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Comment by phonon | Hacker News Reader

https://www.jacobinmag.com/2021/04/moderna-patents-covid-19-...

"Moderna’s Pledge Not to Enforce the Patents on Their COVID-19 Vaccine Is Worthless"

tldr...all the good stuff are trade secrets.

This quickly turns into criticizing Moderna for using their full technical capacity supporting business partners instead of everybody. There isn't infinite capacity to share knowledge and it's unlikely that they are short on potential partners.

That article> This “invulnerable exclusivity” is harmless enough when it protects secret soda formulas and hamburger mystery sauces. It’s less cute when it blocks countries from using their legal right to manufacture and import lifesaving medicines.

This is introduced as if random countries have an established legal (rather than moral) right to manufacture these items covered by patent. I wasn’t able to find (in the article or my brain) the basis for the claim that there’s an established legal right to do so.

The entire point of the article is that even when patents are expired (or temporarily waived in the case of the Moderna vaccine), the inventions in them still cannot be manufactured by others because the patent does not contain anywhere close to all of the required information.

There is certainly a legal right to manufacture things that are not currently under patent.

Surely random countries have legal rights to do most things they want to, since they make up their own jurisdictions?

Yes, you can have a legal right to manufacture it - which is to say the legal right to try without being sued or breaking a law. That's not the same thing as the legal right to manufacture it successfully, which is what the distinction would be.

The article is blurring the right to attempt to manufacture without legal restriction, and the ability to successfully replicate the formulation. This blurring makes sense from some points of view (especially from Jacobin's POV, and from an argument of immediate justice for the most people), but obviously falls apart from other POVs.

I think what that person you responded to what getting at is a "country" has the legal right to do whatever they want. If a country signed a treaty promising to recognize patents from foreign countries they have the legal right to withdraw from the treaty.

I assume poorer countries are not doing this due to fear of foreign aid being withdrawn, but this isn't really an issue of "rights".

We're bringing up rights because Jacobin framed in the terms of rights. And within the specific context of the article, we don't need to sorry about worrying about repercussions - Moderna has effectively granted a license to allow 'random countries' to make their vaccine without being suited for patent infringement.

Jacobin's point is that the pledge is meaningless because the patent lacks sufficient information to make the vaccine anyways - it's all locked up in trade secrets. Jacobin then frames this in terms of rights.

Jacobin claims that the way patents are usually discussed will imply that patents are about 'positive rights' - that is, if you have a patent or license, then you have the ability to commercialize (or whatever) the thing that is patented. Jacobin then claims that in reality, patents are just a negative right. Having a patent, or a license to a patent is just a freedom from not being sued for commercializing a product - since the real positive right that people want - the ability to successfully produce the object is actually wrapped under trade-secrets. The article is basically arguing that this split is injust, or at least extremely misleading, and is trying to call out the bullshit.

While I agree with the author that most companies don't disclose their crown jewels in patents, I disagree with the historical perspective that this is somewhat new. Moreover, the author misses the point, in that while patents really don't disclose most of the secrets, they still pose a significant threat to anyone replicating some of the methods, exactly because they are so broad.

So yes the patents don't disclose how to actually produce the vaccines, but that's actually not the problem (see the published work where people already reverse engineered the vaccines). The problem is that patents still prevent people knowledgable in the field from actually making vaccines, because of the threat of expensive litigation.

I just want to clarify, I'm neither a fan of the current patent system, nor of Moderna (they are clearly doing it because they see business sense in it).

However, the linked article clearly misrepresents the "value" of patents to companies. They want to (and are) using patents to keep out competitors.

The article seems to make the case that if patents actually would disclose how to make something instead of keeping trade secrets things would be fine. I disagree, having trade-secrets is fine, but abolish patents.

That's the right approach though. If you invent and make something it's morally superior to rely on secrecy rather than on people with uniforms and guns to enforce your rights.

That article seems to just assume that Moderna are acting in bad faith there, without a lot of evidence. Certainly if they wanted to be obstructive they still could be, but the article-writer doesn't prove it either way.

I'd be interested to know if that's been tested. For example, have any other companies or countries proposed making the Moderna vaccine at all? And what happened? Co-operation? Grudging support? Full-on obstruction?

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