Current case law allows rapid international cooperation on pandemics - the Covid response was possible because of Myriad
Alex Moss, 24 - the executive director of the Public Interest Patent Law Institute. She was previously at the Electronic Frontier Foundation and a patent litigator at Sullivan & Cromwell. After graduating from Stanford Law School, she served as a judicial clerk to the Honorable Timothy B. Dyk of the U.S. Court of Appeals for the Federal Circuit. Letter to Senators Durbin, Coons, Tillis, and Representatives Issa and Lofgren on the Patent Eligibility Restoration Act of 2023, signed by American Civil Liberties Union, Electronic Frontier Foundation, Generation Patient, Public Citizen, Public Interest Patent Law Institute, and the R Street Institute. 1/30, https://static1.squarespace.com/static/60e5457fb89be21d705fa914/t/65b9687cbb120871dd820938/1706649724600/Public+Interest+Letter+re+PERA+-+01.30.24.pdf //DH
Existing Patent Eligibility Law Improves Pandemic Response and Preparedness
The striking contrast between the response to COVID-19 and severe acute respiratory syndrome (SARS) highlights the importance of patent eligibility limits. During the 2003 outbreak of SARS, the Supreme Court had not yet clarified that naturally occurring gene sequences are ineligible for patenting. That led multiple companies to seek patents on the virus and its genetic sequence.10 Concerned about the detrimental impact these patents would have on research needed to combat the SARS crisis, the U.S. Centers for Disease Control and Prevention (CDC) defensively filed its own patent applications, explaining this step was deemed necessary to “prevent folks from controlling the technology” and “give the industry and other researchers reasonable access to the samples.”11
Thanks to the Supreme Court’s clarification of patent eligibility law, patent races have not hampered the COVID-19 response. Scientists around the world are contributing information about the thousands of new strains of coronavirus they have sequenced, data that is vital to understanding the virus (including its many variants) and developing testing and treatments.11 While there have certainly been serious obstacles to providing sufficient access to testing and vaccines, this is not because longstanding patent eligibility limits undermined incentives to develop them. Dozens of laboratories have created and are offering diagnostic tests.12 Numerous companies across the world have developed and are offering effective vaccines.
Had it been otherwise, if one company had been allowed to patent the viral genome, the rapid development of testing, treatment, and multiple vaccines that occurred would have been substantially complicated and delayed, because the patent holder would have had the power to block others from developing or offering competing treatments, tests, or vaccines.13