The U.S. Government's Apparent Co-Ownership of Patents Protecting Remdesivir

Abstract

Some preliminary evidence suggests the antiviral drug remdesivir can accelerate recovery from COVID-19, although (as of writing) there is no clear evidence it can actually save the lives of people with COVID-19. Given its promise, remdesivir has been given emergency use authorization by the Food and Drug Administration and is currently being used in hospitals around the world. Remdesivir is manufactured by Gilead Sciences, Inc. (“Gilead”) and is widely perceived as being “owned” by Gilead.However, our analysis indicates that the U.S. government likely has a legal right to claim co-ownership of remdesivir—or at least co-ownership of the core U.S. patents that cover the chemical structure of remdesivir—as well as methods of using the remdesivir to treat various diseases. This is because U.S. government scientists working with United States Army Medical Research Institute of Infectious Diseases (USAMRIID) and the Centers for Disease Control and Prevention (CDC) appear to have contributed in various ways to the “invention” of remdesivir—perhaps to the selection of the compound as a drug candidate, and more clearly to the discovery of remdesivir’s antiviral properties. Based on their intellectual contributions, these government scientists should probably be named as co-inventors on these patents. If these U.S. government scientists are indeed inventors of the patents on remdesivir, then, under U.S. patent law, the patents are presumed co-owned by the U.S. government. If remdesivir proves safe and effective in treating COVID-19, as the world hopes it will, the U.S. government could exercise its patent rights to lower prices and expand access to remdesivir, if need be. This report poses a critical question—if the U.S. government co-invented remdesivir, with substantial investment by the American public in its development, why should Gilead alone profit and control who can manufacture it?