Though most news organizations routinely questioned the Trump administration’s authority to act without express approval from Congress or the courts, that was a brief exception to a 25-year trend toward blithe acceptance of ever greater power accumulating in an aggressive executive branch. Now that it’s the Biden administration wielding power, the media seem to have reverted back to their unquestioning norm, as evidenced today by both Washington Post and Wall Street Journal coverage of the administration’s newly announced plans to waive the patent rights of Covid vaccine makers. (It’s reasonable to assume the New York Times followed suit, but who’s foolish enough to pay good money for a subscription?) Neither outlet bothered to explain to readers the legal grounds on which the administration claims such authority. The composite email below was sent to relevant reporters, editors, private sector attorneys, Pfizer’s CEO and PhRMA’s executive vice-president for public affairs.
May 6 front-page news stories [“Administration backs waiving vaccine patents,” WaPo, and “U.S. Supports Waiving Patent Rights on Covid-19 Vaccines,” WSJ] and a same-day editorial [“Biden’s Vaccine Patent Theft,” WSJ] report the Biden administration’s wholly predictable willingness to join many smaller, left-leaning nations in plans to commandeer private-sector innovations in the name of equity and humanitarian pandemic mitigation. But on what statutory grounds do would-be patent grabbers in the U.S. stand?
Among other things, Article I, Section 8 of the Constitution grants Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries….” And our legislators and judges have over two centuries developed a significant body of patent law about which, incredibly, reporters and editorial writers said nothing.
So, while there may very well be statutory text or court precedent that spells out related emergency executive branch powers, this earnest layman asks again: On what grounds does the Biden administration assert legal authority to snatch patent protections away from U.S. vaccine innovators? And if there is no such clear-cut authority, when will these thus far seemingly supine innovators storm into the nearest federal courthouse seeking an injunction or, at the very least, signal their intention to do so?
Darren McKinney, Washington, D.C.