Andrew Masson is an IPilogue Writer and 1L at Osgoode Hall Law School.
Two major pieces of patent protection news with global long-lasting significance dropped in early March for drastically different reasons. First, Moderna, a producer of COVID-19 vaccines, announced that it will never enforce its COVID-19-related patents against 92 low- and middle-income countries. Second, Russia threatened to stop enforcing patent protections for companies based in countries it deems “unfriendly” to Russia. Although both cases limit patent protection, Moderna’s actions originate from the company whereas the action in Russia is a state removing a foreign company’s protections.
There are large potential profits but also considerable public health concerns for companies tackling a globally impactful disease like COVID-19. When statistics show that only 11 percent of the people in Africa were fully vaccinated as of February 2022, people understandably believe companies such as Moderna should prioritize public health over profits and, by association, IP protection. However, it is important to recognize that vaccine research and manufacturing are not free. It has been estimated that starting from scratch could cost up to $469 million USD for a single vaccine. Thus, there is a large incentive for companies to protect that investment.
To try and combat the issues with vaccinating people in poorer countries, the Gavi Covid-19 Vaccines Advance Market Commitment (“COVAX AMC”) was created. This program aims to increase vaccination rates in poorer countries and develop vaccine manufacturing pipelines in those areas. I think Moderna signing on with Gavi and opting not to enforce their patents in the 92 associated countries is a sacrifice on profits which addresses some larger global health concerns.
From a different direction, Russia as a state entity has threatened to stop enforcing IP rights for certain companies. Russia is facing extreme backlash from corporations regarding their actions in Ukraine and many companies are “pulling out” of the country. In response, Russia declared that they will be removing the patent protections for those from “unfriendly” countries (also see this alternative source). As this is a recent story, it is unclear how this will be done. The goal seems to be to allow places like McDonald’s to remain open and operate without the consent of the corporation and with the risks of patent infringement. As of now, it appears that Russia plans to nationalize the assets of firms that are leaving the country. Russia is a party to the Paris Convention for the Protection of Industrial Property, an international treaty that includes the protection of intellectual property in each country. However, Russia appears to be abandoning this commitment for the sake of state economic protection.
In the Future
Other than shaming the actions, I don’t feel like this is the place nor am I the person to talk about the societal and global impact the Russian invasion of Ukraine will have. However, I think practically speaking, the Russian state removing patent protection for certain companies will dramatically affect their future business relationships. As IP lawyer Josh Gerben put it, “[Putin] has forever changed the relationship that Russia will have with the world.” It is hard to imagine that many companies or other countries will want to pursue business in a country that may not protect their proprietary interests.
On the other hand, the actions of Moderna ought to increase the company’s public perception and practically help poorer nations. Moderna’s actions with Gavi may prove to be a vital step in global health initiatives; not only will it help provide poorer countries with much-needed vaccines, but it will also increase the global vaccine supply. In the future, vaccine manufacturing should more rapidly meet demand, and so, hopefully, the delay that many of us Canadians felt in getting vaccinated doesn’t happen again.