Everything Depends on Coronavirus R&D Partnerships—Don’t Let the Critics Wreck Them

By Joseph Allen
March 24, 2020

“When we do come up with a vaccine (or more than one) the government is going to be the buyer…. And, if necessary, the government has the power to seize business assets (including inventions) to allow it to deal with a national emergency first and worry about fair compensation later. So, you’ll spend your time a lot more wisely worrying about where to find toilet paper than fretting about the cost of a coronavirus vaccine.”

https://depositphotos.com/112530546/stock-photo-business-rescue-solution.htmlThe world is teetering on the brink of a public health and economic catastrophe, depending on emergency partnerships between our public and private sectors to develop a successful treatment for the coronavirus. If there was ever a time to be thankful that we have policies in place making that possible, it’s now. But there are those who want to use this crisis to return to the failed policies of the past.

Here’s the bottom line: the Bayh-Dole Act works. It allows the private sector to collaborate with universities and federal laboratories, like the National Institutes of Health, knowing that intellectual property they bring into such partnerships will be protected. It also allows academic institutions and federal labs to determine what type of license is best suited to promptly commercialize their inventions.

But some want to return us to the days when the government seized inventions made with even small levels of federal funding. Because they were only available through non-exclusive licenses, they gathered dust on the shelves as the incentives needed to take them from the lab into the marketplace were destroyed. As one of Napoleon’s ministers said of such foolish policy choices: “It was worse than a crime. It was a blunder.”

There’s no room for unforced blunders right now.

An opinion piece in The New York Times titled “Drug Companies Will Make a Killing from Coronavirus” claims “unless we fix the system, American taxpayers will get gouged on a vaccine they paid to produce.” For a solution, the article praises a letter to the President signed by 46 members of the House of Representatives. They wrote:

Specifically, we urge the Department of Health and Human Services (HHS) not to provide an exclusive license to any private manufacturer for a coronavirus vaccine or treatment in any government grants, contracts, or licensing agreements. Providing exclusive monopoly rights could result in an expensive medicine that is inaccessible, wasting public resources and putting public health at risk in the United States and around the globe. If HHS or any other federal agency moves forward with such a proposal, we urge you to instead issue a limited license and implement requirements  that a vaccine or treatment be made available at an affordable price.

Ironically, not long ago similar Congressional voices objected to the issuance of an exclusive license to develop a Zika vaccine invented by the Department of the Army on the same grounds as those now being trotted out. The deal fell through and that vaccine is still sitting on the shelf. No company expressed any interest in taking a non-exclusive license to develop it. “(see “Bernie Sanders’ Really Bad Idea”).

Those who forget history are doomed to relearn the same lessons at greater cost. In 1968, President Lyndon Johnson asked the Comptroller General a simple question: how many drugs were being developed from National Institutes of Health (NIH) funded research?  The answer—none, when the government took inventions away from their creators and tried to license them non-exclusively. That was one of the reasons that Bayh-Dole was enacted. Since its creation more than 200 new drugs and vaccines are protecting health around the world. And once we allowed our public and private sectors to effectively collaborate, the U.S. became the undisputed leader in the life sciences. The industry is largely driven by innovative small companies, which have some of the most promising therapies to meet the current crisis.

Bayh-Dole is Critical in Developing the Most Promising Coronavirus Fix

The potential coronavirus vaccine generating the most hope came about because of a partnership between a young biotech company, Moderna, and scientists at the National Institute of Allergy and Infectious Diseases, headed by Dr. Anthony Fauci, America’s most reliable expert in the current crisis. NIH and academic research institutions are working diligently with Moderna to move it through the necessary tests and evaluations. They can proceed at full speed because the Bayh-Dole Act ensures that if an invention is made during that process, Moderna can obtain sufficient rights to move to market ASAP. The last thing we want at this stage is to hamstring the company leading the charge by requiring that a critically needed vaccine can only be developed non-exclusively.

The critics also insist that the government is assuming the risk and expense of development, which is simply not true. The companies that dropped other promising projects to shift their resources into working 24/7 on the coronavirus are taking a huge gamble that may never pay off. To imply they are doing so to gouge the public is reprehensible.

Without Industry, We’re Sunk

Luckily, not everyone is drinking the Kool Aid. Rich Lowery wrote an effective rebuttal in National Review titled “Only the ‘Crooks’ Can Save Us Now.” He says:

A specter haunts progressive America — the possibility that a company might make too much money solving the world’s coronavirus problem…

When faced with what’s been called a once-in-a-generation pathogen, would we rather have a robust commercial drug industry or not? Brilliant, creative people scattered throughout companies and universities working to be the first to a solution or not? Investors looking to back promising research or not?

If your answer to any of these questions is “no,” you are probably a socialist, a populist firing at the wrong targets, or someone incapable of doing basic cost-benefit calculations…

It is a marvel that the National Institute of Allergy and Infectious Diseases is already working with a Cambridge, Mass., company, Moderna, on a vaccine trial. This is a model of public-private cooperation. Anyone who would want to subtract Moderna from the process because it stands to profit is an ideological zealot heedless of public health.

This crisis brings home the incalculable value of a world-class pharmaceutical sector. We can continue to shelter in place or hope that the “crooks” pursuing breakthrough drugs and treatments make the current disruptions in our national life completely unnecessary.

When we do come up with a vaccine (or more than one) the government is going to be the buyer. It will be doing so in the necessary quantities, under federal acquisition rules and regulation purchasing contracts that ensure favorable pricing for the United States. And, if necessary, the government has the power to seize business assets (including inventions) to allow it to deal with a national emergency first and worry about fair compensation later. So, you’ll spend your time a lot more wisely worrying about where to find toilet paper than fretting about the cost of a coronavirus vaccine. It will be up to public health authorities to ensure that it’s readily available (the vaccine that is, unfortunately not toilet paper).

Hold Their Coats

The eyes of the world have anxiously turned to the United States of America looking for salvation as the coronavirus ravages the globe. We are the undisputed leaders in developing critically needed new medicines because our patent system promotes innovation while the Bayh-Dole Act ensures we can seamlessly form public/private partnerships. As a result, our best minds are working diligently to save us.

President Lincoln said of the critics carping from the sidelines during the Civil War: “If you won’t fight yourselves, at least hold the coats of those who will.” I don’t know about you, but I am profoundly grateful to those in industry and government who are working tirelessly to protect us in a real crisis. Now’s not the time to take away the tools they need to succeed. We better get this one right. The stakes have never been higher.

Image Source: Deposit Photos
Image ID: 112530546
Copyright: lightsource 

The Author

Joseph Allen

Joseph Allen is a Featured Contributor on IPWatchdog.com, and a 30-year veteran of national efforts to foster public/private sector commercialization partnerships, and author of numerous articles on technology management for national publications.

Joe served as a Professional Staff Member on the U.S. Senate Judiciary Committee with former Senator Birch Bayh (D-IN), and was instrumental in working behind the scenes to ensure passage of the historic Bayh-Dole Act. He is our resident Bayh-Dole expert, and will write frequently about Bayh-Dole and issues surrounding the commercialization of university research.

In 2008, Joe founded Allen & Associates, through which he offers consulting services assisting clients in technology transfer issues, including developing effective communication strategies with national policy makers.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 41 Comments comments.

  1. Anon March 24, 2020 6:58 pm

    Thank you.

  2. B March 24, 2020 7:10 pm

    Not to worry. Congress’ response to COVID is filling legislation that will address student debt, cap airplane emissions, and install a little social justice. Doing something meaningful, good or bad, isn’t high on the agenda.

  3. angela GIBSON March 25, 2020 5:13 am

    “The eyes of the world have anxiously turned to the United States of America looking for salvation as the coronavirus ravages the globe”.

    I almost wet myself laughing at that. Sorry to burst your bubble but here in the Europe we are most categorically not looking to the US to save us. You are welcome to of course but I think you’ll find Europe also has a strong life sciences capability (arguable stronger) which is also doubling down on looking for a vax.

    I would be cautious about holding a vax to ransom. The world is not quite what it was yesterday.

  4. Concerned March 25, 2020 7:29 am

    B:

    Good point. I think your observation implies indirectly an observation that many of us feels.

    Unfortunately, it will need to be a national crisis before Congress addresses and fixes the patent system.

    I am sure inventors out there are thinking how the weakening of the patent system is contributing to the carnage of the COVID 19.

    I personally pointed out yesterday to an associate an observation regarding our company. The uncertainty of my pending patent is putting it to the people and their caregivers.

    Not that my company is on complete hold, however, what investor is going to invest major dollars just to have a competitor with better political connections say thank you for the unprotected gift?

    As my previous IP Watchdog article stated: Patent uncertainty, real people, real harm.

  5. Anon March 25, 2020 8:41 am

    I am not a fan of President Trump (and did not vote for him), but it is telling that his approval rating is at its highest level ever (with the media absorbed in COVID-19; and it coming across as extremely distasteful to be taking political shots in the face of the pandemic — although that is still happening, but with more kickback against those taking the shots).

    That being said, it is not just a national crisis (of the innovation variety) that will bring about change, but the required diligence of those continuing to seek out positive change (as opposed to the now-banned, Efficient Infringer-supporting rants of ‘just give up’).

  6. Ternary March 25, 2020 11:30 am

    “A specter haunts progressive America — the possibility that a company might make too much money solving the world’s coronavirus problem…”

    That is not the specter. The concern is that short-term interests of a company places products (including drugs) outside the reach of entire groups of consumers. Most of us don’t give a hoot how much a company makes. We are concerned if we can afford it. And, as behavior of companies have demonstrated, that is not an unreasonable concern.

  7. Ternary March 25, 2020 11:47 am

    Angela @3 I tend to agree with you on the availability of skills and knowledge in Europe. There is no lack of it. We are still discussing here how to increase production of (very complicated) ventilators. To ramp up production during this crisis appears to be not achievable in the short term.

    We see efforts in simple ventilator design appearing or re-appearing. One example is the mechanized Ambu-Bag at MIT in the US and a simple mechanical ventilator at Oxford/King’s College in the UK. In that sense Europe is most certainly not waiting for the US to rescue them (which won’t happen anyway under the current circumstances).

    Where the US and the Europe (UK) generally differ is in execution. That is: make it happen. I still have confidence in our industrial infrastructure to resolve the issue of ventilators quickly. This used to be a role that US inventors and entrepreneurs were good at.

    It is not a situation we want to be in, but this is where resilience can be demonstrated, with as best outcome that both continents prove to be able to do this.

  8. MaxDrei March 25, 2020 4:58 pm

    Ternary, let’s talk about “execution” and a difference between the USA and Europe which I don’t understand. All political leaders are now exhorting their voters to practise social distancing. All but the President of the USA, in their respective press conferences, set a good example. Only in the USA does the political leader tell everybody else to keep their distance from other people while standing at a lectern in the middle of a huddle of other people. You suggest that the USA differs from Europe in its ability to “make it happen”. What exactly is the plan that your President wants to execute, to make happen? Take the opportunity perhaps, to engineer a massive cull, a thorough pruning, to reduce drag on the economy?

    And Joseph, as to your “eyes of the world” point, I note that countries like China and Germany are winning hearts and minds by delivering concrete help to the government in Italy, even while your government tried to buy up, exclusively for the USA, the vaccine developer in Germany. And as for “execution” how about those complete hospitals that China built in a couple of weeks flat?

    America First, the world has duly noted, leaving it a bit problematic to see any longer the USA as any sort of “salvation”.

  9. Ternary March 25, 2020 6:48 pm

    MaxDrei, I am not saying that the Federal government, including the sitting administration, is “making it happen,” because they are not (yet). They are slow, like a super tanker. However, there are also enough European situations where one starts to wonder about their governmental capability to make quick and rational decisions to address this crisis.

    To rely on the government for initiatives misunderstands the role of community and entrepreneurship in the USA. That is why the current breakdown of our patent system is so disastrous. It reflects a harmonization with Europe that mainly imports the bad aspects with a dominant focus on institutional and corporate interests.

    I sincerely hope we do not have to rely on mass production of simple mechanical ventilators. But if so, I have less confidence in Europe for achieving that. At this time probably China is the only manufacturing infrastructure that can achieve such a rapid ramp-up. However, on a communal scale you already see local groups collecting and assembling parts for medical purposes in the US. You may say that in Europe that is the responsibility of the government. But what if they don’t? Like now!

    To say that the government is engineering ( which means as deliberate action) a massive cull is utter nonsense. You really should not say these things, not even in a friendly exchange on a patent blog.

  10. Concerned March 25, 2020 9:21 pm

    Mark Cuban on CNBC tonight said the United States should become the number #1:country on robotics, that we are not #1 now. This goal would help diminish our dependence on other countries regarding supply chain. Covid-19 helped illustrate this dependency.

    Who is going to invest in this venture with the current status of our patent system? This question has been asked by various posters on this forum regarding other areas of commence that require huge sums of money to develop.

    Any thing a robot can do certainly would be allegedly the abstract idea of accomplishing a function previously done by a human. Why bother with spending a ton of money to develop and then be ripped off?

    Just let EFF develop the robotics with Mr. Cuban’s money.

  11. MaxDrei March 26, 2020 5:37 am

    Ternary, I agree with you, that one should not be alarmist. The word “cull” was intended to shock readers into giving thought to the issue. Dismissing it as “utter nonsense” does not prove that it is utter nonsense.Tell me, what do you then make of the statements by i) the Republican Party Senator who surmised that older people would “rather die” than impede the economy. And then there’s that fellow in England who controls Prime Minister Johnson and keeps him on message. The message: “Herd immunity, protect the economy, if some old people die, so be it”.

    That initial assessment in England by Her Majesty’s Government has now been thoroughly debunked. But what’s going on inside the White House, I don’t know. All I know is that the incumbent expects everybody to be back to normal by Easter Sunday.

    I comment to get it across to people that a trade off between “old people” and “the economy” is not going to help the economy. Let’s watch how they do it in China, in a totalitarian society. Nobody yet allowed to leave Wuhan. Entire hospitals up and running within weeks. In even in England, more than 400,000 people have come forward, volunteering to serve in its revered National Health Service.

    When all this is over, then we can see what we can learn out of it. After all, it could have been worse. The 1918 Spanish Flu (which by the way originated in the American Mid West) was more deadly to young adults than to seniors. What would we be going through now, if COVID-19 were proving more deadly to youngsters than to seniors?

  12. Ternary March 26, 2020 11:53 am

    MaxDrei, Many politicians here, and also in Europe express their frustration with this crisis by saying indefensible things they have to walk back later.

    Being stupid is not always being malicious. An ideological conviction is not always a rational filter. Inaction seems to be such an ideological conviction that is being walked back on pretty much a global scale. Consequences of stupid actions and inaction can be disastrous. Unfortunately we have had more than a fair share of that.

  13. MaxDrei March 26, 2020 2:02 pm

    Yes, of course. But who is more expert than a politician, in choosing their words carefully, lest they be “quoted out of context” or have to “walk back”. Can we not expect of them, as a minimum, that they choose their words advisedly?

    In the UK, the guy feeding policy to Johnson is a science nerd, and sincerely believed in the science underlying the now discredited “herd immunity” theory. and that it provided the best way to achieve the best result for the greatest number of people. At the time, it was completely “defensible” and anyway, it was said in briefing the Prime Minister and leaked. It was never said in public..

    You tell me it is “many” politicians in Europe who have to walk back from statements made to the public that were indefensible and were made because of “frustration”. Did you perhaps have Brazil in mind? But if not, who were you thinking of? Who are these “many” people?

    Mencken said:

    Democracy is the theory that the common people know what they want and deserve to get it good and hard.

    It is getting increasingly hard to agree with Churchill, that democracy is the best way, going forward.

  14. Ternary March 26, 2020 5:41 pm

    MaxDrei: Read the news: Initially: do not close, do not cancel, do not postpone. Later: well perhaps postpone temporarily, let’s close some. Now: let’s close all, cancel for the year. For schools, sports , concerts and the list goes on. In Italy, Spain, UK, Netherlands, Germany. I am not going to recap the news for you.

    All half-assed measures, too little and too late. Politicians afraid to repeat what their scientists (or some of them) told them (hopefully). There were very detailed and extremely scary models of contagion out. Before Feb 2020.

    For all the scientific information we have, there is an stunning unwillingness to apply it. On top of that there is an almost medieval stupidity going around including: corona parties in Germany, overcrowded subways in London, crowded beaches in the Netherlands, ineffective containment in Italy. It was already clear in February that spring activities in Europe like ski vacations and carnivals would be sources of massive contagion. But political leaders (yes in Europe) refused to take action, indicating that there was no immediate reason to interfere and that they would “carefully monitor the situation.” Well, and here we are. With now the “political leaders” claiming that “social distancing” is the way to go. Their thinking probably “evolved” as they say, rather than walking back their wrong decisions. You are right in one regard: it wasn’t vague frustration it was political cowardice and lack of leadership.

    Which brings me back to the original comment by Angela@3 on Europe as a potential source for solutions for this crisis. (rather than discussing who has the worst politicians).

    Re @3, I again agree that Europe has an enormous intellectual and scientific potential to solve the crisis. I also maintain that there is little indication that Europe will solve this crisis (though perhaps Europeans will come up as first with a vaccine.) Though I would love it if Europe finally showed some backbone and global leadership. Neither you, nor Angela have explained why Europe (as one of the top 3 world economies) is well positioned to provide solutions and more so than the US or China.

    If the patent system plays a role in this at all, I believe that the original intent of the US patent system is helpful in this situation. I also believe that our harmonization with Europe to focus on protecting corporate and institutional interests in patent matters (Sport of Kings, as it is sometimes called) is not helping.

  15. B March 26, 2020 6:28 pm

    @MaxDrei “You suggest that the USA differs from Europe in its ability to “make it happen”. What exactly is the plan that your President wants to execute, to make happen?”

    Dude, our Senate is on the ball. They just passed a mega-spending bill that gave money to NPR, the Kennedy Center for the Performing Arts, PBS, etc.. Meanwhile, Pelosi wants to enact further legislation forcing corporate boards to have diversity, enact more giveaways, etc.

    Apparently, our Congress is taking the view that large amounts of pork-spending and social justice will cure this plague.

  16. angela GIBSON March 26, 2020 6:32 pm

    @Ternary #14

    Re my post #3. All I was commenting on was that the US seems to have this picture of Europe cowering in our Sixth Arrondissement garrets pulling wretchedly at a worn out handkerchief glancing furtively at the radio anxiously waiting for the 10 o’clock news from America.

    “Though I would love it if Europe finally showed some backbone and global leadership”

    – Me too. But Europe is not into global leadership, that’s just not its groove.

    “Neither you, nor Angela have explained why Europe … is well positioned to provide solutions and more so than the US or China”

    – For me, its because I wasn’t trying to make any “My Dad’s bigger than your Dad” point. I was just pointing out that do we have quite a lot of capability ourselves.

    My post, which I am kind of sorry I made now because it feels like it has generated a degree of ill-will when actually I really like America and I like this website and I like many of the regular posters here – including you Ternary, in fact you have been one of my favourite posters :-). I was just expressing a reaction of annoyance to the “The eyes of the world have anxiously turned to the United States of America looking for salvation as the coronavirus ravages the globe”.

  17. B March 26, 2020 9:37 pm

    @ angela “My post, which I am kind of sorry I made now because it feels like it has generated a degree of ill-will when actually I really like America and I like this website and I like many of the regular posters here – including you Ternary”

    I like ternary too. That said, I don’t think you’ve sparked an iota of ill-will, and most of us adults don’t want America to be the Official World Savior. FWIW, I’ve represented some brilliant European inventors, and I know for a fact that the lovely and talented Sherry Knowles has a special place in her heart for the brilliance of European medical research. Europe is awesome, except maybe for Albania, Bosnia, and Kosovo.

    As to world leadership, I’m not a fan. I’m a cynic of all three branches of the U.S. government. You don’t have to like Trump to hate our Congress, our courts are sometimes so out to lunch one wonders how anything useful gets done, we can’t convert to the metric system, and then we have this idiotic worship of celebrities and Royals.

    We’re a big, retarded giant blessed with friendly retarded (but awesome)neighbors. While we do have cool toys and our beers and wines are pretty decent these days, those aren’t the best qualifiers for world leadership.

    Signed: a proud American who wouldn’t live anywhere else — except maybe Baja Norte on the Pacific side. Maybe Costa Ballena, C.R., or somewhere else with good surfing and fresh tortillas.

  18. angela GIBSON March 26, 2020 9:54 pm

    #17

    Well I’m glad we’re ending the day still friends !

    In truth, rather you guys as world leaders than many, many, many others.

    (Surfer huh? I’ve done a little paddling a Swamis …Maybe consider a trip to Ireland, Lahinch, when we’re all allowed to travel again. Fantastic craic).

  19. Ternary March 27, 2020 12:24 am

    Angela, no need to be sorry. I actually agree with you as I said before. Europe is not the scientifically poor cousin of the US waiting for the clever American cowboy to come riding in with a solution.

    Most of us probably remember the role of l’Institute Pasteur in discovering the HIV virus. So there will be very few people who believe that you are cowering in front of the radio waiting for medical news from America. (nice touch though, that radio, hopefully operating on tubes and AM shortwave with a lot of fading and noise for sure).

    But America still has a way to attract the best people who make things happen. (No MaxDrei, I am not referring to the Federal Government. Though there are many exceptional scientists in US Federal Labs and institutions.) Europe has the potential to solve many problems, but they don’t.

    As they say here, perhaps it is something in the water. Or perhaps it is a cultural thing. In that context I have made my comments about the US patent system compared to the European system. The US has been different, almost from the beginning. The US patent system has been affordable and democratic right from the start. We have applied the principles of Enlightenment and Diderot in patents because they were such clever and operational (European) ideas. Something to jumpstart this isolated agricultural society. It has created the almost mythical image of the American inventor, on par with the Cowboy of the West. No more, unfortunately. We still have inventors, but very few independent ones. And if and when they are successful, they are most likely to be smashed by the current patent system.

    Now we apply Europe’s focus on companies and institutions in patents, but we don’t use what I believe is Europe’s very smart application of computer implemented inventions and use of math in patent claims. It is somewhat infuriating, to say the least.

    No ill will from my side at all. Every time I visit Europe it strikes me that there are no above ground utility lines (electric and telecommunications) like here. Which means that here with every major storm (and fire) power goes out, which may take weeks to repair.

    It boggles the mind that a continent that is able to execute a rational plan to put all utility lines under the ground and install universal healthcare is so unable to be successful in other things. As you said, perhaps it is not your groove. It is certainly not a lack of intellectual capabilities.

  20. MaxDrei March 27, 2020 6:16 am

    COVID-19 is a Wake-up Call. The next mutation might be worse, taking out children and young people preferentially.

    The next half century will see an unprecedented struggle for success, between, on the one hand, the western democratic idea of government and the totalitarian style we see in China. China can build hospitals in 2 weeks, and ruthlessly enforce total shut-downs, but can also suppress any news which the government finds unwelcome. Democracies are awfully slow to “get their act together” but once they focus they can be much more adaptable than the world’s autocracies.

    Recall Tomas Hobbes and his 17th century theory of The State as “Leviathan”. Basically, we haven’t advanced very far from his view of society. Worse than anything is a breakdown of “The State” (because then we lose our very lives). Our very survival depends on an all-powerful “State”.

    What is the best way, now, to preserve The State, so that we can go on living?

    https://en.wikipedia.org/wiki/Leviathan_(Hobbes_book)

  21. Anon March 27, 2020 8:05 am

    MaxDrie,

    If you believe “Our very survival depends on an all-powerful “State”.” you have already lost.

  22. angela GIBSON March 27, 2020 8:51 am

    @MaxDrei, what are your thoughts:

    I am interested to see how the EU tackles COVID-19 – will this speed along deeper integration? It’s the EU’s first big challenge. And opportunity.

    I would not be very surprised if one outcome from this was that the UK backs away from leaving the EU. If the EU can orchestrate a response and win hearts and minds – it’s not doing a bad job so far – then the 50/50 ‘ness’ feeling of the people could easily tip the other way.

    Finally, can anyone imagine anyone free licensing the vax if they find one? I could imagine the EU doing that – if it were found off the back of their funding and therefore in their gift. I am surprised to hear such a hard line on being able to patent a vax which feels exploitative and a really bad PR move. Although Ternary did make a good point in that as long as you can afford something you don’t really mind about profits (Apple!).

  23. MaxDrei March 27, 2020 11:19 am

    Angela, 1) COVID-19 will be the death of the Euro-zone, 2) the UK has already departed the EU and will never re-join, and 3) the notion of a patent owner getting injunctive relief out of a court, to restrain use of the vaccine that is essential to save lives, is beyond my imagination. You know, patents are important. But not that important.

    anon, just ask anybody trying to survive in one of the world’s “failed States” whether or not they crave an all-powerful State. Alternatively, read “The Road” by Cormac McCarthy

  24. Anon March 27, 2020 1:54 pm

    MaxDrei,

    I need do neither of those things to confirm that if you are preaching totalitarianism, then YOU have already lost.

    Maybe you should read the Declaration of Independence (especially given how much time you spend on US patent law blogs).

    Yippee Ki Yay.

  25. MaxDrei March 27, 2020 3:47 pm

    The Leviathan of Thomas Hobbes is entirely compatible with representative democracy. The voters choose how much power to devolve to The State and, if they don’t like it at the next election, they can vote it out. It’s when The State, once in power, starts cancelling the next election that the totalitarianism begins.

    So, no, I’m not preaching totalitarianism. I just happen to think that the personality of a limited liability publicly traded corporate personality is inherently psychopathic so the people need for their protection a power greater than that which a corporation can wield, namely, that of The State.

  26. Anon March 27, 2020 8:12 pm

    …OR, one simply limits the power of the juristic person

    (Sort of what I have long advocated vis a vis Citizens United being nullified)

    Your problem is that that ‘more power’ version simply falls prey to those with connections and under the table power. You seem blithely unaware of that goes.

  27. Anon March 28, 2020 9:11 am

    Please pardon the autocorrect:
    “of that goes” => “of how that goes”

  28. Anon March 28, 2020 9:14 am

    MaxDrei, I also recommend that you read the history regarding (oppressive) control attempts over innovation that in no small part is part and parcel of a too-strong government in the newer Trade Secret thread written by James Pooley.

  29. Ternary March 28, 2020 1:07 pm

    MaxDrei, you being at the other side of the ocean, of all places, must be aware of “strong leaders” taking over power by manipulating the levers of state. And no, not just 90 years ago, but right now in Russia.

    Anon is right: you should read our Declaration of Independence. While this country has used the principles of Enlightenment to get rid of despotism. Europe, with some exceptions, installed Despotism (sometimes Enlightened, often not). And it is not long ago that Western Europe finally got rid of its last dictators. This is why I consider the creation of the European Union as nothing less than miraculous and very much worth improving. My critique of Europe is its current inability to reach its full potential, not its aspirations. Brexit proves that irrational behavior still is well and alive and how difficult this European experiment is.

    It is disconcerting to see this re-emerging call for “strong leaders” coming from Europe, including its intellectuals who should know better. It is in essence a call for “leaders” not having to listen to others. To push through an ideological program of which we know that it is likely only beneficial to a small or very small group. Many of these strong leaders turn out to be disastrous. We know it, you know it and still this wish for some “benign dictator” keeps returning. Reliance on Hobbes may provide a bit of an intellectual sauce. Empirically we know all too well how it will end.

  30. MaxDrei March 28, 2020 5:50 pm

    Well yes of course, Ternary. Just to make my view clear: the model to emulate is 1) The Rule of Law 2) Separation of Powers 3) representative democracy and 4) strong powerful State under which everybody feels safe and can flourish. Exactly that is what we have now in Germany. Forget the number of reported COVID 19 cases. Focus instead on the number of deaths. Germany has hugely more ventilators than any other country. It has chosen to spend more of its wealth on its health service than other countries. Why that then?

    But how compatible is that with all-pervasive social media? It strikes me that social media confuse the mind of the average (IQ 100) voter as to render that vote liable to crash the State that we all depend on for our safety and continued existence into old age. Why else do so many foreign powers use social media to interfere with election campaigns on both sides of the Atlantic? We see that trend also here in Germany. Voters are ever more irrational. What, other than social media, is the cause of that?

    Churchill again: the best argument against democracy is a 5 minute talk with the average voter.

    And that was before there were any social media (whether or not manipulated out of Leningrad or Montenegro) to scramble even more thoroughly the thinking of that voter.

    What I’m looking for is a way to help the voters to cast their vote critically and rationally. Is there a way. Of that, I’m doubtful.

    Otherwise, unless something is done to help voters to distinguish fact from fiction, over the course of the next 50 years or so, aided by the psychopathic corporate world, the deplorable political system of The Middle Kingdom will come to dominate the planet and this is not what I want.

    Let us return to the piece which prompted this thread. In the UK, the Patents Act of 1949 included sections which allowed The State to use a patented invention “for the purposes of The Crown” (whatever the patent owner thinks about that) and pay compensation afterwards to the patent owner. How much compensation is justiciable through the courts.Of course, it was put in there for purposes of national defence. But in the 1950’s the then Health Minister Powell was on the point of using it to bring drug prices down. Big Pharma settled though. Today, the Crown User provision is section 57 of the 1977 Act. It might yet be needed again.

  31. Anon March 29, 2020 7:16 pm

    MaxDrei,

    I call BS on your calls – both to attempt to NOT discuss the error of totalitarianism (attempting to merely place that concept is a ‘nice package,’ when such is a danger to those other items of that nice package), and your call to return to the piece which prompted this thread (as if you being faced with things to consider is not important).

    Another clip for you to ponder. This one by Joe Rogan, a voice of the ‘typical’ US citizen (leastwise, one that is not one that would be called ‘candy-@$$’).

    https://youtu.be/9Peqt_0wen8

  32. MaxDrei March 30, 2020 5:40 am

    I watched your YouTube clip. So what? The China expert and I agree on every detail. Nothing new for me there. Also the Reichstag fire and historical stuff like that. He’s right about that too.

    Where I depart from the clip is the cynical view that in an existential crisis, politicians will, above all else, leverage their own “agenda”.

    Just because Adolf did, and Xi is doing now is no reason to say that Merkel/Scholtz in Germany, Macron in France or Johnson/Sunak in the UK is doing it too. There is a failure of logic here. All dogs have tails. This animal has a tail. Ergo, this animal is a dog.

    Rather, at least here in Europe, what they are doing is trying, first and foremost, to avoid the situation where you have to dig big pits around the periphery of every huge city, for urgent reasons of hygiene) to bury the bodies of the thousands of citizens dying on the streets. I’m serious. Watch what happens when COVID-19 arrives in India. Looking at the way your President behaves, I get the feeling that such pits are either beyond his imagination or that he’s been told but doesn’t care.

    As to innovation, every country in which I have lived cherishes the belief that it is inherently more innovative than any other. It’s a fantasy, entertained by readers here, that the patent system of the USA is uniquely stimulative of innovation. The idea that China relies exclusively on a gun to the head to force innovation is another comforting illusion. After we have got through this COVID-19 period, let’s look and see what were the innovations that saved us, where they originated, and how the research was financed.

    The big corporations finance only that which has the potential to generate mega profits. That’s OK but not good enough on its own. None of them had any interest in researching the corona virus. Garage inventors can write software but deciphering the corona virus is a step too far for them. For such research, we need The State as well.

  33. Anon March 30, 2020 6:22 am

    MaxDrei,

    You absolutely missed the point.

  34. MaxDrei March 30, 2020 8:28 am

    Your own YouTube clip, anon, perpetuates the nonsense that patentable invention (or a COVID 19 cure) comes from a “Flash of Genius” (which is not made any more likely by holding loaded gun to the head of the inventor. You yourself, know full well that in chem/bio patentable invention comes only out of thousands of hours of painstaking and rigorous study. The “gun to the head” Flash of Genius dismissal of all such research in States that do not practise representative democracy is fatuous.

  35. Anon March 30, 2020 11:18 am

    MaxDrei,

    A second call of BS on your same tactics.

    Neither my own YouTube clip, nor the immediate article here support your stated position, nor the spin that you are attempting in your subtle acceptance of certain counterpoints, but insistence on your position.

    Your “path” of wanting to require a powerful State (but for ‘benevolence’) absolutely misses the historical context that TOO powerful State action has often been first generated through such “but we need it, it is for your own good” positions.

    Rather than the characterization of “cynical” that you spun in your response at 32, the proper characterization is: “critical” (as in, applying critical thinking).

    While you appear to merely deflect with “agreement,” you fail to actually take that agreement and integrate it into your position.

    Such ‘false politeness” is nothing more than a parlor trick. Do NOT agree and then ignore what that agreement must entail.

  36. angela GIBSON March 30, 2020 2:19 pm

    Have I got it right?

    MaxDrei would favour a more “in-control” government at this time to assist with the resolution of corona. This might include seizing or at least mitigating against someone (who would certainly be a corporate entity) price gauging or restricting supplies because they hold the corona vax patent.

    Anon worries that giving more powers to governments is a slippery slope to what could end up in dictatorship. This is bad so we must exercise fierce caution if not absolute rejection.

    If I have got the gist then I find I can agree with you both – they’re separate points really?

    If I have got this right, I would like to understand Anon’s position better specifically with regard to the present corona situation – is there still never any room for a 2nd speed of government? (Apologies if you may have explained it and I’m being a bit slow).

    (As an aside, you both write beautifully, wish I had even a tenth of either of your powers of verbal reasoning and writing)

  37. Anon March 30, 2020 2:38 pm

    Miss angela,

    It is more nuanced than that. Once government has power, it is difficult to dislodge those powers. We must remain vigilant — especially in times of difficulty — that we do not sacrifice the structure of limited government for the immediate balm of safety.

    Heed the words of Benjamin Franklin:

    “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

    No One is saying to eliminate any and all government funding of research. Explicitly, the story to which these comments attach indicate the opposite of what MaxDrie advocates (even as he attempts a different spin).

  38. MaxDrei March 30, 2020 5:42 pm

    Vital to survival, at a time of crisis, is how much trust citizens of a representative democracy place in their government of the day. As best I can tell, citizens of Germany, Italy, France, Spain and Sweden (for example) are placing more trust in their governments than the citizens of the UK and the USA. If voters lose trust in the State to protect them, that is dangerous for democracy.

    The Franklin quote raises more questions than it answers. There is always and inevitably a trade-off between “liberty” and “safety”. This was evident with terrorism. It is even more evident as we go through the struggle to contain the COVID-19 threat. There is a spectrum of attitudes, between individuality and society, with the USA at one extreme and China at the other. As with many things, there is a balance of common sense and reality, somewhere in between the extremes of the spectrum. It’s finding the right balance that is the challenge for humanity.

    The Exit Strategy is all-important. In a collapse of the economy, a lot of people die prematurely, for lots of reasons other than the corona virus. Likely far more deaths than from the virus. So we can’t just do what the virologists and epidemiologists say is optimal. It’s more complicated than that. The economy must be got back up to speed sooner rather than later. But how soon? That’s the crucial call.

    Whether Johnson or Trump understand the complexity, I doubt. But Angela Merkel gets it, thank goodness. Watch out for the issue of “Passports” to Germans who have come through infection, are immune, and so can get back to work. But how do you find out who gets such a Passport. Test them for antibodies in their blood. Who, except for Germany, is doing that yet? China? South Korea? Singapore? Hong Hong perhaps.

  39. Anon March 30, 2020 6:17 pm

    Yet again, BS on your post, MaxDrei.

    This is not about ‘lost’ trust and is about ALWAYS having a healthy skepticism of government.

    Obviously, you have done none of what I and Ternary mention, and have not engaged on the fundamental aspects that the US Sovereign has had since Day One. Maybe had you done so, your comment regarding Benjamin Franklin would be the opposite of ‘raising more questions.’

  40. angela GIBSON March 30, 2020 7:07 pm

    I would say Boris Johnson has reasonable support actually. Of course it helps that the Labour opposition party are without experience, gravitas, capability or even sense. I find the thought of them in power genuinely frightening – but thankfully so did a lot of other people in the recent general election.

    But actually I think they (the Conservatives) are getting their support on their own merits. We get a briefing from the Johnson government every day and in that briefing two or three people will give an update and take questions. One is always a Cabinet minister (a different one) and someone from the medical community (again, a different one). This has unexpectedly showcased the scale and caliber of Cabinet which has made me feel a lot more assured. So Boris being holed up with Corona is not a worry – I now see that he has a good team to share the load. I do have some trust in my ‘State’ at present.

    This contrasts sharply with Trump who takes the spotlight on every issue. Since no-one on earth knows everything about everything, it must hard to get behind him in a time of real crisis such as now? This brings this thought to my mind: from across the pond it looks like Trump IS the State but one man cannot be the state, surely?

    In Germany people are more naturally minded to act ‘properly’. (I lived there for 2 years – Frankfurt). Germany as socialist (small s) and in a positive way. I very much approve of how Germany runs itself and I feel it has struck a very good balance between state and individual.

    In the UK we have more of an individualistic culture and I don’t think that’s working too well for us these days (and I don’t mean just the corona days).

    MaxDrei: I am completely 100% in agreement with you on that we must urgently think about the exit strategy and that to do that we must start testing so we can ‘release’ people to get back on with life and to slow up the corona economy wrecking ball. Frustratingly the UK might be slow to start that conversation because of Corbyn – that man will immediately run round to someone’s sick Granny for a photo-op and call Johnson a Granny killer if he so much as mentions the economy.

  41. MaxDrei March 31, 2020 6:19 am

    Angela, I can accept much of what you write about the UK, but you and I differ about the basic values of Conservative and Labour. Labour Party people worry about “society”, whereas until yesterday the Tory Party line (from its icon Thatcher) was that “There is no such thing as society, just individuals and families.”

    I’m a Brit in Germany and I worry about my family in England. There are five times as many ventilators and ICU’s in Germany than in the UK. The answer to the question, who gets on a ventilator and who does not, varies from country to country.

    Compare the newspapers in Germany and the UK. Except for The Guardian, all UK newspapers are owned by proprietors holed up in tax havens using their newspapers to advance their agenda, which includes destroying public broadcasting and privatizing the National Health service. Where do you go for reporting on COVID-19? Rupert Murdoch or the BBC? Try logging on to The Guardian website one day, for a change, to broaden your sources of information and opinion.

    I’m thankful I live these days in Germany, with its post-War Constitution in which Article 1 sets the tone, declaring that human dignity shall be inviolable. Germans (rightly) treasure their Constitution as much as Americans (rightly) do theirs.