As the nation fights a global pandemic, the rights of inventors of a patentable COVID-19 cure are trampled by the exigencies of the crisis response now underway.

Driving the race for a vaccine is vast funding, from national governments and industry, primarily motivated by the expectation of global market advantage and profits.  The New York Times declared that "[s]even of the roughly 90 projects being pursued by governments, pharmaceutical makers, biotech innovators, and academic laboratories have reached the stage of clinical trials[.] ... With big potential profits at stake for the industry, drug makers and researchers have signaled that they are moving ahead at unheard-of speeds."  

To speed up vaccine development and allow for increased supply production, some are now arguing that the government should temporarily relax intellectual property protections on drugs and medical equipment.  Ostensibly, this would create an unprecedented emergency "fair use" I.P. carve-out for patents.  While a limited fair use exemption does already exist in the copyright industry for things like summarization, education, and parody, creating one of far broader scope on patents — which would essentially allow outright theft — will not benefit COVID-19 patients and could ultimately stall the progress of future vaccines and innovations. 

Success requires investments of billions on new treatments and cures, not only for medicine, but also for the medical paraphernalia for testing and treatment — ventilators, face masks, test kits, glass storage vials, and so on.  In light of the intense multinational data-sharing now underway and the commensurate global manufacturing supply chain needed in the production phase, risking theft or misappropriation by a competitor before the investments are recouped could financially destroy the participant companies, discourage new innovation, and may impact the industry for years to come.

However, there is a possibility that the Supreme Court will expand the scope of the fair use copyright doctrine this fall by ruling in favor of Google in an upcoming Supreme Court Case, Google v. Oracle.  Should the high court do so, it will only strengthen the arguments of proponents who seemingly want to create a similarly expansive carve-out for patents in the health care industry during COVID-19.

The decades-long Silicon Valley dispute in Google v. Oracle centers on Oracle's multi-billion-dollar damage claim against Google's unauthorized use of Oracle's Java package in its Android operating system and its infringement of Oracle's right to copyright protection under the statute 17 USC 107(1).  

The U.S. Court of Appeals for the Federal Circuit, in an earlier decision on this case, held that Oracle's Java coding is entitled to copyright protection.  Consequently, Google's "fair use" defense was rejected by this court.  According to the Federal Circuit, Google merely copied the material and moved it from one platform to another (Google's Android) without alteration, which is not a transformative use.  The court further ruled that "unrestricted and widespread conduct of the sort engaged in by" Google would result in "a substantially adverse impact on the potential market for the original" and its derivatives. 

This November, it will not be just the election year politics that deepens the economic uncertainties unleashed by the pandemic.  If the Supreme Court's ruling on this seminal case expands the fair use defense to include what is otherwise considered commercial plagiarism, there could be a chilling effect on all inventors that bears the cost of innovation.  The Supreme Court should uphold the earlier federal circuit court ruling, but with clear enforcement guidance that continues to favor an inventor's fundamental constitutional right to protecting their innovation.  The economy can emerge stronger from the global pandemic and, as a result, the innovators guiding our way can thrive and prosper. 

Sue Ghosh Stricklett is a widely published freelance author on topical legal issues.  A graduate of the Catholic University of America School of Law, she has practiced law for the past 25 years.