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The announcement that President Biden has backed a temporary but "narrow waiver" on COVID-19 vaccines seems like a win for all.

However, if a pharmaceutical company is forced to waive its specific patent on their COVID-19 vaccine, are they also forced to waive any (dependent?) patents they hold that are not specific to the creation of a COVID-19 vaccine but are crucial to the manufacture process of a COVID-19 vaccine (for example work done generally on Coronaviruses which are wide ranging), without which, a third party can't create a COVID-19 vaccine unless they get permission or a license for these dependent patented processes?

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  • Just as an aside, it really isn't a win for all. Gearing up to make a vaccine is not at all easy. Especially mRNA vaccines require specialized equipment that might take years to build. Raw materials are in short supply. A patent waiver is really just a political ploy to make it seem that something is being done when it really isn't.
    – Eric S
    May 22 at 14:37
  • I said it "seems" like a win. And the reason I asked the question was because my suspicions are that this is not as straightforward as it appears to be. I'm well aware of the specialised equipment and resources as well, but didn't touch on that because I was focusing on the patent question to try and stay on-topic.
    – Kev
    May 22 at 14:52
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I'm sure the people negotiating the scope of any waiver have figured out that might be many levels of patents. By the way, if companies were waiving their own patents "voluntarily" under pressure from the U.S, no TRIPS or other waivers would be needed.

First a small background - patents are territorial. No USPTO issued U.S. patent has any relevance to what happens in India and visa versa. Of course pharmaceutical companies tend to pursue the grant of patents in many countries. To make a vaccine in India would require suspension of Indian patent rights that might belong to a, possible U.S. based, vaccine developer.

As you say in the question, there is quite a bit of technology involved in producing vaccines. Some building block things are patented and others are trade secrets. Building block patents are held by multiple companies and there is some cross-licensing between them.

As of May 8th, I do not believe any patents have been issued for COVID vaccines themselves. Some COVID related patents have been issued for testing, etc. And there are certainly building block technology patents related to mRNA.

From a comment on the Patently-O blog

I have a Derwent alert set us that informs me every time a patent issues with “SARS” or “COVID” in the claims or title. So far, none of these grants concern a vaccine. The largest category so far are test technologies. The next largest concern algorithms that purport to predict something COVID-related (where the next outbreak is likely to emerge, how a given patient’s disease is likely to progress, etc). The smallest category so far is putative therapies (mostly second medical use claims for existing FDA-approved drugs, but also some novel herbal blends).

The claims directed to SARS-CoV2 vaccines are still being examined, but none have yet granted. Of course, as previously noted, all the vaccines approved in the U.S. are covered by one or more granted patents directed to the novel vaccine platforms.

What the WTO is discussing, and the president has endorsed, is a waiver of terms of an international treaty. The signatories of the TRIPS treaty have agreed to have national patent systems with certain minimum provisions. If a country unilaterally suspended enforcement of some patents in their country, other countries could impose tariffs or otherwise try to commercially punish that country in the sphere of international trade for violation of TRIPS. The waiver would presumably cover trade secrets as well as patent rights. What is taught by an issued patent is published for all to see in that patent but waiving trade secret rights does not automatically produce the trade secrets on a platter.

Theoretically the steps would be - (1) the signatories to TRIPS can agree to wave its terms that allow commercial retaliation among themselves for weakening patent and trade secret rights locally. There would be some defined scope in terms of the technology addressed and the time frame of the waiver.

(2) In a specific country, they could pass a law or use something like executive action to suspend specific IP rights that had been granted or might be granted by that country in the near future.

(3) Someone in that country could try to make a vaccination.

Without know-how transmitted by the organization that developed the vaccine they would have a very, very hard time doing so. The text and drawings of a patent are not a specific easy to follow recipe. The original companies involved might be incented, either financially or by political pressure, to provide this technology transfer. However, they will must likely say that the best use of that time and talent is further ramping up their own production capacity, and it is probably true.

Alternatively, a country might import vaccine from a third country that had patent rights suspended. Patents do not just confer the right to stop others from making, but also selling, importing and using the patented invention in the country who issued the patent. So one country could make it under a suspended patent right and many other countries could import from their due to their similar action suspending patents.

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