4 ms·

Taking this article at face value, the company has not disclosed how to make the thing at all, not just how to make it at scale. I would not suggest that the m

by gpm 5y ago

Taking this article at face value, the company has not disclosed how to make the thing at all, not just how to make it at scale. I would not suggest that the most efficient way to make it must be disclosed (if you want to patent the finished good but not the efficient manufacturing process), just a way.

JumpCrisscross 5y ago
> the company has not disclosed how to make the thing at all, not just how to make it at scale They’ve also not patented everything, choosing to retain some of the most sensitive techniques as trade secrets. If this persists, we’ll see more pharmaceutical companies taking a Muskian approach to patents.
dctoedt 5y ago
From the USPTO's Manual of Patent Examination Procedure: (quoting the patent statute): "The specification. . . shall set forth the best mode contemplated by the inventor of carrying out his invention." And the Manual's explanation: "The best mode requirement is a safeguard against the desire on the part of some people to obtain patent protection without making a full disclosure as required by the statute. The requirement does not permit inventors to disclose only what they know to be their second-best embodiment, while retaining the best for themselves." https://www.uspto.gov/web/offices/pac/mpep/s2165.html https://www.uspto.gov/web/offices/pac/mpep/s2165.html
- mlyle 5y ago
  Note that all the teeth are gone from best mode, though. You're now "required" to disclose best mode, but don't face invalidation of a patent for failure to disclose best mode.
  - dctoedt 5y ago
    Agreed — but I'd imagine that intentional failure to disclose best mode could still be a basis for an inequitable-conduct holding. (It's been a few years since I did patent work; a quick search in scholar.google.com didn't reveal any case law on point.) And in a close case, in jurors' minds, evidence of a best-mode failure might help tip the balance against validity on other grounds.
hcknwscommenter 5y ago
The very act of providing the product to the market place is a sufficient disclosure of "how to make the thing at all" for anyone with a modest level of skill in this field. Moreover, there are plenty of detailed descriptions in Moderna's patent filings and other publicly available sources on how to make the thing at all. The issue is very much one of scale and I would wager that Moderna doesn't quite have the expertise either to reproduce their manufacturing pipeline at will. I have have personally witnessed a massive project failure in moving a therapeutic molecule from one manufacturing site to another, presumed identically equipped, manufacturing site. These things are not easy. It may be that this South African startup actually cannot use much of the information Moderna has on how to manufacture at scale because it only reproduces in Moderna's hands at Moderna's sites. This would be the expected outcome really.

by gpm 5y ago

JumpCrisscross 5y ago

> the company has not disclosed how to make the thing at all, not just how to make it at scale They’ve also not patented everything, choosing to retain some of the most sensitive techniques as trade secrets. If this persists, we’ll see more pharmaceutical companies taking a Muskian approach to patents.

dctoedt 5y ago

From the USPTO's Manual of Patent Examination Procedure: (quoting the patent statute): "The specification. . . shall set forth the best mode contemplated by the inventor of carrying out his invention." And the Manual's explanation: "The best mode requirement is a safeguard against the desire on the part of some people to obtain patent protection without making a full disclosure as required by the statute. The requirement does not permit inventors to disclose only what they know to be their second-best embodiment, while retaining the best for themselves." https://www.uspto.gov/web/offices/pac/mpep/s2165.html https://www.uspto.gov/web/offices/pac/mpep/s2165.html

mlyle 5y ago
Note that all the teeth are gone from best mode, though. You're now "required" to disclose best mode, but don't face invalidation of a patent for failure to disclose best mode.
- dctoedt 5y ago
  Agreed — but I'd imagine that intentional failure to disclose best mode could still be a basis for an inequitable-conduct holding. (It's been a few years since I did patent work; a quick search in scholar.google.com didn't reveal any case law on point.) And in a close case, in jurors' minds, evidence of a best-mode failure might help tip the balance against validity on other grounds.

hcknwscommenter 5y ago

The very act of providing the product to the market place is a sufficient disclosure of "how to make the thing at all" for anyone with a modest level of skill in this field. Moreover, there are plenty of detailed descriptions in Moderna's patent filings and other publicly available sources on how to make the thing at all. The issue is very much one of scale and I would wager that Moderna doesn't quite have the expertise either to reproduce their manufacturing pipeline at will. I have have personally witnessed a massive project failure in moving a therapeutic molecule from one manufacturing site to another, presumed identically equipped, manufacturing site. These things are not easy. It may be that this South African startup actually cannot use much of the information Moderna has on how to manufacture at scale because it only reproduces in Moderna's hands at Moderna's sites. This would be the expected outcome really.