Strong Patents Encourge Research into Emergent DiseasesJune 9, 2020

Scientists have been asked many questions over the past few months, such as why the current pandemic was not prevented or what would be needed to prevent future outbreaks of emergent diseases.

The short answer is vastly more research needs to be done. Emergent diseases are, by definition, diseases which have not appeared before within a population. Therefore, to study emergent diseases, researchers must first be able to predict their existence based on known, similar diseases. This prediction results in a lot of uncertainty because it is unknown if the predicted disease will actually emerge or if it does emerge, if it will actually cause serious illness. This uncertainty requires a large amount of research and the assumption of a large amount of risk for researchers.

One way to encourage research was to reduce this risk by granting a patent for a new discovery or invention. However, under the current subject matter jurisprudence for patents in the United States, there is not a strong incentive for the development of diagnostic methods or treatment methods wherein a certain population goes untreated. Under the currentMyriad/Mayo jurisprudence, diagnostic methods have repeatedly been found invalid by the Federal Circuit. Now, underINO Therapeutics, LLC v. Praxair Distribution Inc. it seems that the Federal Circuit will also reject treatment methods if one of the outcomes is to withhold treatment. For example, underINO, a claim for treating covid19 which results in not treating an uninfected subject is invalid.

Therefore, the current state of the patent system in the US is no longer incentivizing the private sector to do the research necessary to counter emergent diseases, such as covid19, though the patent system. This is unfortunate as the New England Journal of Medicine in 2011 provided a study that showed private sector discoveries accounted for about 79-90% of all pharmaceutical products between 1990 and 2007. This is further compounded by the fact that at the current level of grants, prizes, and philanthropy, there is no real substitute for the amount of risk the patent system can alleviate. Therefore, the current state of subject matter eligibility is no longer providing an incentive to the largest contributor to pharmaceutical products to do research in a critical area of science.

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