Jorge L. Contreras (University of Utah - S.J. Quinney College of Law) has posted Pathogen Genomes as Global Public Goods (And Why They Should not Be Patented) on SSRN. Here is the abstract:
During past viral outbreaks, researchers rushed to patent genomic sequences of the viruses as they were discovered, leading to disputes and delays in research coordination. Yet similar disputes did not occur with respect to the genomic sequence of SARS-CoV-2, the virus responsible for COVID-19. As a result, global research collaboration occurred at an unprecedented rate, leading to the rapid identification of new variants, the ability to track the spread of the disease, and the development of vaccines and therapeutics in record time. The lack of patenting of SARS-CoV-2 is likely due the U.S. Supreme Court’s 2013 ruling in Association for Molecular Pathology v. Myriad Genetics, which established that naturally occurring genomic sequences are ineligible for patent protection, a decision that has had repercussions around the world. Recently, however, legislative proposals have been made in the U.S. to overturn this decision. Such legislation, if enacted, would enable researchers, likely based in countries where pathogenic outbreaks first occur, to obtain U.S. patents on pathogen genomes that are critical to disease response. Given that open, global research collaboration will be essential to address future disease outbreaks, I argue that such legislation should be rejected and that steps should be taken now to ensure that pathogenic sequence data cannot be appropriated by individual researchers, institutions, or states. Accordingly, a new international agreement recognizing the genomic sequences of pathogenic agents as global public goods free from intellectual property protection should be enacted. In addition, WHO, public health agencies and research funders should adopt rapid data release requirements requiring that newly discovered pathogenic genomic sequences are made publicly available as soon as possible, both to promote global collaboration and to deter patenting of those sequences.
