The news in March this year that a shell company, Labrador Diagnostics, had brought a patent infringement suit against a health startup working to develop Covid-19 diagnostic tests, and that Gilead had obtained “orphan status” for a potential Covid-19 treatment, drew attention once again to the commercial practices that modern patent and related incentive systems encourage in the pharmaceutical and other industries. In so doing, it serves as a grim reminder of the systems' insularity, and the dearth of opportunities they offer for public participation in the negotiation and grant of monopolies in respect of emerging technologies. More generally, the global race for a coronavirus vaccine, and concern about the terms on which a future vaccine will be made available to all members of society, underlines the stake of the public in the operation of modern patent systems, and the policy and moral significance of treating essential medicines and other public goods as objects of private property.
These issues are the focus of an article by Justine Pila published this week in Nature Biotechnology: “Adapting the ordre public and morality exclusion of European patent law to accommodate emerging technologies". In the argument she makes, it is time to increase the democratic and social legitimacy of the European patent system by reinterpreting its public policy exclusion and using precautionary theory to support a new method of assessing the moral and public policy implications of commercialising emerging technologies.”