Wednesday, August 5, 2020

Are COVID-19 vaccine advance purchases a form of vaccine nationalism, an effective spur to innovation, or something in between?

No vaccine for the novel coronavirus has been approved anywhere. Nevertheless, governments and international organizations around the world are announcing deals for billions of dollars to procure tens of millions of doses of vaccines from companies that are still running clinical trials, including a $2.1 billion deal with Sanofi and GSK announced by the US on Friday. What’s going on? And what do these deals tell us about innovation policy for COVID-19 vaccines? In this post, we lay out the landscape of COVID-19 vaccine pre-purchases; we then turn to the innovation impact of these commitments, and finish by asking what role patents and compulsory licensing have to play.

Thursday, July 30, 2020

How should policymakers use “pull” mechanisms to improve COVID-19 innovation incentives?

As we have emphasized throughout this COVID-19 blog post series, even though patent law historically has been the primary field in which legal scholars consider questions of innovation policy, governments use a wide variety of policies to incentivize and allocate access to new innovations. One of the key dimensions for comparing these different policies is when the incentive occurs. Under ex ante or “push” policies such as grants or R&D tax incentives, innovators receive funding early in the research process, before the results are known; for ex post or “pull” policies such as patents or prizes, only successful projects receive a reward. 

In a recent talk for the Iowa Innovation, Business & Law Center’s speaker series on COVID-19 innovation policy, one of us (RS) explained why pull mechanisms are very effective innovation policy levers to achieve the kind of clear technological goals presented by the pandemic. Here, we will unpack these ideas and explain how lawmakers should be adjusting these policies to bring this crisis to a more rapid close.

David Simon: Trademark Law and Consumer Safety

I was happy to read David Simon's new article, Trademark Law and Consumer Safety, forthcoming in the Florida Law Review. Simon argues trademark law should pay more attention to the physical harms that products pose for consumers, rather than just economic harms. The conventional view is that trademark law exists to prevent consumer confusion and lower consumers' search costs for finding the products they want. At the same time, trademark law protects sellers' investments in product quality and advertising.

Simon's article argues that trademark law does, or should do, a lot more than this: it should protect consumers from physical injury.

Wednesday, July 22, 2020

How should policymakers incentivize and regulate convalescent serum therapy for COVID-19?

Over 120 years ago, a milk wagon horse named Jim was the United States’ most potent weapon against a raging diphtheria epidemic. During his lifetime, Jim—inoculated against the bacterial toxin that causes the disease—produced gallons of anti-diphtheria serum that, once extracted, could then be administered directly to patients. But tragic difficulties in making a safe and standard therapy from a single horse led Congress to pass the 1902 Biologics Control Act—the predecessor to the FDA’s current oversight over biologic products.

While convalescent sera have largely fallen out of favor since the development of modern vaccines, there is renewed hope in the space: the development of therapeutic sera from recovered COVID-19 patients. Encouraging the development of safe, pure, and potent COVID-19 convalescent serum has recently tasked policymakers with numerous challenges—some old, and some new. In this post, we explain the “manufacture” of COVID-19 convalescent sera and explore the regulatory and innovation policy difficulties in maintaining it.

Friday, July 10, 2020

How will the FDA’s new COVID-19 vaccine guidance affect development efforts?

Policymakers are expectantly awaiting the development of a COVID-19 vaccine, which they view as critical to future management of the pandemic. A number of pharmaceutical companies have jumped into the vaccine race, moving at record speed, with several vaccines already about to enter Phase III trials. Last week, the Food and Drug Administration (FDA) released a guidance document on the development of new vaccines for COVID-19. In this post, we review the FDA’s new guidance, consider the ways in which the FDA must attempt to balance risk and access in this context, and address the critical question of patient access to future approved vaccines.

Thursday, July 2, 2020

Racial disparities in healthcare innovation in the time of COVID-19

In previous posts, we have explored how structural racism contributes to disparities in COVID-19 cases and deaths and in access to COVID-19 treatments and preventatives. Legal institutions have also been complicit in creating a healthcare innovation system in which those receiving scientific and medical education are far from representative of the U.S. public. The resulting disparities by race, gender, and class raise substantial problems for both equity and economic growth—but these inequalities receive too little attention from most health and innovation scholars, ourselves included. This week, we examine how the COVID-19 pandemic has highlighted and exacerbated racial disparities in three slices of the healthcare innovation ecosystem: medical education, medical patenting, and clinical trials.

Tuesday, June 30, 2020

Today, the Supreme Court ruled (8-1) that merely adding ".com" to a generic term may allow the combination to be protected as a non-generic trademark. In other words, adding ".com" can confer meaning to the consuming public, and thus is not the same as adding "company" or "inc," which does not confer meaning. That was really the linguistic question in the case. Case law has long held that "Booking, Inc." is really "Booking." So, is "" also "Booking"? Or is it ""?

As a reminder, a mark is generic when it describes what the product is, and not who makes the product. So, would refer to a single company (who) that makes bookings, and not to just any booking company (what). A generic term might be lawyer - it refers to what (legal services) and not to who (there are many lawyers). As the Court puts it, Travelocity is a booking company, but is it a company?

I signed on to an amicus brief supporting, and I'll tell a story why (and why I so keenly followed this case). Way back in the beginning of the commercial internet, my firm registered the domain This was a big deal - making it work for email required complicated email gateways, etc. I hadn't even gone to law school yet, and I was in charge of setting it up. Connectivity looked a lot different for a small firm in 1994 than it does now.

Wednesday, June 24, 2020

How can health regulators maintain public trust when facing scientific uncertainty?

Health regulators such as the FDA and CDC always operate under uncertainty—evidence about health interventions inevitably comes with error bars. Under normal circumstances, regulators demand evidence that meets certain thresholds of validity and reliability before taking action, such as making a public health recommendation or approving a new drug. During a public health emergency like the COVID-19 pandemic, regulators are forced to act under higher-than-usual uncertainty: the social costs of waiting for better evidence often outweigh the costs of taking action before all the evidence is in. Regulators will thus make more mistakes than usual. And in addition to the direct costs of these mistakes, apparent flip-flopping on regulatory decisions risks undermining public trust in health agencies. In this post, we provide some examples of regulators reversing COVID-19-related decisions, describe the considerations these agencies are attempting to balance, and suggest ways for health regulators to maintain public trust while acting under high scientific uncertainty.

Thursday, June 18, 2020

How can the government improve access to COVID-19 preventatives and treatments for low-income Americans?

In the United States, one of the most important factors in receiving COVID-19 testing or treatment is access to insurance. But insurance—like other health innovations—is grossly and unevenly distributed. In particular, because of the way income and employment are distributed in the U.S.—and the country’s long-standing connection between income, employment, and insurance—Black Americans and other people of color remain vastly uninsured or underinsured, problems likely to be exacerbated by the COVID-19 pandemic. In this post, we look at how insurance policy—itself, a form of health innovation policy—has a racially disparate effect in the pandemic, with a particular focus on Medicaid.

Tuesday, June 16, 2020

USPTO v. – A Linguistic Justification for ‘Generic Trademarks’

Guest post by Jake Linford, Loula Fuller and Dan Myers Professor, Florida State University College of Law, whose trademark law scholarship I have highlighted on Jotwell

I want to thank Lisa Ouellette for inviting me to blog about United States Patent & Trademark Office v., a trademark case argued before the Supreme Court in May, with a decision expected soon. The Court selected that case for its first live telephonic oral argument. The night of the historic oral argument, Christine Farley of American University Washington College of Law hosted a discussion where I joined Rebecca Tushnet, Marty Schwimmer, and Cara Gagliano to recap the argument and discuss the case. Below, I summarize the oral argument in some detail (with page and line references to the transcript) and offer my prediction of what the forthcoming opinion might hold.

Thursday, June 11, 2020

Structural Racism and COVID-19

Over the past two weeks, the United States—already hit hard by the COVID-19 pandemic—has reckoned with another public health crisis: police violence against Black Americans. The protests and outrage galvanized by the killing of George Floyd by a Minneapolis police officer have renewed public attention to the pervasiveness of racial inequality throughout the United States. With this backdrop, it is hard to ignore the disproportionate impact COVID-19 has had on Black Americans, who are dying at a rate twice as high as their share of the population.

In this blog post series, we have focused on how innovation and health laws have exacerbated the COVID-19 pandemic thus far, and how they can help spur development of affordable preventatives, diagnostics, and treatments. But we also think it is important to recognize how these laws and other legal institutions have often been complicit in creating the structural framework within which these racial disparities have persisted. In this post, we highlight the work of scholars who have focused on this issue and explain how structural racism contributes to disparities in COVID-19 cases and deaths, access to treatments among those who have been afflicted, and access to the most effective preventative interventions.

Thursday, June 4, 2020

Sean O'Connor's Historical Take on Different Types of Intellectual Property

I truly enjoyed Sean O'Connor's new paper, forthcoming in the George Mason Law Review, called "Distinguishing Different Kinds of Property in Patents and Copyrights." It is somewhat sui generis. But I guess I would describe it as a 'legal-historical take on how people perceived intellectual property in the past, with theoretical implications for IP today.'

Wednesday, June 3, 2020

How can policymakers encourage the expansion of at-home diagnostic testing for COVID-19?

As we have previously discussed, fighting the COVID-19 pandemic will require a massive expansion of testing. Diagnostic tests for who is currently infected are particularly important. Given a limited number of health-care providers and testing sites, at-home testing has emerged as an important route to expand diagnostic testing capability. But developing at-home diagnostic tests that are affordable, reliable, effective, and able to be administered by untrained individuals presents a number of challenges. How should policymakers encourage the development and deployment of such tests?

Why is at-home COVID-19 testing needed?

Currently, the vast majority of testing for active infection (principally by RT-PCR) requires a health-care worker trained to collect samples. In large part, this requirement arises because samples are collected using a nasopharyngeal swab—something like a very long Q-tip which is inserted through the nostril as far back as the ear. The task is unpleasant for the patient and requires training to do right. It can also be dangerous to the health-care worker, because patients often sneeze or cough in reaction to the swab, potentially exposing the worker to SARS-CoV-2.

As a result, getting tested for COVID-19 requires traveling to a testing site, whether a hospital, a clinic, or a drive-through site. Today, availability is still limited; appointments are often required, and some sites are limited to residents of a particular area. Getting to a testing site also requires actually getting to the site, which can be difficult for those without cars or ready access to public transportation (which itself brings risks). Unfortunately, the populations most vulnerable to COVID-19 frequently overlap with those lacking good access to personal transportation

At-home testing could ease the path to substantially increased testing, allowing more frequent testing of more people and readier access across different populations. At-home testing could lessen friction from transportation and site access and circumvent bottlenecks due to the limited availability of health-care workers.

Wednesday, May 27, 2020

Nonexcludable Innovations and COVID-19

Some of the most widely discussed COVID-19 interventions include vaccines, drugs, and medical devices—typical interventions for many diseases, whether the cause of a pandemic or not. These interventions share a further similarity—they’re all generally excludable. That is, the owner of a particular invention can generally exclude others from practicing it without permission. In a classic account of IP, it is this excludability that encourages their development in the first instance. But as Professors Amy Kapczynski and Talha Syed have explained, some knowledge goods are more excludable than others. In this post, we describe why many successful COVID-19 interventions—washing hands, wearing face masks, even the proning of patients in a hospital setting—are generally nonexcludable and thus likely to be underincentivized by IP-based market rewards. Policymakers tasked with encouraging COVID-19 innovation should attempt to correct for this asymmetry in excludability.

Tuesday, May 19, 2020

Remdesivir Part II: Allocating Access

By Jacob S. Sherkow, Lisa Larrimore Ouellette, Nicholson Price, and Rachel Sachs

Last week, we focused on incentives for developing clinical evidence supporting the use of remdesivir for COVID-19 and analyzed the FDA’s grant of an emergency use authorization (EUA) for the drug. This week, we consider mechanisms for allocating access to the drug, including distribution, payment, and patents. Importantly, many of these issues are relatively uncommon to encounter in the prescription drug space. The government does not usually control the allocation and distribution of new drugs after marketing authorization has been granted, although it is doing so for remdesivir. These novel issues raise opportunities, but also concerns, for law and policy.