New and Heightened Public-Private Quid Pro Quos: Leveraging Public Support to Enhance Private Technical Disclosure

Abstract

While COVID-19 vaccines have saved countless lives, their highly unequal distribution around the world has generated significant concern. Biopharmaceutical firms hold patents on these vaccines, and critics have argued for weakening these patents to increase access to these essential resources. Biopharmaceutical patentees respond that weakening patents would not increase global vaccine production because third parties cannot effectively manufacture vaccines—particularly the latest generation of mRNA vaccines—without proprietary tacit knowledge and trade secrets. This assertion, however, appears to conflict with the traditional quid pro quo of the patent system in which inventors receive exclusive rights in exchange for disclosing their inventions. This chapter argues that this paradox—in which biopharmaceutical patentees have disclosed their inventions, yet those disclosures do not enable technical artisans to effectively practice them—is highly problematic. It explores the importance of tacit knowledge—uncodified, experiential knowledge held by inventors—and trade secrets to practicing and commercializing patented technologies. Patent applicants routinely do not disclose tacit knowledge and trade secrets related to practicing their inventions, and this chapter suggests modifying the patent quid pro quo to induce greater disclosure of such private technical knowledge. It proposes resurrecting the best mode requirement of patentability and potentially extending disclosure obligations for a finite period of time after patent filing. It further argues that government agencies can leverage public research and procurement funds to promote greater technical disclosure by private innovators. Such measures can increase the disclosure of latent knowledge and codified trade secrets. However, transferring purely tacit knowledge, which is not amenable to codification, often requires direct interaction between technology generators and adopters. This chapter cautions against requiring such intensive tacit knowledge transfer as part of the patent quid pro quo. However, it suggests leveraging public investment in private innovation and building knowledge-sharing infrastructure to facilitate such transfer.

Keywords: COVID-19, vaccines, patent law, disclosure, enablement, best mode, tacit knowledge, trade secrets, federal research funding, Operation Warp Speed, TRIPS, TRIPS waiver, mRNA

JEL Classification: F13, H51, I18, L24, O25, O31, O32, O34