A tussle over the ownership of pharmaceutical manufacturer Moderna’s mRNA COVID-19 vaccine remains at a standoff. The National Institutes of Health (NIH), a US government body, says its researchers contributed substantially to the development of the vaccine, giving NIH intellectual property (IP) rights over it. Moderna disagrees. IP disputes between governments and their private-entity collaborators climb to especially high stakes when they are about medicines. When treatments for HIV/AIDS were developed in the late 1990s, people debated when and how patents could be circumvented to ensure wider access in places where the treatments were most needed. The debate has resurfaced most recently in the context of vaccines for Ebola and then COVID-19.
Parties on either side of the debate have suggested changes to how drug patents should be handled. One argument seeks to capitalise on the internal logic of IP to ensure greater and wider access to the proceeds of intellectual endeavour for solving the most pressing global health crises.
A foundational principle of IP is that the creator whose time, effort, intellectual rigour and material resources went into the development of a product should benefit primarily, and in some instances exclusively, from it. This protects any desire of the creator to extract commercial gain from the sale or licensing of their product or process. This principle has long been upheld as essential to the logic of incentivising innovation and subsequent commercial endeavour. But this premise has been called into question by innovations that have far-reaching impact and use but are not premised on the need or desire to commercialise them and extract exclusive profit from their use. The internet is perhaps the greatest such innovation in modern history. The research and development of this project, like others of its kind, have to a great extent been supported by public funding, whether directly or indirectly.
