21 April 2021

The U.S. Patent System and Early Treatment for COVID-19

The law of innovation balances private returns on investment against benefits to the public. Increasing the profitability of intellectual property acts as an inducement to spend money on research and testing, but threatens to increase costs to the public both directly and in terms of reduced access.

During a pandemic such as that of COVID-19, aggressive patent assertion may be a threat to open competition, universal enjoyment of the highest attainable standard of health, and individual survival. Early outpatient treatment for COVID-19 is being denied in many parts of the world, as patients are turned away from hospitals and vaccination sites, treatments are not made available to all who need them, and field hospitals are erected during periods of apparently exponential and highly seasonal viral transmission.

Elderly and otherwise vulnerable people do not have comparable access to vaccines in poor and middle-income countries. SARS-CoV-2 mutations are becoming the more dominant strains. As these variants continue to become more transmissible, cities and provinces encounter shortages of drugs, hospital beds, personnel, and personal protective equipment. For these reasons, pandemic-related patent law is an issue which the European parliament, the African Union, and UN experts have addressed, calling for wider public access and reduced private profits.

This webinar focuses on how the US patent system can promote the public interest and global public health in the context of COVID-19. First, flexible doctrines governing injunctive remedies and apportionment of monetary relief provide outlets for federal judges to prevent gaps in the public health regime from being maintained or expanded. Remedial tailoring may calibrate incentives and allocate fairly the rewards of initial innovation and follow-on improvements.

Second, courts and patent examiners are empowered to deny patents on seemingly inevitable inventions via doctrines of obviousness, double patenting, and anticipation. The reverse doctrine of equivalents, which permits an inventor to prove non-infringement of a patent despite literal coverage by its claims where an invention performs a similar function in a substantially different way, also promises to reduce the incentive to build upon existing knowledge and to radically improve prevailing treatment modalities.

Particularly in an era in which it is clear that artificial intelligence can identify potential early treatments, the public domain in COVID-19 technologies should be vast.

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