the Patent Office has made it increasingly hard to challenge questionable patents.

These seemingly backward steps are taken out of fear, a hypothetical worry pushed by patent-holding industries that a more rigorous patent system will destroy incentives to innovate. Perhaps the most important story to be learned from the COVID-19 vaccines is that this worry is unfounded. Multiple competing innovators not bogged down with patent lawsuits can function better, innovate more, and robustly serve public needs better than an industry of patent-backed monocultures. Bold steps toward patent quality should be cause for celebration, with an eye toward a competitive technological future.

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Filed Under: competition, covid-19, patents, vaccines


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  • identicon
    Anonymous Coward, 22 Jul 2021 @ 1:49pm

    The fact that there is no patent war on covid vaccines is am obvious confirmation that there is a 5G microchip in there - and the evilmegapharma do not want us to know. (Guess I should put a /s in here?)

    reply to this | link to this | view in chronology ]

  • identicon
    christenson, 22 Jul 2021 @ 2:23pm

    Do not confuse quantity of patents with quantity of innovation

    Dear Techdirt:
    Please ensure any legislator or executive who misses this point gets threatened, at least in jest, with a lawsuit for infringing the worst, most obvious patent they have any clue about.

    This will help prevent them from confusing quantity of patents with quantity of innovation!

    reply to this | link to this | view in chronology ]

  • identicon
    Capt ICE Enforcer, 22 Jul 2021 @ 2:25pm

    Say what?

    Why man, why would you do that to me. If you are going to give spoilers. The warning should be.Spoiler ahead. Press this link to skip the spoilers. Not Spoiler: It works. Who does that, I been waiting for a long time for the movie to come out. And poof. Now ruined.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jul 2021 @ 4:41pm

    bad example

    Pfizer and the U.S. Covid19 vaccine companies ain't a good example of Patent-free private innovation.

    The Federal Government ran the show and funded it upfront with many billions of Dollars.
    Pfizer was essentially a Federal contractor, not some brilliant independent pharmaceutical developer, risking ruin without patent protection -- the Feds guaranteed the whole endeavor.

    Pfizer also exploited many other billions in various government research programs over past two decades.
    The government largely eliminated market risks through advance purchase commitments for the vaccines, worth billions.
    And Pfizer was granted legal immunity from liability for any adverse effects experienced by the vaccine recipients.

    The purpose of patents is to spur innovation by granting developers protection from competition and thus greatly boosting financial gain incentives.

    Pfizer didn't need any patent protection because the Feds were dumping truckloads of money on them from the start.
    Pfizer could not lose in this government program!

    reply to this | link to this | view in chronology ]

    • identicon
      Pixelation, 22 Jul 2021 @ 6:00pm

      Re: bad example

      "Pfizer could not lose in this government program!"

      And I am thankful about that. The number of lives saved by the Pfizer vaccine far outweighs the money.

      But let me guess, you still hate those damn Socialists in charge of our government?

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 23 Jul 2021 @ 12:24am

      Re: bad example

      "The purpose of patents is to spur innovation by granting developers protection from competition and thus greatly boosting financial gain incentives."

      The jury's still out on whether that has bearing on most types of patents but has been greatly debunked when it comes to medical ones, where tax money is already the bulk of the research expenditure in many cases. The biggest "production" cost of pharmaceuticals is for most drugs the marketing campaign.

      "Pfizer didn't need any patent protection because the Feds were dumping truckloads of money on them from the start."

      ...and doing the marketing, distribution, etc. All Pfizer had to do was supply lab and researcher time, amply remunerated.

      "Pfizer and the U.S. Covid19 vaccine companies ain't a good example of Patent-free private innovation."

      It is, actually. research grants currently make up, in the US, 44% or more of drug development costs (down from 60-70% in times past). Bringing tax money back in the game for developing pharmaceuticals would buy a lot of affordable medication for the citizenry as a whole, if restrictions were placed on avaricious patent trolling.

      reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 22 Jul 2021 @ 4:47pm

    Which is we have a dark money group created by Karl Rove and run by Bitch McTurtle's former staffer running xenophobic ads pleading for letting people die to protect the idea of patent-based profiteering.

    reply to this | link to this | view in chronology ]

  • icon
    Boba Fat (profile), 22 Jul 2021 @ 8:38pm

    Innovation?

    Patents have very little to do with innovation. They're just poker chips for legal negotiations. Company A has 1000 patents, company B has only 500, company B pays more to cross-license. If Company C has only 20 patents, they'd better be good ones, and Company C had better not make enemies of A or B.

    At every company where I've worked in the last 35 years, the legal team has stressed that we engineers should never, ever, look at a patent. Because if we accidentally do something that is covered by some patent and we "could have known" about it, we're risking triple damages.

    I hold about a dozen patents, but there are only a couple that I consider to be really neat ideas. I've created and implemented many more really neat things that were never patented, because the lawyers didn't think it was worth pursuing or the company didn't want to spend the money to file.

    Build the thing, solve the problems, get it to market, repeat. You make money selling things, not from patents. One of the signs that a company is headed downhill is when they start suing instead of competing.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 23 Jul 2021 @ 12:31am

      Re: Innovation?

      "Build the thing, solve the problems, get it to market, repeat. You make money selling things, not from patents."

      Well, patents do enable you to run competition off the rails. Google had to purchase a portfolio of 5 billion USD's worth just to feel safe in launching their first Nexus phone. Because the patent game as it's played today consists of one corporation suing another over 20,000 various patents ranging from the obsolete to the utterly ridiculous and the other corporation threatening with a countersuit of 20,000 equally fraudulent patents. And them both then settling for a token handover of a few million back and forth.

      If anything patents mean the individual inventor and small businessman with an idea won't ever get it to market without 50 million dollars in a war chest to fend off patent trolls.

      We'd be better off without them. What really matters on the market is the Brand. As Évian keeps proving by selling tap water at 2,50 USD a bottle.

      reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 23 Jul 2021 @ 1:10am

    The Oxford vaccine was going to be open source and freely available for developing nations to produce before Bill Gates stepped in and blocked it because he believes that for profit is the only way to do anything... Even if it means hijacking public bodies and public research to do so.

    reply to this | link to this | view in chronology ]

    • icon
      Samuel Abram (profile), 23 Jul 2021 @ 6:12am

      Re:

      Microsoft has proven that it is way better off without Bill Gates at the helm.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 23 Jul 2021 @ 3:13pm

        Re: Re:

        Microsoft has learned many lessons about working with others that were not happening during Gates' era. It's great that he's been pushing philanthropy in his "retirement", but we can point to a lot of "corpses" along the way when he wasn't of that mindset.

        Time will tell what MS actually do long term but I do believe that everyone has been better off once they shed that 80s/90s midset,

        reply to this | link to this | view in chronology ]

        • icon
          Bloof (profile), 25 Jul 2021 @ 4:56am

          Re: Re: Re:

          Unfortunately his attitude to software is carried over to his philanthropy, with programs like for profit education, mass circumcision and forcing poor farmers to use the products of american agribusinesses in the third world doing more harm than good.

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 Jul 2021 @ 5:31am

    the elephant

    1. The holes in the mask are visible to the naked eye, and the mask is not sealed to my face, yet the mask is supposed to effectively block the microscopic virus?

    2. If the vaccine is effective, then those who are fully vaccinated are not supposed to contract Coronavirus, but they are. Now we're being told that the vaccine only prevents serious symptoms, or symptom duration, when you contract COVID...after being fully vaccinated...which was supposed to prevent you from being infected to begin with. The goalpost have been moved.

    3. If the vaccine is effective, just get vaccinated. Don't worry about, pressure, or shame the un-vaccinated because you are already protected from the virus that the unvaccinated may, or may not, be transmitting.

    4. What is being done by big pharma on the preventive end concerning Coronavirus? Where are the immune-boasting medications?

    5. Since we don't completely know the viability of the virus, who's to say that it's latest variant is not also being brought over on surfaces or animals from it's origin?

    6. Are the people that are visibly crossing the US boarders from Cuba, Mexico, and South America being tested for Corona? If so, are they being detained/quarantined/treated if they test positive?

    Scientists keep studing

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 23 Jul 2021 @ 3:05pm

      Re: the elephant

      "The holes in the mask are visible to the naked eye, and the mask is not sealed to my face, yet the mask is supposed to effectively block the microscopic virus?"

      What mask are you wearing? Did you accidentally get your stockings out? NTTAWTT, but seriously...

      Anyway, the point of masks with the current pandemic is to protect against water droplets containing the virus, which are naturally larger than the virus itself.

      "If the vaccine is effective, then those who are fully vaccinated are not supposed to contract Coronavirus"

      Vaccinated people can still be contagious, and asymptomatic people are still a thing, as we've known since Typhoid Mary. Also, no vaccine is 100% effective which is why herd immunity is important to protect the people who have genuine reasons to not be vaccinated, as we did with smallpox, polio, etc.

      "What is being done by big pharma on the preventive end concerning Coronavirus? Where are the immune-boasting medications?"

      Nice goalpost move, but I guess it's better than the usual cycle of lab conspiracies and attacks on Asian people who didn't have anything to do with it. Let's just say that as long as the US healthcare system is run by private insurance and "big pharma", they will do what's best for profit.

      "Since we don't completely know the viability of the virus, who's to say that it's latest variant is not also being brought over on surfaces or animals from it's origin?"

      We know more than we did 12 months ago, and there's no point introducing new paranoia. Science will go where there's evidence, and so far the evidence is sound up until at least the Delta variant.

      "Are the people that are visibly crossing the US boarders from Cuba, Mexico, and South America being tested for Corona?"

      Strange how you'd not only single those countries out in particular, but also miss out central America and the rest of the Caribbean. Almost as if you were calling for a dog somehwere..

      "If so, are they being detained/quarantined/treated if they test positive?"

      A simple Google search would tell you the current US border policy...

      "Scientists keep studing"

      Yes, they do. Sometime their advice is followed, resulting in effective pandemic prevention as happened during the Bush and Obama administrations. Sometimes, the guy after fires everyone involved and spends half of the global pandemic directly attacking the scientists. It's truly a mystery why there are problem...

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Jul 2021 @ 4:49pm

        Re: Re: the elephant

        Water vapor/moisture can indeed still get past the unsealed paper and cloth masks that most are using tho.
        No one is refuting the fact that we were originally told to get vaccinated in order to be protected from contracting Corona. We should have been told the whole story: the vaccine will only cover certain variants of the virus - not every variant - and that boaster shots will most likely be necessary; like we already experience yearly with the flu shot.
        Barring a miracle, Corona is just a new disease that we can add to the ever growing list of things trying to kill us; like HIV, tuberculosis, cancer, stray bullets, tornadoes, etc. We can do things to reduce our individual risks, but one thing we’ll never be able to do, is Force People To Do Anything…EVER.
        We need wisdom, and courtesy, not paranoia.

        reply to this | link to this | view in chronology ]

        • identicon
          Rocky, 23 Jul 2021 @ 6:49pm

          Re: Re: Re: the elephant

          Water vapor/moisture can indeed still get past the unsealed paper and cloth masks that most are using tho.

          Yes, because no mask is 100% effective - it just helps lessen the chance of spreading a disease.

          No one is refuting the fact that we were originally told to get vaccinated in order to be protected from contracting Corona. We should have been told the whole story: the vaccine will only cover certain variants of the virus - not every variant - and that boaster shots will most likely be necessary; like we already experience yearly with the flu shot.

          At no point have anyone said that a vaccine is 100% effective. The whole story was told, but people didn't listen and just assumed a bunch of idiotic stuff.

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 24 Jul 2021 @ 11:04am

            Re: Re: Re: Re: the elephant

            "Yes, because no mask is 100% effective - it just helps lessen the chance of spreading a disease."

            Bingo. Nobody who understands the situation thinks that these are immorality shields, it's just that sensible use of vaccines, masks and social distancing makes it so that further extreme measures are not necessary due to uncontrollable spread.

            "At no point have anyone said that a vaccine is 100% effective"

            If they have, they're both depressingly uninformed and the sort of person who's likely to help create conditions that lead to further variants that are immune to them.

            reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 26 Jul 2021 @ 1:29am

          Re: Re: Re: the elephant

          "Corona is just a new disease that we can add to the ever growing list of things trying to kill us; like HIV, tuberculosis, cancer, stray bullets, tornadoes, etc."

          The best comparison would be to the common flu, which also started with a massive death toll. Today when everyone has experienced a few dozen variants of it growing up most people have a base resistance towards most things new strains of it come up with. What used to be a true reaper of lives is today a serious threat mainly to those already impaired or weakened.

          Covid-19 vaccinations are important not just because they prevent the current strains. But also because they will be mitigating the impact of the next few strains.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 26 Jul 2021 @ 1:34am

          Re: Re: Re: the elephant

          "Water vapor/moisture can indeed still get past the unsealed paper and cloth masks that most are using tho."

          Well, yeah. The mask is a baffle, not a barrier. What it does is that it prevents your exhaled air and most gross particles to travel as far from you, making you less infectious at a far smaller range.

          What really bugs me is that this is simple enough that even the 30% aren't dumb enough not to realize it. They know it damn well but most ignore it out of outright malice and contrarian spite.

          reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 26 Jul 2021 @ 6:15am

          Re: Re: Re: the elephant

          "Corona is just a new disease "

          I'd be careful with your terminology there. COVID-19 is the new disease. Which is a novel corona virus that was discovered in 2019. But, corona viruses are quite common and we have vaccines and treatments for them, which is why a vaccine for this particular one was developed so quickly - we were already producing treatments and vaccines for other corona viruses such as the flu, including those types commonly referred to as "swine flu" or "bird flu".

          Unless we get it virtually eradicated through vaccines and other methods like we did with smallpox and polio, COVID-19 and its descendants are going to be around with a long time. The trick is to get it controlled until we are in a position to deal with in in the way that we can with those other diseases, which anti-vaxxers, anti-maskers and other incredulous fools are making take longer than it should.

          reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 24 Jul 2021 @ 12:14am

      Re: the elephant

      ... said nobody with any level of understanding about the subject.

      reply to this | link to this | view in chronology ]

  • identicon
    Paul, 23 Jul 2021 @ 8:28am

    There's no "without patents" here

    This argument makes little sense in this care because none of the manufacturers have actually formally ceded any patents. Neither have patent protections been taken from them. The current situation takes place wholly within the patent system we know. The fact that manufacurers have for the moment pledged not to exploit their patents too much, while still holding them, might just as well be used to argue that the patent system works, is flexible in an emergency and has done no harm in the pandemic. It sure as hell is not an example for innovation without patents.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 23 Jul 2021 @ 3:11pm

      Re: There's no "without patents" here

      It's a case where innovation happened without patents. It's not a great example to say that no innovation needs patents, but rather that patents are not the only incentive, despite the arguments put forth by many,

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jul 2021 @ 6:38pm

      Re:

      might just as well be used to argue that the patent system works, is flexible in an emergency and has done no harm in the pandemic

      This would have been a fair statement to make had various vested interests in the field of IP protection made a lot of fuss when it was suggested that IP enforcement be temporarily held back to help less developed countries with vaccine access.

      It's not that the patent system is flexible in an emergency. It's that it had to be forced out of those who worship IP as a religion, with the effort one would need for a root canal and wisdom tooth extraction, as those grafted to the IP nipple kicked and screamed and threw their usual tantrums.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 26 Jul 2021 @ 2:00am

        Re: Re:

        "It's that it had to be forced out of those who worship IP as a religion, with the effort one would need for a root canal and wisdom tooth extraction..."

        Much like when the WTO allowed for the mechanism of compulsive licensing visavi AIDS medication and vaccines for India and much of Africa where the threat was real that the absence of generic equivalents would have literally ended the country within generations.

        And yeah, the pharma lobby was screaming to the high skies about highway robbery when they found that a dose of vaccine manufactured at the cost of 1 USD couldn't be sold at 30 USD per hit to India, for instance, with local manufacturers able to manufacture and sell at cost to cover the vaccination of the population.

        Medical patents are an especially egregious example of pure malice and harmful avarice.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jul 2021 @ 12:59am

    Patents are redundant via natural complexity here

    Really COVID-19 vaccine research, development and production are a weird scenario where the abilities are so rare (RNA immunology), specoalized, and tools so expensive you don't just have a moat but an ocean surrounding you better than any patent system could provide. If you were a third of the way there in capabilities they would gladly contract you to fulfill orders.

    It is a strange sort of ideal in a situation of such rarity and value as the most innovative starts out naturally protected and its value would decline as it becomes old hat.

    reply to this | link to this | view in chronology ]


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