Former AUTM head cautions exercising ‘march-in’ rights on Covid-related patents

Confiscating taxpayer-funded invention rights would damage the innovation ecosystem that has generated breakthrough therapies and enabled scientists to work so quickly on Covid-19.

This is the conclusion of Fred Reinhart, a past president of AUTM (Association of University Technology Managers), a patent licensing group that tracks data

Reinhart, who has served in technology transfer at the University of Massachusetts, the New England Medical Center and the University of Michigan, believes that well-intentioned groups, like Doctors Without Borders, which are urging governments to seize the patents on any coronavirus therapies that benefited from taxpayer-funded research, are misguided.

A Current Crisis

“Confiscating patents would damage the innovation ecosystem that has generated breakthrough therapies and enabled scientists to work so quickly on Covid-19,” he writes in STAT, a leading health, medicine and life sciences news publication owned by Boston Globe Media.

Gilead Life Sciences has said that it will donate enough doses of its experimental antiviral Remdesivir to treat 140,000 seriously ill patients. Johnson & Johnson promises that if its vaccine proves effective, it will provide 1 billion doses at cost. Other leading life-science companies have stepped up and exceeded the Open Covid Pledge, which Facebook, Amazon, HPE, Microsft and IBM have been among the tech giants to join. (Canon and Toyota joined this week.) Those with such expansive patent portfolios could have some patents that are useful in the Covid fight.

Leading research universities, through an initiative led by Harvard, Stanford, and MIT as well as one led by the organization Reinhart had headed, AUTM, have promised to make patented inventions requiring less investment and risk freely available to researchers so they can be developed quickly.

Not Everyone Agrees

“These [government funded] technologies have netted universities billions,” writes Varoon Mathur, a technology fellow at the AI Now Institute at New York University and a coordinating committee fellow with Universities Allied for Essential Medicines. “However, universities also generally claim to have a mandate to public service. Many of them even claim that technologies developed within their labs should also be of benefit to the global community.

“It is an embarrassment in 2020 to see some universities sign on to a coalition like Bayh-Dole 40 that actively aims to undermine a safeguard that exists to serve the public good,” continues Mathur. “But it is even more shameful to construct safeguards and not use them when they should be used.”

Despite these actions to ensure that coronavirus treatments are widely available, says AUTM’s Reinhart, groups still want the government to seize patents outright or to exercise the “march-in” rights detailed in the Bayh-Dole Act of 1980. “To see why such action would backfire, consider how the drug development process currently works.”

The Bayh-Dole Act played a role in the creation of almost 300 new vaccines and drug therapies, including breakthrough treatments for human papillomavirus, hepatitis B, HIV, and Crohn’s disease.

“Lawmakers in Washington want to confiscate the patents on coronavirus treatments and vaccines — before biotech companies even finish developing them,” writes Adam Mossoff, in Reel Clear Policy.

Mossoff is a patent law expert at Antonin Scalia Law School, George Mason University, and a Senior Fellow at the Hudson Institute and member of the board of directors of the Center for Intellectual Property Understanding, .

Policy Priorities

There is no question that the global Covid-19 pandemic requires an unprecedented level of collaboration, cooperation and financial support. But if the goal is to achieve costly, time-sensitive solutions, exercising take-over rights or compulsory licensing may not be the most effective strategy.

Covid raises important questions about the need to collaborate more fully and put aside profits for the public good. But how that gets implemented and who benefits most is highly complex. There is much to be said on behalf of the collective power of smart, dedicated army of researchers charged with a seemingly insurmountable task, but seizing property is not the appropriate response for Covid or cancer.

The Covid crisis is shedding light on life science research, performance and patents — and how they are funded and used. This is a heated discussion that needs to take place and be understood by a range of audiences, including lawmakers and researchers. More aggressive and thoughtful innovation and IP policy is long overdue.

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