Moderna’s patent pledge brings to mind Elon Musk’s “all our patents belong to you” statement and is being questioned for many of the same reasons. One item that many have forgotten is that the NIH affirmatively said in May that it believes the U.S. Government also holds IP rights in any vaccine used to treat COVID-19. This leverage—combined with the myriad other reasons not to be the company applying a patent monopoly in a public health crisis—will likely curtail any significant litigation until after the vaccine’s initial distribution. After 2021, it may look very different. For now, we expect all the players to hold back unless or until they are cornered.
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