Opinions and Editorials

Apr. 28, 2020

Roll Call: To Prepare For The Next Pandemic, Congress Should Restore Patent Protections For Diagnostic Tests by Judge Paul Michel

Who would have supposed that after several prior serious viral outbreaks, including SARS, MERS and the swine flu, the United States would find itself so short of the diagnostic tests needed to combat the COVID-19 pandemic?

Yet, the nation does find itself woefully short of test kits and the means to rapidly process test results. We obviously need much wider testing and need it immediately. In addition to identifying who has the disease, we need to identify who has antibodies and may now be immune, key information as we look to reopen the economy.

There are many reasons for this unpreparedness, but here is one that few people have heard of: In recent years, the courts have eliminated incentives for private companies to develop diagnostic tests by excluding such tests from patent protection. This has proved to be a colossal mistake. Patent protection is necessary to incentivize the massive R&D investments of private capital required for the development of new diagnostic tests. Without reliable patent protection, no venture capitalist or business leader can justify continuing to make such large and risky investments.