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During past viral outbreaks, researchers rushed to patent genomic sequences of the viruses as they were discovered, leading to disputes and delays in research coordination. Yet similar disputes did not occur with respect to the genomic sequence of SARS-CoV-2, the virus responsible for COVID-19. With respect to COVID-19, global research collaboration occurred rapidly, leading to the identification of new variants, the ability to track the spread of the disease, and the development of vaccines and therapeutics in record time. The lack of patenting of SARS-CoV-2 is likely due the U.S. Supreme Court’s 2013 ruling in Association for Molecular Pathology v. Myriad Genetics, which established that naturally occurring genomic sequences are ineligible for patent protection, a decision that has had repercussions around the world. Recently, however, legislative proposals have been made in the U.S. to overturn this decision. Such legislation, if enacted, would enable researchers, likely based in countries where pathogenic outbreaks first occur, to obtain U.S. patents on pathogen genomes. Given that ample opportunities exist for patenting of diagnostics, vaccines, therapeutics and other downstream innovations, steps should be taken at national and international levels to ensure that pathogenic sequence data cannot be appropriated by individual researchers, institutions, or states.
Contreras, Jorge L., "Pathogen Genomes as Global Public Goods (and why they should not be patented)" (2023). Utah Law Faculty Scholarship. 381.