Guest Opinion: Gutting patent protections won’t cure COVID-19

Published 7:30 pm Friday, September 18, 2020

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By Adam Mossoff

To ensure that coronavirus vaccines and treatments are “available at a price affordable to all people,” Congresswoman Jan Schakowsky and several other House Democrats recently proposed a radical solution to the coronavirus pandemic – commandeer any lifesaving, yet-to-be-created vaccine and allow the government to set “reasonable” prices.

Although this may sound like it would benefit people, it would be a disaster for patients. Intellectual property protections aren’t a barrier to care. Just the opposite. They’re responsible for the most revolutionary medical innovations in human history. And they’re our best hope of ending this pandemic.

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Patents enable companies to sell their drugs and licenses to other companies to make those drugs without copycat competition for a limited time. Without such protections, there’d be little incentive for private companies and investors to dedicate hundreds of billions of dollars to the scientists at the cutting edge of biomedical research.

The Founding Fathers understood that intellectual property rights were essential to the growth and success of the country, empowering Congress in the Constitution to secure this “exclusive right” to inventors. They placed the government’s power to protect patents on par with creating federal courts, declaring war, and creating an army and navy.

Our early leaders proved prescient. Nearly all of the medical breakthroughs in the past century would have been impossible without reliable and effective IP rights. These include recent developments, such as the antiretroviral therapies that have brought America’s HIV/AIDS death rate down by 80 percent, and the cancer therapies that have cut mortality rates by nearly a quarter since the early 1990s.

After more than a century of continuous breakthroughs, it’s easy to take this medical progress for granted. But we shouldn’t forget that, before IP rights and the free market brought us modern medicine, life was “nasty, brutish and short.”

People routinely died from diseases that are easily treatable today. Less than a hundred years ago, President Calvin Coolidge’s 16-year-old son died in 1924 after injuring his toe playing tennis on the White House lawn. Without antibiotics, Calvin Jr. developed a common blood infection that killed him within a week.

We can’t let misinformed, misguided politicians bring us back to those days.

America has had the strongest IP protections in the world – and as a result, we’re far more innovative than other nations. The United States accounts for about 5 percent of the world’s population and a quarter of its economic output, but invents two-thirds of all new drugs.

Despite this ingenuity, some public officials still view patents as barriers to healthcare access – particularly during public health emergencies like COVID-19.

Others urge the federal government to “march in” and seize drug patents under the Bayh-Dole Act of 1980. They misunderstand what this law does.

Bayh-Dole only allows the government to seize patents in extremely rare situations, such as when a company is unwilling or unable to sell or license a drug in the healthcare market. That’s not the case right now with COVID-19. In fact, drug companies are racing to turn lab discoveries into real-world treatments. Around 80 clinical trials are already underway for coronavirus drugs and vaccines.

If Congress guts intellectual property protections, biotech firms will hesitate to invest additional money in future research and development projects. There’s no surer way to limit patients’ access to health care than to undermine IP rights – and thus ensure that new medicines are never invented at all.

Adam Mossoff is a patent law expert at Antonin Scalia Law School, George Mason University, and a senior fellow at the Hudson Institute.