Assessing Patent Pledges: A Case Study in the Vaccine and Biopharma Space

Abstract

At the height of the COVID-19 pandemic, the U.S. biopharma company Moderna pledged not to enforce its COVID-19 vaccine patents against competitors. While it has become fairly common for corporate actors to promise to engage in certain behaviors, companies in the biopharma space have been much more parsimonious in making promises directly concerning their intellectual property.

A company promising to refrain from asserting its patents against direct commercial competitors at the height of market demand—brought about by the COVID-19 pandemic—is a new phenomenon in the biopharma world. Yet we know very little about the legal implications of such a promise.

This essay presents a case study on the Moderna pledge. By complicating the enforceability analysis in this specific case, the essay also raises questions about how we should think about pledges of non-assertion more generally, particularly when they arise in the highly idiosyncratic context of biopharma research and development. The essay concludes  with a brief reflection on implications of this vaccine case study for future analyses of the enforceability of patent pledges in contexts beyond biopharma innovation.