Moderna’s Intellectual Property

by
Robert Waldmann
My articles My siteAbout meMy booksMy videos
Follow on:Twitter

Robert Waldmann has some questions and thoughts! Hi Robert, AB upgraded the way we post now. (run75441). I am going to ask someone to engage your post who has far greater knowledge than I or anyone else has. He is a Professor of Biochemistry & Molecular Biology and participated in the Moderna clinical trials.

I am fairly sure that I am going to regret this post. Also it will be extremely long with almost exactly zero overlap with any field in which I have any expertise. I think it will all be after the jump.

I am commenting partly on this article in the Washington Post. Also continuing discussions with Jeet Heer and Dean Baker with no character limit (at alll – reader beware).

The topics are

1. What has Moderna done and what should Moderna do about it’s intellectual property rights enforcement of which may be helping Sars Cov2 vs humanity ?
2. What should the US Federal Government do about Moderna’s intellectual property rights enforcement of which may be helping Sars Cov2 vs humanity ?
3. Why are people talking specifically about Moderna and not about BioNTeach, Pfizer, Oxford, Astra Zeneca, Johnson & Johnson, the Gamalayan Institute, Sinovac, CanSino, Nova Vax, The University of Pennsylvania and the NIAID ?
4. Is the answer to three a sign of a bad mistake which has, in the past, markedly delayed medical research
5. How is intellectual Property different from, say, real estate ?
6. Is this a reason to treat intellectual property with more or with less respect (or both in different ways ).
7. are property rights human rights or civil rights ?
8. Will this post have a beginning, a middle, and, best of all, an end ?

1. There is considerable discussion of enforcement of Moderna’s Covid related patent or patents. On the other hand, there is not currently, in fact, any enforcement of Moderna’s Covid related patent or patents “while the pandemic continues, Moderna will not enforce our COVID-19 related patents against those making vaccines intended to combat the pandemic.” As far as I know, all the other vaccine inventors have not issued similar statements. Moderna adds “Further, to eliminate any perceived IP barriers to vaccine development during the pandemic period, upon request we are also willing to license our intellectual property for COVID-19 vaccines to others for the post pandemic period. ” meaning they want money (an amount for complete unconditional licenses for all Moderna intellectual propery which would be trivial compared to say the US Federal Budget). In the article I read “What’s missing is the vaccine formula. Moderna refuses to share its recipe, citing intellectual property, so Afrigen has used publicly available information and help from outside advisers to begin making the vaccine.” Note this “recipe” is a trade secret — others can use it (see above) but can’t force any Moderna employee to say what it is.
2. The US Federal Government might or might not be able to confiscate Moderna’s intellectual property (my guess is yes only if 5 supreme court justices employed by the US Government join the effort — and pigs fly). This might or might not involve subpoenas and the threat to deprive Moderna employees of their freedom if they don’t say what they know. The US Federal Government can certainly afford to make Moderna an offer it won’t refuse to buy all that intellectual property. Is this about health or money ?
3. I think Afrigen might be trying to make Moderna’s vaccine, because it is currently the vaccine with the best performance (marginally better than the Pfizer BioNTech vaccine) but I am sure that people are focused on Moderna because it received a grant from the US Federal Government under the “warp speed” initiative. Pfizer refused to accept such a grant. Their choice may have seemed odd at the time, but it sure makes a lot of sense right now. The argument is, in fact, that the position Moderna is a private firm which should be left alone has not been consistently held and applied by anyone, and people who are suddently going full laissez Faire, property rights, small government Hayek/Nozick are inconsistent.
4. yes*
5. Intellectual property is very clearly established by statute law (specifically authorized in the Constitution) and not common law. It is clearly a historical construct, not a natural aspect of knowledge. It is undoubtably artificial. No one has argued that to respect God’s will, one must enforce patents for 17 years. John Locke did say that to respect God’s will, one had to respect private property — “

” God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience. The earth, and all that is therein, is given to men for the support and comfort of their being …. every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property”

John Locke 1688 Notably, this does not apply to knowledge which I can use without depriving you of it (technology is non-rival). You keep all of it, and I have all of it, and Locke has nothing to say. It’s not “joined” to anything.

I personally do not care at all. I do not agree with John Locke that property rights are natural rights. I think that they are all artificial constructs, human inventions not involving any God at all, which are very useful (the invention of property rivalling the invention of fire and the wheel) but are definitely artificial. Many other people who disagree with Locke care some. Especially, they really like to point out that people who present themselves as followers of Locke do not, in fact, follow his logic (last year, the Federal government “mixed” some public money with the labor of Moderna employees).

I say intellectual property is unlike real estate for three reasons. First many of us own some real estate but don’t own any patents (so we have an interest in arguing that our right to, say, our house, is a natural human right). Second laws regarding intellectual property are newer and were written down from the start (like Continental European laws and unlike English Common Law). Third, sometimes it is very hard to seize someone’s intellectual property. Godwin’s cousin forbids me to mention water boarding, so I won’t.

6) My view is that, sometimes, forcing someone to surrender intellectual property is more extreme than just taking physical property. Some of it is inside our skulls and nowhere else. Extracting that valuable property is rather more invasive than, say, taking the clothes someone is wearing. I am quite sure that a very large share of valuable knowledge is tacit and can’t be obtained without depriving the people who are its only containers of their liberty.

7) I think property rights are civil rights not human rights. I believe we have a right to eat (if a society is able to prevent starvation then it must). I do not think any of us has a natural, human, not artificial right to anything more than anyone else. Again, I think the day private property was invented was a very good day and that the creation of property rights was a very good deed. But I think it was a human deed and not an aspect of objective moral truth separate from our beliefs and actions.

8) don’t get your hopes up. I have discussed the issues and made it clear why I have this particular bee in this particular bonnet. However my answer 4 was a bit brief and included an asterix.

* there are, on planet earth, two roughly equally huge gigantic flows of money related to biomedical research: the NIH budget and the combined R&D budgets of pharmaceutical firms. These streams have been “mixed” (JL 1688) but this mixing is a very delicate alchemy requiring the prolonged care and attention of highly paid lawyers. Often attempts to combine NIH and private R&D efforts are not successful as the lawyers say no.

One extremely successful joint effort was the development of effective treatments for AIDS. The first step (or at least a very early step) was the NIH based trials which showed that Burroughs-Welcome owned AZT helped people infected with HIV 1. Notably Burroughs-Welcome had purchased that intellectual property from another firm and explored the usefulness of AZT in treating leukemia (it doesn’t work). Notably, Burroughs-Welcome decided to charge the Medicaid maximum of $10,000 for a year’s course of therapy with the molecule they had bought from another firm for a purpose demonstrated by US Federal Government employees. This shows the ruthlessness of the non-profit motive (Burroughs-Welcome was a non-profit corporation owned by the Welcome Trust).

Those US Federal Government employees were mad as hell. As a result, there was, for a while, a rule that if NIH employees were involved in the development of something, then the NIH was involved in deciding its price. This rule was applied one (1) time.

The rule lead the legal departments of pharmaceutical companies to forbid collaboration with the NIH. The rule created huge problems for NIH reasearchers and for pharmaceutical company employed researchers. The rule has been repealed.

My conclusion is that if we want to mix public and private research efforts (and we really should want that) we should not make to big a fuss about the fact that such mixing has occurred.

So I think Moderna should be treated just like Pfizer and Pfizer should gain nothing by turning down public money.