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  • Writer's pictureDoug Neckers

Patents and Vaccines

What’s a patent?

How do you go about getting one?

Does having a patent mean you are automatically guaranteed to make money from your invention -- and how long does a patent last?

Many of us have wondered about these questions, and they are especially newsworthy now that new vaccines against COVID-19 are being used, and new ones are being developed and discovered.

Who owns these vaccines? And can they be patented?

The answer to the patent question is -- yes. Vaccines are legally seen as ‘intellectual property,” creations of the mind invented by scientists, developed into chemical compositions and then into a product by one or more companies – really, by scientists employed by those companies.

When those intellectual creations become reality, we think of them as “inventions” -- and inventions lead to products that can be packaged, sold – and patented. Abraham Lincoln, the only U.S. president ever awarded a patent, said “patents add the fuel of interest to the fire of genius.”

But who owns all those millions of doses of Pfizer, Moderna, Johnson & Johnson vaccines being injected into hundreds of millions of arms? Those companies aren’t doing this for free -- they’re for-profit entities.

So although citizens aren’t paying directly for the vaccines, as they or their health care providers normally would, the government has recognized this is a national emergency, and is paying Pfizer, for example, $19.50 per dose.

That’s because Pfizer owns the formula for that vaccine, and has applied for patents, that once granted, will give it exclusive rights to its invention for 20 years; Modena and Johnson & Johnson are surely patenting theirs as well.

By the way, patenting isn’t cheap. According to the U.S. Patent and Trademark Office, it takes an average of a little over two years to be granted a patent, and it costs the applicant an average of $12,000 to $14,000 in fees, legal and other costs -- and it can be a lot more.

I know; my name is on about 40 patents, as inventor or co-inventor, and while in some cases patents can be considerably cheaper, in others they are much more expensive, especially when patenting in other countries is involved.

So what is a patent, anyway? Think of it as a contract between a country and an inventor, in which the inventor can sell and make a profit, and the country benefits when new products are sold to their citizens. Patents can involve doing or making things, or new variations on them, or even new genetically engineered plants and other organisms.

For the life of that patent, the invention belongs only to the inventor. It cannot be sold by anyone else in any country where the inventor has a patent.

Every country has patent laws, though they differ from nation to nation. Our patent law is based on that in England, our mother country.

In the United States, where we have had a patent office since 1790, patents can only be awarded to a human being, not a corporation. However, patents can be assigned by the inventor to the company for which he or she works.

Indeed, the intellectual property of most inventors belongs to the organization that pays the inventor’s salary. In many cases employees are required to assign any patents they win to the company.

But what makes this all very complicated is the international arena. Often, the poor inventor has to apply for a patent in every country where the invention might be sold! In 1970, most nations signed a Patent Cooperation Treaty, which tried to establish uniform procedures for patent applications. But the inventor still needs to file in those countries. Fifteen years ago, I was able to file one application that covered most of the countries in the European Union, but I, or the patent attorneys I hired, had to apply separately in some countries too.

All told this cost more than $35,000.

Patents are worth what the inventions described can be sold for-- and that can lead to courtroom patent wars. For example, civil patent fights can go on for decades and cost billions, as the one between Polaroid and Kodak over who invented film for the instant camera did. (Polaroid won.)

I wouldn’t be surprised if another huge patent fight breaks out over some of the COVID-19 vaccines. Poorer countries are already arguing that rights to these inventions should be free world-wide, so their citizens can be protected too. The Pfizer vaccine, for example, was invented by a German company which partners with Pfizer. The Johnson & Johnson vaccine was invented collaboratively with a

Belgian company.

Sorting that out will be a job. With megabillions at stake, the vaccine patent wars are, I predict, just beginning. No invention stands on its own for long, and new patents can be applied for as refinements are discovered.

You can bet that each of these companies is feverishly working to bolster their

intellectual property positions with new inventions. One thing’s for sure: Patent lawyers aren’t going to run out of work. The pandemic may be receding -- but the lawsuits over who owns what haven’t even begun.

Douglas Neckers is an organic chemist, distinguished research professor emeritus and the founder of the Center for Photochemical Sciences

Photo by Cytonn Photography on Unsplash

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