Washington Journal of Law, Technology & Arts


Genetic technologies range in scope from agricultural to medical applications. Most recently, during the COVID-19 pandemic, companies like Moderna developed and patented genetic technologies for diagnostic and therapeutic purposes, like the mRNA vaccine. However, patent protection provides these companies with a monopoly that ultimately limits domestic production of generic versions, thus limiting access to life-saving diagnostics and therapeutics. When a company located in one country files a patent for recognition in another country, it effectively places a hold on production of any technologies covered by that patent’s reach, whether that patent is enforced or not. However, the TRIPS Agreement, the Convention on Biological Diversity and Nagoya Protocol, and other instruments create obligations for countries to transfer technology to other countries. TRIPS and the Nagoya Protocol permit countries to exempt genetic technologies from patentability. However, some countries have formed “TRIPS-Plus” agreements that are superimposed upon, and prevent countries from taking advantage of, these exceptions in TRIPS.

This article will cover current patent law governing genetic technologies, and how these laws, along with intellectual property rights and anti-competitive practices, often hinder access to genetic technologies. It will also provide recommendations on how to facilitate access, including via a duty to transfer.