Efforts to Villainize Biotech, Pharma over COVID-19 are Political Theater and Opportunism

By Gene Quinn
April 7, 2020

“Everything—all energy—must be focused on drugs, cures, vaccines and/or treatments for COVID-19. Calls for compulsory licensing of rights that do not exist and can’t possibly exist for years does not further the critical objective.  They are pure political theater and opportunism.”

a politician speaks to the public with a set of masksSeveral weeks ago we published an article about how innovators are rushing to solve the coronavirus pandemic while conversations are simultaneously underway to strip proprietary protections from anyone who might actually succeed. The issue of compulsory licensing, whereby owners of proprietary rights are forced to give up those rights, is already being earnestly discussed all over the world, including in the United States.

The good news since our previous report is that the pace of innovation and the global race to address the COVID-19 pandemic have only accelerated. Dozens of leading U.S. research universities are doing widespread research directed to drugs, diagnostics, ventilators, and personal protective equipment capable of addressing the immediate pandemic and its next wave. These universities are being deluged with requests from Big Tech and life sciences companies to collaborate, producing a never before seen atmosphere of cooperation. This massive outpouring of innovation and product development is going around the clock because COVID-19 labs and manufacturing are allowed to operate during the lockdown. These are all topics we will discuss next Tuesday, April 14, during a special free webinar presentation.

The bad news since our previous report is that the pace of calls for compulsory licensing have only increased. There is a belief among some who view pharmaceutical and biotech companies and their executives as “crooks” that if these companies can engage in responsible corporate citizenship today they should be able to do that indefinitely into the future. So as Gilead donates its experimental coronavirus drug Remdesivir, and Teva Pharmaceutical Industries, Bayer and Amneal Pharmaceutials are donating hydroxychloroquine sulfate tablets, and Regeneron is donating COVID-19 test kits, they and the many other corporate good Samaritans are being thanked by some people saying that if they can give things away now why can’t they give things away, period.

[[Advertisement]]

No: “thank you for being a responsible corporate citizen and realizing we are all in this together!” Those who are convinced biotech and pharmaceutical companies are a bunch of crooks seem vindicated in their belief because, after all, if those businesses can be giving things away during a crisis that is proof they should have been giving things away all along. And yet further proof that they should be giving things away in the future. Economics be damned!

Obviously, businesses giving products away is not a feasible long-term economic strategy despite how it encourages those who wish life could be so easy. Of course, when the world is ablaze it is reasonable to presume that corporations should be expected to step up to the challenges of our collective new reality, which means everyone needs to chip in where they can and do what they can. As individuals we can stay home—a simple enough task, but something.

The truth is the biotech and pharmaceutical industry has stepped up in a very big way and is mobilizing its considerable resources in an effort to respond to this global crisis. Indeed, the entire industry is focused on advancing research and seeking a vaccine, a treatment, better protective gear, whatever is in their respective wheelhouse. While there is no doubt that the COVID-19 pandemic is a national and global tragedy, by all signs it seems it will also be a remarkable success when the final story is told. Innovators on all levels are coming together, patent rights be damned—at least for the moment; academics getting credit in their publish or perish world just doesn’t matter. Innovators of all stripes—scientists, engineers, researchers, and academics–are working together. There will be time later to sort out who did what, who owns what, who deserves what recognition, but right now it is simply all hands on deck.

Of course, calls for compulsory licensing from politicians who are just itching to do the wrong thing is a very big and unnecessary distraction. An unforced error worthy of placement in the pantheon of unforced errors.

If the objective is to beat this virus as fast as possible it simply isn’t helpful to talk about the compulsory licensing of drugs that don’t yet exist and the patents that can’t possibly be issued by the United States Patent and Trademark Office for at least the next two to three years. The COVID-19 crisis will be long since over by the time the first patent issues relating to anything specifically related to COVID-19. Yet somehow it is viewed as productive to demand compulsory licensing of vaccines, treatments and cures for COVID-19 that do not exist?

Why would you tell people that their drug, cure or treatment will be expropriated the moment it works? Is that in any way calculated toward achieving a vaccine faster? Will the threat of immediate expropriation lead scientists and researchers to discover treatments and cures more quickly? No, of course not. So, why then are politicians talking about compulsory licenses at a time like this? All they are doing is wasting time and oxygen, and being counterproductive.

Everything—all energy—must be focused on drugs, cures, vaccines and/or treatments for COVID-19. Calls for compulsory licensing of rights that do not exist and can’t possibly exist for years does not further the critical objective.  They are pure political theater and opportunism.

At a time when the biotech and pharmaceutical industry is mobilizing its resources, there is an effort to villainize it.  Newsflash to those who view biotech and pharma as a bunch of crooks—the solution to this global pandemic will be delivered by those biotech and pharma crooks.

As we watch the biotech industry and the pharmaceutical industry work with leading research universities, mobilizing considerable resources and donating drugs, it is shameful for a bunch of political hacks to actively seek to disincentivize, belittle and villainize their efforts. The demonization of those who are working to solve the COVID-19 pandemic in the name of scoring political points is duplicitous, subversive and treacherous.

Now is not the time for political grandstanding. Now is the time for solutions.

 

Photo courtesy of DepositPhotos
ID: 74646323
Author nuvolanevicata

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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 11 Comments comments. Join the discussion.

  1. Model 101 April 7, 2020 3:15 pm

    Gene…as always…you tell it like it is.

    The cost of a drug that is not available is infinite. As a guy who’s beloved wife needs drugs to survive I say to hell with those who villainize drug companies. I would kiss every drug company CEO if I could.

  2. TFCFM April 8, 2020 11:46 am

    The bad news since our previous report is that the pace of calls for compulsory licensing have only increased.

    Increased or not, discussions of “compulsory licensing” in the US remain in the same realm as flying saucers and monsters alleged to inhabit Scottish lakes.

    Compulsory licensing of medical innovations has never happened in the US, nor is it likely to happen anytime soon. With that said, injunctive relief may well not be awarded in (un)suitable infringement actions (e.g., “I’ve invented The Cure For Cancer and want the court to enforce my arbitrary decision to refuse to let others practice it” and similarly imaginary exercises).

    The US never has required compulsory licensing, and for all intents and purposes never will.

  3. Brad Olson April 8, 2020 12:00 pm

    Gene: Very well said. There is no better way to destroy innovation and the necessary seed investment by others than to remove the incentive to recoup capital and make a profit. Samuel Langhorne Clemons saw that back in the late 1800’s: “A country without a patent office and good patent laws was just a crab, and couldn’t travel any way but sideways or backwards.
    – A Connecticut Yankee in King Arthur’s Court.'”

  4. Gene Quinn April 8, 2020 12:58 pm

    Model 101 @1…

    I agree completely, and will have to start phrasing it that way. The value of a drug, vaccine, cure, treatment, medical device that doesn’t exist today that would help a loved one is infinite. Unfortunately, basic economics, simple math and history elude those who seek to dismantle the patent system. It is as if they think billions of dollars will be spent on innovation regardless. Foolish.

    -Gene

  5. Gene Quinn April 8, 2020 1:01 pm

    TFCFM @2…

    Don’t be so sure. We fight the compulsory licensing battle all the time with respect to university technologies, and we know what happens there because before Bayh-Dole nothing was commercialized. The risk here is that as the pandemic continues calls will become too great and politicians who are always want to grandstand will do the wrong thing and make bad policy at precisely the wrong time that will have the exact opposite impact. Stay vigilant!

  6. Gene Quinn April 8, 2020 1:02 pm

    Brad @3…

    Thanks Brad. That Mark Twain quote is great. And the real Mark Twain (i.e., Samuel Clemens) was an inventor, so he well understood the patent system.

  7. BP April 8, 2020 5:10 pm

    Great points. As to “These universities are being deluged with requests from Big Tech and life sciences companies to collaborate, producing a never before seen atmosphere of cooperation” is that “Big Tech” really Big Data/Big Advertising? Growing up, technology was what put someone on the moon or mitigated/cured disease.

    We really need to get back to the truth as to what are technology and innovation. Technology is not a new ad algorithm based on privacy misappropriation/misuse. Innovation is not arbitrage to disenfranchise skilled, frontline doctors, nurses, and the like (and soon enough lawyers).

    Money/rewards should stem from technology and innovation – not be gathered through today’s distorted notion of what are “tech” and “innovation”.

    Think of what brought us Alice, “financial engineering”. While I have upmost respect for Dr. Fischer Black’s work in economics/finance, in that realm, it’s not going to help humans reach Mars or cure a disease.

  8. Pro Say April 8, 2020 10:49 pm

    One has only to look in their own medicine cabinet to understand and appreciate the (past and currently) patented, life-saving medicines.

    Which of your medicines will you give up?

    Which one (or more) of them would you die without . . . if it or them didn’t exist?

    How many relatives of those clamoring for supposed no-patent cures would have died were it not for the antibiotics, heart, circulatory, cancer, and other medicines relied on today by them . . . as well as by untold millions of Americans?

    How many of their siblings, parents, grandparents, children, other family members and friends?

    How many days, weeks, and months would we all be spending visiting our loved one’s graves . . . crying over their ashes . . . flipping through their pictures . . . recalling found memories . . . because the medicine which could have saved or cured them . . . was never invented?

  9. Paul Cole April 9, 2020 4:22 am

    In the UK there was compulsory licensing for pharmaceuticals under the Patents Act, 1949 which continued until the 1977 Act. I was involved in proceedings for the compulsory licensing of two very well-known pharmaceuticals (shows how long ago) which was an education in the economics of the pharmaceutical industry. When you consider the risk and cost of introducing a new pharmaceutical and the difficulty of the research involved, the expense of new drugs/vaccines etc is completely understandable.

    Is there a solution? I would suggest a 75-year patent term for new pharmaceutical and similar inventions. Not only would the research and initial marketing costs be amortized over a longer period, but the originator remaining in control of the product would have a greater incentive to monitor effectiveness/side effects in the long term which could only benefit the public. If you go to the local pharmacist for tablets for blood pressure, you get a different packet from a different generic supplier with different tablets inside every few months which is not reassuring.

  10. Anon April 9, 2020 10:57 am

    It may be worth noting that even in times of pandemic, agendas will be advanced.

    While noble in its Ends (as witness its opening line proclamation of – emphasis added):

    Immediate action is required to halt the COVID-19 Pandemic and treat those it has affected. It is a practical and moral imperative that every tool we have at our disposal be applied to develop and deploy technologies on a massive scale without impediment.

    See: https://opencovidpledge.org/

    Digging just a little to see is helping to run this effort reveals:
    Steering Committee Members

    Legal

    Mark Lemley, JD
    William H. Neukom Professor of Law at Stanford Law School and the Director of the Stanford Law School Program in Law, Science & Technology.

    Diane M. Peters, JD
    General Counsel, Creative Commons.

    Jorge L. Contreras, JD
    Presidential Scholar and Professor, University of Utah S.J. Quinney College of Law; Adjunct Professor, Dept. of Human Genetics, University of Utah School of Medicine, Research Fellow, Program on Information Justice and Intellectual Property, American University Washington College of Law

    Mark Radcliffe, JD
    Partner, DLA Piper

    Now, at least two of these members are KNOWN to be anti-patent, and I suspect that Miss Peters of Creative Commons would certainly lean that way as well.

    However, since this pandemic is so serious, I have to wonder why only IP would be in the focus of this particular effort. Taking the bold proclamation with the words that I have emphasized, ‘every’ and ‘without impediment’ should just as well be asserted to something FAR MORE of an impediment: profit motive.

    I would love to see each signatory and corporation that joins the movement (for a noble ends) actually put their own profit motives aside (entirely, and NOT just in regards to those views that already align with anti-patent views).

  11. Model 101 April 10, 2020 6:50 pm

    Gene…thank you for your comments. I cannot take credit for the infinite cost valuation. Bob Armitage said that at the Senate hearings on 101. I will take credit for trying to kiss Judge Paul Michel and Sherry Knowles at those hearings.. They said what needed to be said loud and clear.

    FYI… nobody was kissed. I’m too ugly.. They both just gave me funny looks.

Post a Comment

Respectfully add to the discussion.

Name *
Email *
Website