It’s a topical question during this COVID-19 pandemic: why are the companies that developed the vaccines against the coronavirus not giving away their patent on the vaccines for the greater good? Why aren’t governments forcing pharmaceutical companies to license other companies to share their patented invention under a compulsory license arrangement?
To support that idea, people like to bring to memory the history of the invention of the vaccine against polio. Heard of Jonas Salk or Albert Sabin? Jonas Salk became a hero when he invented the vaccine against polio, a worldwide disease affecting young children, paralyzing between 20,000 and 50,000 children annually. Although it was the first polio vaccine, it was not to be the last, as Albert Sabin introduced an oral vaccine in the 1960s that replaced Salk’s.
Because Salk’s vaccine was being used successfully in the United States, Sabin could not get support for a large-scale, controlled field trial like the trial of Salk’s vaccine. In 1957, Sabin convinced the Soviet Union’s Health Ministry to conduct field studies with his vaccine. After the Soviet trial succeeded in 1960, the U.S. Public Health Service approved the vaccine in 1961 for manufacture in the United States, and the World Health Organization (WHO) used a live-virus vaccine produced in the USSR.
Like with the current COVID-19 virus pandemic, governments, charities, and the public voluntarily funded the polio vaccine’s incredibly expensive research and field testing. The most well-known polio victim was US President Franklin D. Roosevelt. His polio disability—he could never walk again on his own after contracting polio–translated into a systematic program to uncover the mysteries of polio and to lend a helping hand to Americans suffering from the disease. Over 80 million people donated money to the National Foundation for Infantile Paralysis, which gave the vaccine effort an enormous boost, an action that became known as the “March of Dimes”.
Why did Salk not patent his invention?
One question often asked is why did he, as an inventor of the vaccine, not patent his invention? In a famous 1955 interview of Jonas Salk, Edward Murrow asked him who owned the patent. Jonas Salk’s reply: “Well, the people, I would say. There is no patent. Could you patent the sun?
Many times they have defended this as the most gracious and altruistic approach to pharmaceutical or medical inventions: doing good by abstaining from patenting, giving away an exclusive right for the general public’s benefit. However, the facts are a little murkier.
We cite an article by SLATE from 2014:
“There is an important footnote regarding Salk’s statement that “there is no patent.” Prior to Murrow’s interview with Salk, lawyers for the National Foundation for Infantile Paralysis looked into the possibility of patenting the vaccine, according to documents that historian Jane Smith uncovered during her dive into the organization’s archives (see: “Patenting the Sun: Polio and the Salk Vaccine, 1990, IPEG). The attorneys concluded that the vaccine didn’t meet the novelty requirements for a patent, and the application would fail. This legal analysis is sometimes used to suggest that Salk was being dishonest—there was no patent only because he and the foundation couldn’t get one. That’s unfair. Before deciding to forgo a patent application, the organization had already committed to giving the formulation and production processes for the vaccine to several pharmaceutical companies for free. No one knows why the lawyers considered a patent application, but it seems likely that they would only have used it to prevent companies from making unlicensed, low-quality versions of the vaccine. There is no sign that the foundation intended to profit from a patent on the polio vaccine.”
Although he was the first to produce a polio vaccine, Salk did not win the Nobel Prize or become a member of the National Academy of Sciences. An object of public adulation because of his pioneering work, he spent his life trying to avoid the limelight but endured the animosity of many of his colleagues who saw him as a “publicity hound.” In 1962 he founded the Salk Institute for Biological Studies in La Jolla, California, an enterprise initially funded with support from the March of Dimes. Salk’s own research continued, most significantly on multiple sclerosis, cancer, and AIDS. Salk spent the later years of his life committed to developing a killed-virus vaccine to prevent the development of AIDS in those infected with the human immunodeficiency virus.
Jane Smith, Patenting the Sun. Polio and the Salk Vaccine