Patents are good. They generate a profit motive, and they disseminate knowledge through disclosure.
Shlomit Yanisky-Ravid and Regina Jin 21, Yanisky-Ravid, Professor of Law, Ph.D., Visiting Professor, Fordham University School of Law, Head of the Intellectual Property-Artificial Intelligence & Blockchain Project, Fordham Law Center on Law and Information Policy, Professor Fellow, Yale Law School; Jin, Ph.D., Patent Attorney, J.D., Fordham University School of Law, Postdoctoral Fellowship, Columbia University, Ph.D. in Chemistry, University of Utah, 2021, “Summoning a New Artificial Intelligence Patent Model: In the Age of Crisis,” Michigan State Law Review, 2021(3), pp. 811-860, https://heinonline.org/HOL/Page?handle=hein.journals/mslr2021&div=24&g_sent=1&casa_token=&collection=journals
The open-source advocates who support the complete elimination of patent rights may allege that patent protection of proprietary information limits the accessibility of knowledge. Despite the current call for harmonized research effort from governments, academic institutions, and industry to develop COVID-19 vaccine, the unwillingness to share patentable information may prevent the collaboration.316 We argue that patent owners regularly work together under the confidentiality agreement and the open-source model provides no incentive for the profit-driven patent owners, like pharmaceutical companies, to develop cures.
In the current debate of the vaccine patent waiver, the question is whether a patent waiver (which grants the free accessibility of vaccine formulations) would facilitate the vaccine availabilities in many developing countries.317 As claimed by Harvard Law Professors Terry Fisher and Ruth Okediji, the waiver may not solve the healthcare problem at least in the near future because developing countries lack the industrial foundation to manufacture vaccines even if the vaccine formulations are provided to them. 318
Some may question whether patent rights do induce the inventive effort since scientists may work for the sense of achievement or personal glory not necessarily in the pursuit of economic returns. 319 The degree of the inducement for invention by patent rights varies by fields. 320 An empirical study shows that the manufacturing industry would still have chosen to develop most of their products even if the companies had known the products are not patentable. 321 However, executives in the pharmaceutical industry reported without patent protection 60% of the new pharmaceuticals would not have been developed. The WTO's proposal to temporarily waive IP rights for vaccines ran into pushbacks from the pharmaceutical industry, who claim that the waiver would disincentivize future innovations. 322 The pharmaceutical companies would require the patent incentives to induce the research and development activities.323