Despite the partial reopening of cities across the country, the novel coronavirus is still spreading. As of April 29, the national death toll surpassed 60,000. And as virus-related deaths continue to rise, governments around the world are calling for a cure. The search for a coronavirus vaccine to fight the virus has created a “new global arms race,” according to the National Law Review — and this race isn’t just for the cure but for the patents.
Obtaining a patent for a COVID-19 vaccine poses some challenges before even reaching the patent office, according to Justin Krieger, Denver office managing partner of Kilpatrick Townsend. Patent law in the U.S. will determine whether such a vaccine could be patented, and, if so, whether the government would take ownership of the patent.
To begin with, 35 USC 101 informs what can and can’t be patented, and biotech inventions have some special hurdles to clear in patentability. Some vaccines involve removing something like a protein from a virus, such as COVID-19, and using that as a vaccine itself. “You’re not going to be able to patent any of those naturally occurring bits and pieces, but if you’re modifying or delivering it in a novel way … you might be able to patent that,” Krieger said. “You basically can’t patent a law of nature or natural phenomenon. You have to do something more.”
But for a vaccine, there isn’t just one invention and one potential patent. “I don’t envision this to be one person invents something and patents it and that one person has the patent to the vaccine,” Krieger said. “These vaccines are highly complicated and often involve multiple people working together.” Often, the groups working together on such vaccines have someone working on DNA sequencing, another on delivery mechanism — so it’s very complicated and multiple patents can come out, Krieger said.
In addition to the question of whether a vaccine would be patent-eligible, there is also the possibility that the government could invoke a compulsory license and overtake the patent from the owner in the public health interest such as for fighting COVID-19.