Sounds like Gilead kept federal researches and university researches off of the patent. Wonder if Barr will go after them.
The first document was an application filed in September 2015 in which Gilead sought a U.S. patent for a using the compound for any number of coronavirus infections. Although the code Gilead assigned to the compound – GS-5734 – does not appear in the body of the application, experts who have reviewed the chemical structure say the compound is remdesivir. And Gilead could take that patent, which was issued last year, to the bank if its medicine ever becomes a viable business proposition for treating Covid-19 or any other illness.
One month later, some of the same Gilead employees whose names appeared on the patent application were listed as co-authors on a Nature research paper – along with numerous government scientists – showing remdesivir, specifically, held promise in fighting Ebola and other coronaviruses. The paper also noted testing was conducted at high-risk security labs run by the federal government.
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Gilead actually had a huge number of patents on the molecules, but had to do a tremendous amount of work to figure out which variations of the various molecules would work against the biological models the government had. This patent illustrates the essence of why collaboration between the public and private sectors is important, not just in terms of money, such as grants, but resources.”
“What really matters is how much money the government has put into research, but if their names were on there, it would help to make the case there was a lot of in-kind contribution from the government,” she explained. “Right now, if Gilead tried to assert rights (in response to a patent challenge), there would be no way to know there was some government right to a license to the patent.”
Generally, one must play connect the dots to find government assistance. For instance, the National Institutes of Health gave grants to several universities whose researchers worked with Gilead scientists. Their efforts appeared in a 2018 paper in the American Society for Microbiology, which found remdesivir can combat coronaviruses, noted Tahir Amin, who heads the Initiative for Medicines, Access, and Knowledge, an advocacy group that challenged various Gilead patents on hepatitis C medicines.
https://www.statnews.com/pharmalot/2020/05/08/gilead-remdesivir-covid19-coronavirus-patents/]
Sounds like it is almost standard for companies to leave government funded investigators (employees and grantees) off of patents. I haven't read enough on Bayh-Dole, which allowed companies to get patent rights on US funded research, but it does give rights to the us government. The idea was to make it easier to commercialize patents from government research for the economic benefit while retaining paten rights for the government.
It's complex and I'm not sure if it goes far enough, but if none of the government funded researchers are on the patent(s), that's a more basic problem. I'm sure the pharmaceutical companies fund candidates who don't support going after patent fraud (don't know the right word for deliberately leaving inventors off a disclosure) or tightening the rules so US citizens aren't gouged.
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