Vial and syringe.

4 Things to Know About Intellectual Property, Patent Pledges, and COVID-19 Vaccines

By Chloe Reichel

High-profile commentators have argued recently that vaccine scarcity needn’t exist. If vaccine manufacturers simply shared their patents with other pharmaceutical companies, supply would quickly ramp up. 

Others have pointed out that numerous bottlenecks exist in the manufacturing process, from the glass vials that hold the vaccine, to the lipids that encase the vaccine’s active ingredient, mRNA.

And even if these bottlenecks didn’t exist, the intellectual property argument may be a straw man.    

In fact, this past October, Moderna made a gesture toward opening access to its intellectual property, by pledging that it would not enforce its patents against “those making vaccines intended to combat the pandemic.” That month, Jorge L. Contreras, a Presidential Scholar and Professor of Law at the University of Utah, covered the patent pledge and its potential implications for Bill of Health.

We checked in with Contreras to ask about the implications of Moderna’s patent pledge now that its vaccine has been proven safe and effective. Here are the highlights from the conversation:

The vaccine shortage might have less to do with intellectual property, and more to do with financial incentives. 

“No one is going to ramp up to do production if there’s not a ready, willing customer. And the customer is the U.S. government, and other governments, to some degree. But if they’re really just dealing with Moderna, Pfizer, the proven candidates, then the others may not ever have the incentive to ramp up or to try to do this, which is obviously going to be expensive.

Whatever’s going on behind the scenes, there’s definitely a discussion of capacity and a discussion with Moderna and Pfizer of, we’re doing this already, it’ll be much more safe and economical simply to stick with us, and we’re continuing to ramp up. I suspect those kinds of conversations are going on, and they make it tough to enter into that market.

I think a ton of this is driven by procurement considerations these days, as opposed to either just technical ability, or even availability of some alternate manufacturing capacity.”

On the technical side, sharing a patent alone isn’t enough to facilitate entry of other vaccine manufacturers into the market. 

“It’s much easier to share a patent than the know-how, right? 

With a patent, it’s black and white: These are the things you can do. With the know-how, it’s like, maybe I’ll tell you something, but not necessarily everything that you need to know. I’m not going to give you the exact secret sauce recipe, I’m just telling you, oh, it’s got some ketchup and some Thousand Island dressing, and you can figure out the rest on your own. It’s very discretionary.”

It’s hard to know if other pharma companies are taking advantage of the patent pledge.

“What might the pledge be doing? You don’t actually have to do anything to take advantage of the pledge, right? So these pledges are really hard to track for that reason.”

Contreras added that he is looking now at ways to better understand how patent pledges are being utilized.

But that doesn’t mean the pledge is an empty gesture. 

“Some people think that making the patents available is an empty gesture, at least in the short term, because without the manufacturing know-how, no one is going to be able to catch up. And that might be true.

But I think it’s still worth doing. The patents are pretty broad, and so, there may be others using them.

Even Pfizer and others are probably using some IP of Moderna’s in producing these vaccines. So at least there’s one obstacle that’s been lifted in the market.”

Chloe Reichel

Chloe Reichel

Chloe Reichel is the Petrie-Flom Center’s Communications Associate. She serves as Editor-in-Chief of the Bill of Health blog and supports the Center's broader communications efforts.

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