Council on Foreign Relations Reports on Deadly Virus and Viruses That Become the Property of Sovereign Nations

CFR Senior Fellow for Global Health Laurie Garrett writes, “Like the SARS virus, MERS ravages the lungs of infected people, causing pneumonia and acute respiratory distress. …But unlike SARS, it also attacks the kidneys, causing renal failure.”

“There is no cure, rapid diagnostic test, or vaccine for MERS-CoV,” Garrett adds.

But the ability to develop a treatment for the epidemic is being impeded by a concept known as “viral sovereignty”–the idea that deadly viruses are the property of sovereign nations.

Garrett writes:

"My greatest concern right now is the novel coronavirus," Chan warned the representatives of two hundred nations gathered in Geneva. "We do not know where the virus hides in nature. We do not know how people are getting infected. Until we answer these questions, we are empty-handed when it comes to prevention."

But impeding an effective response is a dispute over rights to develop a treatment for the virus. The case brings to the fore a growing debate over International Health Regulations, interpretations of patent rights, and the free exchange of scientific samples and information. Meanwhile, the epidemic has already caused forty-nine cases in seven countries, killing twenty-seven of them.

At the center of the dispute is a Dutch laboratory that claims all rights to the genetic sequence of the Middle East Respiratory Syndrome coronavirus [MERS-CoV]. Saudi Arabia's deputy health minister, Ziad Memish, told the WHO meeting that "someone"--a reference to Egyptian virologist Ali Zaki--mailed a sample of the new SARS-like virus out of his country without government consent in June 2012, giving it to Dutch virologist Ron Fouchier of Erasmus Medical Center in Rotterdam.

"The virus was sent out of the country and it was patented, contracts were signed with vaccine companies and anti-viral drug companies, and that's why they have a MTA [Material Transfer Agreement] to be signed by anybody who can utilize that virus, and that should not happen," Memish said.

Though Memish referred to a "patent," the Dutch team has not patented the viral genetic sequence but has placed it under an MTA, which requires sample recipients to contractually agree not to develop products or share the sample without the permission of Erasmus and the Fouchier laboratory. Memish said that the Dutch MTA was preventing Saudi Arabia from stopping the MERS-CoV outbreak, which appears to have started eleven months ago in the Eastern part of his country. The Dutch team denies the MTA is slowing work on the outbreak, saying it has given virus samples to any lab that has requested it.

Courts in North America and Europe have ruled that it is possible to patent life forms or their genetic sequences, spurring the practice of claiming patent control on newly identified microoganisms. Such patents give owner rights over royalties on all products derived from the genetic sequence, including vaccines, diagnostics, and genetically targeted treatments. But they have spawned controversy outside of wealthy countries, since they are perceived as guaranteeing profits for Western pharmaceuticals at the expense of country-of-origin use and access.

Obviously, this is granting of monopolistic patent rights to an insane level, as if patent rights as currently constructed weren't insane enough. Murray Rothbard correctly identified independent discovery as the correct construct for patents/copyrights. In Man, Economy and State, he wrote:

The copyright is there­fore a logical device of property right on the free market.

 Part of the patent protection now obtained by an inventor could be achieved on the free market by a type of “copyright” protection[...]  The patent is incompatible with the free market precisely to the extent that it goes beyond the copyright. The man who has not bought a machine and who arrives at the same invention in­dependently, will, on the free market, be perfectly able to use and sell his invention. Patents prevent a man from using his in­vention even though all the property is his and he has not stolen the invention, either explicitly or implicitly, from the first in­ventor. Patents, therefore, are grants of exclusive monopoly priv­ilege by the State and are invasive of property rights on the mar­ket.

     The crucial distinction between patents and copyrights, then, is not that one is mechanical and the other literary. The fact that they have been applied that way is an historical accident and does not reveal the critical difference between them.[96]The cru­cial difference is that copyright is a logical attribute of property right on the free market, while patent is a monopoly invasion of that right.

While the Dutch lab claims exclusive rights to any vaccines, diagnostics, and genetically targeted treatments for MERS, here's more from Garrett on what we are dealing with:

There is no cure, rapid diagnostic test, or vaccine for MERS-CoV, or for any of the class of coronaviruses, which includes SARS--the scourge that erupted from China in 2003.

Like the SARS virus, MERS ravages the lungs of infected people, causing pneumonia and acute respiratory distress. Also like SARS, it is previously unknown to human immune systems, so response to infection can include the classic "cytokine storm" reaction of an overresponsive immune system that hits the virus with all it's got, creating collateral damage all over the body. But unlike SARS, it also attacks the kidneys, causing renal failure.

Epidemiologically, MERS seems to be similar to SARS: It is spread by close contact, and can be airborne-transmitted between people. Both viruses can be dangerous for health-care workers and spread within hospitals. There is no rapid diagnostic test for MERS, which puts doctors and nurses at special risk since they cannot easily distinguish the symptoms between early-stage MERS-CoV patients and regular pneumonia.

The new MERS-CoV is shrouded in mystery right now as Saudi investigators are unable to determine its reservoir species--where did it come from--how it is spread from that species to people, a method for rapid diagnosis, proper treatment, and best approaches to hospital infection control. Suspicions point to fruit bats in the eastern Al-Ahsa province of Saudi Arabia, where the bulk of the cases have occurred.