Covid proves – the reason testing and vaccine development occurred quickly was the lack of pathogen patenting

The genomic sequence1 of SARS-CoV-2 (the virus responsible for COVID-19) was first elucidated in early January 2020 by a team of researchers in China.2 On January 5, they uploaded the sequence to the publicly accessible GenBank database maintained by the U.S. National Center for Biotechnology Information.3 On January 11, an Australian researcher [*536] posted the sequence to the website Virological.org and attracted widespread attention to its availability via Twitter.4 Days later, new diagnostic tests for the virus had been developed.5 Within months, new COVID-19 vaccines were being tested.6 By October 2021, nearly five million different sequences of the SARS-CoV-2 virus had been uploaded to public databases,7 where they continue to be used to monitor the evolution of the virus, to identify virulent mutations, and to trace the spread of infection.8

The speed and extent of international research cooperation in response to COVID-19 was immediate and widespread.9 SARS-CoV-2 sequence data was utilized by a broad range of researchers from geneticists and virologists to epidemiologists [*537] and public health officials.10 As one researcher observed, "[t]he enormous, immediate impact of sharing this data highlights the wealth of information encoded in pathogen genomes, particularly for understanding their origins and potential to cause disease."11 This sentiment was echoed by the Director of the U.S. Office of Science and Technology Policy (OSTP), who stated that "[i]mmediate public access to COVID-19 research is a powerful case study on the benefits of delivering research results and data rapidly to the people."12 The COVID-19 pandemic has brought into sharp focus the value of open access to and rapid sharing of pathogenic genomic data in response to infectious disease outbreaks.13

Data sharing at the speed and on the scale observed with COVID-19 has not always been the norm. During the H5N1 influenza pandemic and the SARS and MERS coronavirus outbreaks, researchers sought to patent newly identified viral genomic sequences shortly after they were determined.14 These efforts stymied research cooperation and imposed delays and barriers to the development of diagnostics, vaccines, and therapeutics.

[*538] The genomic sequence of SARS-CoV-2 and its many variants, however, were not patented. This lack of patenting activity on a potentially lucrative pathogen is likely due to the unavailability of U.S. patents on naturally occurring genomic sequences following the 2013 Supreme Court decision in Association for Molecular Pathology v. Myriad Genetics.15 Since this decision, U.S. patents have not been available on pathogenic genomes, and while few countries have explicitly followed the U.S. in abolishing patent protection on naturally occurring genomic sequences, such patents have rarely been sought.16 It is probable that the unavailability of patent protection for pathogenic sequences motivated researchers in China to share SARS-CoV-2 sequence data so rapidly.