Patents are pragmatic public policy tools, used in different places and times to encourage the creation, disclosure, and diffusion of technologies. Positioned as both the gatekeeper and inspirer of technological change, patent law’s hyperstitional power commodifies chemical structures, computer codes, and genetic sequences. This positioning has also made patent law susceptible to a particular kind of rhetorical corporate capture. Patent law is both technically complex and necessarily dynamic in response to changing technology. Patent-holding firms shape the law by exploiting these dual features. Despite the fact that patents are ultimately supposed to benefit the public under whose authority they are granted, advocates have repeatedly criticized certain patents for actually harming the public, especially regarding public health.
The COVID-19 vaccine patents represent the latest front in this patent war. In the span of a few short years, simmering medicine-access patent issues once again made headlines. The debates over waiving international patent-protection guidelines contained in the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) echoed past debates from the AIDS crisis of the 1980s, 1990s, and before. These debates revealed the extent to which earlier questions about patents and public health remain unsettled. Meanwhile, industry power has so infiltrated the law that even the industry’s opponents often adopt its language. To patent-rights maximalists, nearly absolute patent rights are essential for pharmaceutical innovation, and any limit on those rights will threaten future health outcomes. Interrogating the implicit acceptance of this bedrock truth is the first step of assessing the actual health of the patent system.
From its roots, patent law was never a product of pure principle but was pragmatically adapted to accomplish changing government aims. As granted patent privileges became claimable patent rights, those claiming them exploited this adaptability to shape the law in their own favor. Firms that had successfully entrenched themselves within the structures of national patent law then led the global charge to globally “harmonize” those laws, leading to conflict over access to medicines during the AIDS crisis and an eventual declaration that patent rights “should not prevent . . . measures to protect public health.” This did not prevent patent rights and public health from coming into conflict yet again during the COVID-19 pandemic. The discussion and debate over a proposed waiver of international patent protection requirements demonstrated how little rhetorical and legal progress has been made. Even the proponents of waiving patent protections often accept the premise that these COVID-19 patents are exceptional, which reinforces the notion that limits on patent rights are somehow out of the norm. But, considering the history and purpose of patents as pragmatic tools to accomplish state objectives, there is no reason to give ground to the argument that anything but unlimited patent rights threaten innovation and health outcomes. Instead, this rights-totalizing rhetoric works in tandem with both general corporate opacity and the law’s technical density to prevent interrogation of whether these patents truly promote innovation, or merely enable profiteering.
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