At the beginning of the coronavirus pandemic, we were told that we were all in this together. From Cape Town to California, leaders preached the virtue of solidarity.
Now the United States has opened vaccine eligibility to all adults, while the rest of the world lags months — and even years — behind. Rich countries are vaccinating their people 25 times faster than poorer nations.
Why are COVID-19 vaccines scarce? One critical reason is secrecy. Pharmaceutical corporations fiercely guard their COVID-19 vaccine recipes as trade secrets — despite receiving billions in taxpayer funding to come up with those recipes.
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Consider Moderna. The company, which first received federal funding when it had just three employees, worked hand-in-hand with the National Institutes of Health to develop “its” mRNA vaccine. The NIH-Moderna technology holds enormous potential: Because mRNA vaccines are produced synthetically instead of using living cells, production facilities can be faster, easier, and cheaper to scale up. The mRNA vaccines also can be easily adapted against new variants, and refrigerated for at least a month.
Yet Moderna has scaled up manufacturing relatively slowly, partnering with Lonza, a Swiss manufacturer, but otherwise protecting the secret vaccine recipe from competitors. Even in the face of an epochal public health crisis, Moderna has focused on selling vaccines to the world’s richest countries. It has declined to share vaccine recipes more broadly, even as infections skyrocket and death counts accelerate in Brazil, India, and other countries.
A better way is possible.
President Biden has two existing but as-yet unused legal tools that could bring Moderna to the negotiating table and help end the pandemic. Biden can leverage both tools to demand that Moderna share its trade secrets with the US government and with vaccine manufacturers around the world, through the World Health Organization.
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First, the US government owns a foundational coronavirus vaccine patent which recently exited the US Patent and Trademark Office after years of examination. The patent arose from groundbreaking coronavirus research that the NIH and academic partners presciently undertook years ago, long before SARS-CoV-2 and COVID-19 emerged. Moderna, like most big COVID-19 vaccine makers, now relies on the government’s patented technology in every dose of COVID-19 vaccine it makes and sells. But unlike some companies, which have paid the US government undisclosed sums to license the technology, Moderna has so far refused. As a result, the US government has a legal right to sue Moderna for patent infringement.
Based on an analysis that one of us just published, the government could demand over a billion dollars in compensation based on Moderna’s 2021 US sales projections alone — a significant cut of Moderna’s profits. Moderna’s sales in 2022 and beyond will likely be at risk for additional patent infringement liability, providing the US government additional leverage to coax Moderna.
The second tool is the Defense Production Act. The DPA empowers the US government to require private companies to share information — so long as it is in the national defense. The US government could, for example, require Moderna to accept technology-sharing contracts under which the company shares its secrets to expand vaccine manufacturing and defend Americans from the risk of new variants. While Pfizer and Johnson & Johnson could also be compelled under the DPA, even without the NIH’s patent, the patent is particularly powerful leverage over Moderna.
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Of course, Biden need not resort to suing Moderna, or compelling it to transfer information. Instead, he can leverage these tools to work out a deal under which Moderna agrees to share technology. And while sharing trade secrets (and other intellectual property) is an essential problem that must be solved to achieve global scale-up of vaccines, it is not the only problem in need of government intervention. Major public investments in repurposing manufacturing capacity and sourcing raw materials are also needed to vaccinate the world.
Biden ran on the promise of ending the pandemic but has yet to release a plan for global vaccine access. He can help the world produce billions of more vaccine doses this year. The alternative is an unconscionable loss of life. Nobody should have a monopoly over the knowledge needed to end a pandemic. This is no time for secrets.
Christopher Morten is a registered patent attorney and deputy director of the Technology Law and Policy Clinic at New York University School of Law. Christian Antonio Urrutia is an AIDS activist and cofounder of PrEP4All. Zain Rizvi is a law and policy researcher at Public Citizen.
