Will removing patent protection speed up access to COVID 19 vaccinations across the globe?  This is a question that has been bandied about in recent months, usually with a pro-patent or anti-patent bias.  The Biden Administration has begun looking into this issue to determine if temporarily removing intellectual property protection can increase worldwide production of COVID 19 vaccines.[1]  Additionally, the World Health Organization (WHO) has requested more cooperation and technology sharing between vaccine producing companies, and countries including India and South Africa have called for a halt to patent enforcement of COVID 19 vaccine technology.[2]    
 
Increasing access to the COVID 19 vaccines has both altruistic and self-serving aspects.  Altruistically, increasing supplies and access to COVID 19 vaccines will allow more people to be protected and will save lives, especially in less affluent countries without access to current vaccine stocks.  From a self-serving perspective, accelerating the global vaccination effort will hopefully reduce variants and overall transmission of the virus, resulting in a faster return to normalcy for the global economy.  
 
            Pro-Patent v. Anti-Patent     
 
The argument on the pro-patent side is that protection is necessary to spark future innovation. More specifically, without the promise of patent protection innovative companies cease to invest in the costly research and development necessary to produce groundbreaking medical therapies.  These arguments, while valid, ignore the reality that compulsory licenses are not uncommon, and monetary relief can compensate patent holders.
 
The anti-patent side argues that publicly funded government expenditures have already assisted many of the innovator companies, and the global need far exceeds any financial pay back innovator companies deserve.  The argument continues that there is a moral and ethical imperative to expand access to COVID 19 vaccines during a global pandemic, and patent protection should not be an impediment to this goal.  These arguments, again while valid, will result in weaker intellectual property (IP) laws, and ultimately less innovation and medical discovery. 
 
What both arguments ignore (but the WHO and the Biden Administration recognize) is that simply removing patent protection will not lead to an immediate increase in the supply of COVID 19 vaccines.  Current vaccine production, and specifically, the mRNA Pfizer and Moderna products, requires technologies and know-how that are encompassed by multiple IP rights, notably, patents, but also trade secrets.  Examples of vaccine production that are protected by trade secrets include, but are not limited to, manufacturing equipment, machine specifications and proprietary starting materials.
 
            Scope of Protection: Patent v. Trade Secret
 
Patented technology is fully disclosed to the public, and the scope of the patent protection is directly related to the disclosure provided by the patent.  The publication of a patent is the tradeoff for the limited monopoly provided to innovator companies for the contribution of their invention to the public knowledge. Twenty years after the filing of the patent application the claimed technology is granted to the public and free to use by all. 
 
In sharp contrast, trade secrets are protected by maintaining their confidentiality and not disclosing them to the public.  Trade secret protection can potentially be infinite in duration, but the downside is that trade secret holders have little recourse against potential infringers if the trade secret is independently discovered or made public by a non-contractually obligated party.  Because of these distinctions innovator companies often balance their IP rights through the use of both patents and trade secrets. Unfortunately, knowledge of both is needed to reproduce safe and effective COVID 19 vaccines.  
 
            Taking of IP Rights
 
Innovator companies will argue that no compensation will make them whole if their patented technology is subjected to a compulsory license.  However, when an innovator company chooses to seek a patent it consciously agrees to publicly disclose and disseminate the technology.  The rights the innovator company maintains are when the technology becomes free to use and who is allowed to use the technology before it is free to use.
 
In contrast to patent owners, trade secret holders have made a concerted effort to keep their proprietary information and know-how confidential.  If innovator companies are forced to divulge trade secrets to competitor companies, sometimes in countries with fewer or no IP rights, it would constitute a much greater invasion of IP rights than a temporary compulsory license.  Moreover, once the trade secret has been provided to the competitor company there is no guarantee it would not be used in the future or divulged to others.  The competitor company may be required to sign contracts and/or non-disclosure agreements, but these may be of little value to the innovator company if the trade secret is made public or if the competitor company resides in a country with little or no IP protection.  
 
To compare the two types of takings, think about being forced to allow someone to walk across your front lawn versus being forced to allow someone to walk into your house and take something out of your private safe.  While both are intrusions on your property, one is clearly less temporary and less compensable.  The taking of patents via compulsory licensees can be temporary, but the taking of trade secrets is permanent.
 
          Final Thoughts 
 
The conflict between IP rights and the global need for vaccines is not intractable.  The answer is cooperation, but agreed upon verifiable cooperation, not forced relinquishing of IP rights.  Cooperation has already occurred between innovator companies Pfizer and Sandoz who have agreed to share technology to increase the production of Pfizer’s COVID 19 vaccine in Europe, and in the agreement between Merck and Johnson & Johnson to increase vaccine production in the U.S.[3]  The COVAX program is another example of global cooperation to increase the supply of vaccines.[4] What is notable in all these examples is that the cooperation is between major innovator companies with strong incentives to reciprocally uphold IP protection, and the production is being conducted in countries with strong IP rights.  This is not a relinquishment of IP rights, but a concerted effort to protect innovation and simultaneously address the global need for life saving vaccines. The end result will hopefully be a massive increase in available vaccines, while maintaining the incentives and protections afforded by IP law.     
 
[1]https://www.cnbc.com/2021/03/26/covid-vaccine-updates-white-house-mulls-lifting-intellectual-property-shield.html
 
[2]https://www.theguardian.com/commentisfree/2021/mar/05/vaccination-covid-vaccines-rich-nations
 
[3]Id.

[4]https://www.who.int/news/item/15-02-2021-who-lists-two-additional-covid-19-vaccines-for-emergency-use-and-covax-roll-out
 

 If the question “Should I Copyright the Trademark in my Patent?”, or some variant thereof, has kept you awake at night worrying about protecting your business you are not alone.  Intellectual Property (IP) is confusing and intimidating for independent inventors and Fortune 500 CEO’s alike.  How do we solve these issues? If you are the CEO you call your $1000+ an hour IP attorneys, or staff of in-house IP specialists. But how does the small business person tackle these issues? First, relax and let the IP nightmares subside, then imagine yourself a “long time ago in a galaxy far, far away ….”  (you can hear the music can’t you?) 
 
George Lucas is pitching a space wizards with laser swords movie.  As a prudent businessman he is concerned about his “intellectual property rights.” He’s confused what those rights are, and he feels a ripple in his mystical karmic energy (I’m relying heavily on fair use/satire so let’s not push this too far) that makes him think he should consult with an IP attorney.  George is worried about protecting the script for his new movie, the name he will use on toys for his robots, and an idea he has for converting crystals into an electromagnetic power source.  Concerns we have all experienced. 
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​Let’s deal with the script first.  Copyright law provides protection to authors for their original works of art from unauthorized copying or reproduction.  The works can include, books, photographs, paintings, sculptures, songs, films, screenplays, and many other forms of artistic expression.  George as the original author of the script has common law copyright in his script the moment he puts it into tangible form, i.e., writing it down, but the more prudent method of protecting his copyright will be to file a Federal Copyright Registration at the United States Copyright Office.  The federal copyright will allow him to sue in court for an injunction and potentially collect statutory damages.   
 
George has also come up with a name to refer to his robot protagonists, namely, Droid®.  The term Droid® can be protected by trademark law, which grants rights to owners of the trademark to stop competitors from using the same or similar names on similar goods.  He intends to use the word Droid® to market toys based on the robot characters from his movies and does not want others to sell toys with a similar name.  George can file his trademark application for Droid® with the United States Patent and Trademark Office (USPTO), and he actually did (https://en.wikipedia.org/wiki/Droid_(Star_Wars)).    
 
Next, let’s get to the inventions. During one of George’s fever dreams he conceived ideas for a device and a process for converting kyber crystals into electromagnetic energy that can be harnessed, amplified and redirected.  These inventions can be protected by patents, which protect new ideas for devices, compositions of matter, methods or processes.  A patent owner can then stop others from making, selling or importing the patented invention.  George can file patent applications at the USPTO for his kyber crystal harnessing device and for the process for converting, amplifying and re-directing the resultant crystal energy.  He may have issues with the novelty of his crystal based planet destroying technology, enablement and written description, but these are topics for another day.  
 
 You may have also heard the term Trade Secret in IP jargon.  As a brief example let’s assume George developed a working laser sword.  If he did not want to allow the technology to be available to the public (because for some reason he thought laser swords were more dangerous than death stars???) he could try to keep the technology secret by restricting its access.  Trade secrets allow the owner to keep the invention (or client list, recipe, processing technique, etc.…) protected if the owner maintains confidentiality of the secret.   However, this form of protection has many drawbacks if the secret becomes public.  
 
What should be evident to everyone is that the sale of Mr. Lucas’ Space Wizard IP to Disney ($4 Billion+) demonstrates that IP rights can be VERY valuable and should not be ignored. This IP primer cannot attempt to cover the myriad IP rights that exist in Mr. Lucas’s science fiction mythology or your daily business world, but I hope it can provide some clarification on the tools available to protect your intellectual property. I wish you good fortune in your IP endeavors, and may the mystical karmic energy always be in your presence.