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The Emptiness of the Patent Waiver

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The Venetian Patent Statute, issued by the Senate of Venice in 1474, and one of the earliest statutory patent systems in the world.

We tend to criticize Jacobin a lot in these parts, but this Alexander Zaitchik piece on the emptiness of Moderna’s decision to waive its vaccine patent is pretty good:

In high technology fields like biomedicine, modern patent applications rarely contain the knowledge required to manufacture the invention. This is by political design, the result of an industry push to change the rules under an obliging Reagan administration and that era’s Democratic Congress. Four decades later, the patent game is one of deterring reproduction, even and especially by those most “skilled in the art.” Key aspects of an invention and its practice are systematically shielded, often indefinitely, by a layered intellectual property barricade involving patents, copyright, and “undisclosed information,” a broad, opaque and relatively new category of intellectual property (IP) that contains three subcategories vital to making things like vaccines: know-how, trade secrets, and data.

Writing a book on national security and intellectual property led to some interesting places, including an appreciation of the overriding focus on data (continuously a point of tension between the Pentagon and defense firms), but also an understanding of how poorly the existing patent system fit the modern process of high technology production. Respect for the patent does not prevent anyone from producing the vaccine; rather, the vast accumulation of data and know how make copying impossible. There are some ready parallels in the military world, where it can be difficult to explain that the fact that China stole some early planning documents for the F-35 does not mean that the Chinese can counter the fighter, much less easily reproduce it. Anyway, there’s no easy solution to this; vaccine technology is incredibly complex and there are only a few firms around the world that can manage the entire process, so it’s not as if patents are doing that much in the first place, but as the article suggests we should hesitate before lauding the big biotech firms for giving up their patent rights.

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