Patents don’t incentivize vaccine or cure research – most is done by state actors
Jorge L. Contreras, 2023 - James T. Jensen Endowed Professor for Transactional Law and Director of the Program on Intellectual Property and Technology Law, University of Utah S.J. Quinney College of Law. Adjunct Professor, Department of Human Genetics, University of Utah School of Medicine “ PATHOGEN GENOMES AS GLOBAL PUBLIC GOODS (AND WHY THEY SHOULD NOT BE PATENTED)”, 55 N.Y.U. J. Int'l L. & Pol. 533, Nexis Uni, Accessed via University of Michigan //DH
In the United States, Congress is constitutionally authorized to enact a patent system to incentivize the creation of new and useful inventions.125 The exclusivity conferred by patents has played an important role in encouraging private biopharmaceutical firms to make large investments in costly R&D, clinical trials and regulatory approvals.126 Yet this instrumentalist rationale does not justify patents that claim pathogen genomic sequences.127 First, the identification of new pathogens in disease outbreaks is rarely undertaken by private parties seeking to develop commercial products.128 Instead, the identification of emergent pathogens is typically undertaken by public health authorities and academic institutions in geographic proximity to the outbreak. Unlike vaccines and therapeutics, the development of which is costly, risky, and [*561] time-consuming,129 sequencing a new pathogen genome is relatively inexpensive and requires little unique expertise.130 Thus, the financial incentives offered by patent exclusivity are not necessary to incentivize this activity, which is performed primarily by state actors in their public capacities.131