Recent news that President Joe Biden backed a plan to waive patent protections of vaccine technology reminded us of the discussions about patenting the polio vaccine developed by Jonas Salk and his team. This blog post and this article both clarify Dr. Salk’s stance on patenting the polio vaccine back in the 1950s. From the blog post:
“One question often asked is why did [Jonas Salk], as an inventor of the vaccine, not patent his invention? In a famous 1955 interview of Jonas Salk, Edward Murrow asked him who owned the patent. Jonas Salk’s reply: “Well, the people, I would say. There is no patent. Could you patent the sun?””Jonas Salk , inventor of the polio vaccine, “Could You Patent The Sun?”, Intellectual Property Expert Group Blog Online
From the article:
“Whether a vaccine should be viewed as a naturally occurring substance, rather than a product of human engineering, may depend on the details of the individual inoculation. In 1796, Edward Jenner immunized an 8-year-old boy against smallpox by injecting him with pus from a milk maid who had been exposed to cowpox, a related disease. (The word vaccine comes from vaccinia, the Latin name for cowpox.) While ingenious, moving pus from one person to another would not entitle Jenner to a patent in modern America. Few modern vaccines are that simple, though. Some still contain live or dead cells from the pathogen itself, but others contain genetically modified versions of the virus or bacteria. Some rely on one or more proteins from the pathogen, or a part of a protein that’s sufficient to trigger an immune response. The flu vaccine, which has to be made anew every year, involves months of work by highly trained scientists working in state-of-the-art laboratories. It’s a stretch to describe modern vaccines as naturally occurring, even if parts of them are.Jonas Salk: Good at Virology, Bad at Economics, SLATE MAGAZINE ONLINE
Although the U.S. government has issued thousands of patents related to vaccines, American jurisprudence is still in a state of confusion on this issue. The Patent Act of 1952, which established the current structure of patent law, did not recognize a difference between inventions and discoveries. When that distinction came from the Supreme Court in 1980, the court made clear that “products of nature”—like the sun, as Salk might say—are not patentable. Isolating and purifying a product, however, may render it patentable under the right conditions.
Should the Supreme Court ever get around to clarifying the patentability of vaccines, it may consider revisiting the distinction between discovery and invention, because it misses the point of intellectual property law: to incentivize research that will benefit humanity. Even if a vaccine is a product of nature, discovering that product and making it useful is absolutely nothing like discovering the sun and putting it to work. (Most living creatures have managed that trick on a daily basis for billions of years.) Since Jenner, few microbiologists have stumbled upon effective vaccines. Without the promise of exclusive marketing rights for some period, no profit-minded private entity would undertake the necessary research.”
As you can see, there are two (or more) sides to the argument on liberating the patent on vaccines. On the one hand, companies making the vaccine want a return on their investment. On the other, public money went into that investment, so some or all of the vaccines’ technologies may belong to the public. And then another argument is the emergency that the pandemic presents, much like the emergency of the polio epidemics occurring in the first half of the 1900s. We should expect a very broad discussion on this, and maybe even some litigation and/or legislation.