Patents are not the constraint!

vaccine patents

There’s been a lot of public outcry about patents for the COVID vaccine. About how the US needs to forcibly waive IP rights of the pharma companies. As the rationale goes, this will help other countries manufacture the vaccines faster, and help us defeat COVID-19.

Sorry folks, but this is a waste of time.

Yes, there are things we can do (and we are morally obligated to do) to save millions of lives. But waiving vaccine IP is – quite fundamentally – not one of those things.

Revisiting the Theory of Constraints.

I wrote about the Theory of Constraints in The Grand Unified Theory of Management.

The Theory of Constraints is a set of three simple statements, in a tightly connected chain of logic:

#1: Every system has one bottleneck tighter than all the others.

A limiting factor more limiting than the others. A weakest link in the chain.

#2: The performance of the system as a whole is limited by the output of this one bottleneck.

If you increase the throughput of this one bottleneck, the throughput of the entire system increases.

#3: Therefore, the only way to improve the performance of the system is to improve the output at the bottleneck.

What does this mean? It means that any improvement not at the constraint is an illusion. For the same reason there’s no way to strengthen a chain without strengthening its weakest link.

You can do your best to increase capacity of all the non-bottleneck steps. Or, when you realize there’s actually excess capacity at all these steps (by definition – when the bottleneck is at full capacity, all other steps have excess capacity) you can do your best to fill them up.

But it will make no damn difference at all.

Stated even more simply, this is the Theory of Constraints:

Any system with a goal has one limit. Worrying about anything other than that limit is a waste of resources.

So, is Vaccine IP the bottleneck to worry about?

To answer this question, we must first ask another one. “If we open-source the vaccine patents, will it increase the near-term supply of vaccines to the world?”

Unfortunately, it won’t. Because the critical constraint, the “rate limiting step”, is elsewhere.

Derek Lowe talks about the real manufacturing bottlenecks, in Waiving IP:

An obvious first problem is hardware: you need specific sorts of cell culture tanks for the adenovirus vaccines, and the right kind of filtration apparatus for both the mRNA and adenovirus ones… A good proportion of the world’s supply of such hardware is already producing the vaccines, to the best of my knowledge.

Second, you need some key consumable equipment to go along with the hardware. Cell culture bags have been a limiting step for the Novavax subunit vaccine, as have the actual filtration membranes needed for it and others. These are not in short supply because of patents, and waiving vaccine patents will not make them appear.

Third, you need some key reagents. Among others, there’s an “end-capping” enzyme that has been a supply constraint, and there are the lipids needed for the mRNA nanoparticles, for those two vaccines. Those lipids are indeed proprietary, but their synthesis is also subject to physical constraints that have nothing to do with patent rights, such as the availability of the ultimate starting materials…

Fourth, for all these processes, there is a shortage of actual people to make the tech transfer work… Moderna, for one, has said that a limiting factor in their tech-transfer efforts is that they simply do not have enough trained people to go around.

Don’t believe me? Moderna has open-sourced its patents, and committed that it won’t enforce them. So where’s my generic mRNA vaccine?

Pharma patents spell out everything you need to create the vaccine. The “recipe” is online, there are no “secrets”. Why then are China and India not producing them? Did they suddenly develop “scruples”, in the most urgent crisis of our time?

Astra Zeneca, Novavax, J&J, and others have licensed their technology to other manufacturers (albeit not for free). Why are these other players struggling to manufacture enough?

Taking one more step back: forget COVID vaccines. Why is even manufacturing of generics and other vaccines concentrated in a few countries? India manufactures 60% of all vaccines. Why do other countries not manufacture their own?

Maybe, just maybe, patents are not the constraint?

Say it with me:

Any improvement not at the constraint. Is. An. Illusion.

What is the bottleneck then?

I’m not an expert, but these are four prime candidates (from Alex Tabarrok’s Patents are Not the Problem!:

  • Raw material availability. If there’s anything we need public outcry on, it’s this. The US has been hoarding raw materials, crippling global vaccine manufacturing capacity.
  • Manufacturing capacity. This one will be harder to resolve in the medium-term.
  • Supply Chains.
  • Plastic bags. Yes, plastic bags are a bigger constraint than patents.

Once we resolve the above manufacturing bottlenecks, a new one will likely crop up – people’s ability to pay for the vaccine.

So let’s think about that.

How do we make vaccines cheap enough for everyone?

This is not yet the constraint, but it could be once there’s enough vaccines to go around. So how do we make them accessible?

There is an economic cost to producing these vaccines. Raw materials, capital equipment, manpower, and yes, licenses too. Who bears the cost?

It’s very easy to say, “these big pharma cos are evil capitalist profiteers”. Pfizer, for instance, expects to make USD 26B in sales (not profits, mind) on the vaccines.

But the question to ask isn’t, “How are pharma cos allowed to make so much money?”

The question to ask is, “USD 26 Billion? That’s all?!”

The economic cost of COVID-19 in the US alone is USD 16.2 trillion. The Economist says the GDP impact on the world will be USD 10 trillion+. Long-term health impairment and deaths will be over and above that.

And there are tons of other risks to worry about – geopolitical, societal, etc.

So, the right question to ask is this: “If the cost of not vaccinating is 1000x the cost of vaccinating, then why aren’t governments stepping up and making vaccines free?”

“But Jitha, some governments can’t afford it!”

Red herring. What they can’t afford, is the cost of not vaccinating, which is 1000x more. But they’re paying that cost anyway.

Let me put it more bluntly. The cost of a vaccine is much lower than the cost of an oxygen concentrator. Sometimes, it is that simple a tradeoff.

Governments of the world: Stop making people and pharma cos pay for the vaccine. Do it yourself – it’s an amazing deal. The best deal you’re getting this year. Hell, it’s even better than buying bitcoin for your treasury.

Counterfactual – what if vaccine patents did eventually become the bottleneck?

I don’t think vaccine IP will become the bottleneck for the next two years at least. But let’s say I’m wrong. If it does, then does waiving the IP make sense?

A cardinal principle of economics is: Don’t silence prices in order to transfer incomes. (link)

Don’t steal the patents from pharma cos and destroy their incentives. Remember, they are among our heroes of the pandemic. They’ve developed vaccines at unbelievable speed.

I won’t even go into the logic of it.

I won’t talk about how Moderna wouldn’t even have existed as a loss-making company for so many years, investing in mRNA tech, if it weren’t for the potential returns on investment from a market system.

I won’t talk about how this incentive is all that’s needed, for pharma cos to take risks. Governments don’t have to compensate Sanofi, Merck, etc. for their failed vaccine efforts.

No, please don’t steal the patents and leave us unarmed for the next pandemic.

Instead, buy out the patents and then open them up. As Caleb Watney says in How the US can solve the global vaccine shortfall, the US government can and should buy out the patents of the pharma companies. And then open them up to the world.

Why should they do it? Again, because it’s such an amazing good deal!

Pay USD 100 billion, and save USD 16 trillion. 160x return. Really? We’re even debating this?


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The Grand Unified Theory of Management

Theory of Constraints

The Theory of Constraints is the closest we have to a Grand Unified Theory of Management. It cuts straight to the problems that matter, be it in business or your personal life.

It’s a simple statement:

Any system with a goal has one limit. Worrying about anything other than that limit is a waste of resources.

Eli Goldratt propounded it in his 1984 book, The Goal, as a series of observations on assembly line manufacturing. But it applies to nearly everything.

Why is it so powerful?

Three Easy Pieces

The Theory of Constraints is a set of three simple statements, in a tightly connected chain of logic:

#1: Every system has one bottleneck tighter than all the others.

A limiting factor more limiting than the others. A weakest link in the chain.

#2: The performance of the system as a whole is limited by the output of this one bottleneck.

If you increase the throughput of this one bottleneck, the throughput of the entire system increases.

#3: Therefore, the only way to improve the performance of the system is to improve the output at the bottleneck.

What does this mean? It means that any improvement not at the constraint is an illusion. For the same reason there’s no way to strengthen a chain without strengthening its weakest link.

You can do your best to increase capacity of all the non-bottleneck steps. Or, when you realize there’s actually excess capacity at all these steps (by definition – when the bottleneck is at full capacity, all other steps have excess capacity) you can do your best to fill them up.

But it will make no damn difference at all.

Stated even more simply, this is the Theory of Constraints:

Any system with a goal has one limit. Worrying about anything other than that limit is a waste of resources.


Theory of constraints - Summary

So, solving any problem is a series of three simple (but not easy) steps:

  • Step 1: Identify the current most limiting factor.
  • Step 2: Identify the most obvious way to improve this limit, and implement it.
  • Step 3: Go back to Step 1. Because there will be a new limiting factor. There is always one limiting factor.

Why do we not do this totally obvious thing?

When your business struggles to deliver its output, or you struggle to lose weight despite all your attempts – it’s usually because of one of three reasons:

Solving the wrong limit:

You’re hiring more capacity in the sales team to get more deals. But the constraint is really in the delivery team.

In the weight loss domain: you’re cutting calories, when the issue is that you’re stressed and cortisol is wrecking havoc with your body.

Solving yesterday’s limit:

This is a little like army generals who fight the last war.

Yes, sales was the constraint 6 months ago, and so you decided to hire 3 people. But it’s no longer the limiting factor after you got one person.

Once a limit is removed, doing more of it just won’t help.

As Taylor Pearson says in his article, “what got you here won’t get you there”. What gets a business off the ground is not what keeps it in the air.

Not realizing when the limiting factor has changed:

By focusing the entire team on sales proposals, guess what, delivery is suffering. So now inflow of business is no longer the limit. It’s actually servicing that business.

But you don’t realize it until 3 months from now, when the clients don’t renew.

There’s a meta-reason too.

There’s a meta-reason too, which causes us to make these errors.

Seeing something that’s hard to solve, we decide to solve something easier.

A great example of this is the classic Bike-Shed Effect, or the law of triviality.

From Wikipedia:

Parkinson provides the example of a fictional committee whose job was to approve the plans for a nuclear power plant spending the majority of its time on discussions about relatively minor but easy-to-grasp issues, such as what materials to use for the staff bike shed, while neglecting the proposed design of the plant itself, which is far more important and a far more difficult and complex task.

The example is fictional. But we’ve all seen it.

Like spending a company leadership meeting discussing how to increase profits by reducing employee per diems. Instead of the real strategic choices to navigate a recession. (I’ve seen this).

Sometimes it’s almost too banal.

We start the meeting saying, “there are 4 topics to discuss today. Let’s do the easiest 3 topics quickly, and then devote some time to the thorny one”. Well, guess what, you spend 25 min on the easy topics (Parkinson’s Principle – work expands to fill the time you give to it). And then the next 5 min scheduling a follow-up to discuss the thorny issue.

OK, I’m being a little unfair. Because this stuff is HARD. We want to make progress. It boosts our self-esteem, among other things. And ticking a box “DONE” feels like progress. Even when it isn’t.

At other times, this mistake is almost invisible. It looks like more legitimate progress.

I used to run a consumer internet startup in India. An app called Smart Saver, where people could upload receipts from their grocery purchases, to get cashbacks.

During our initial days, my team and I brainstormed and built a lot of features to keep people on the app. Including both mechanisms (do xyz tasks to earn more cashback) and content (giving cashbacks for brands we hadn’t yet partnered with), etc.

But any progress on this was an illusion.

As a small app with 20K users at that time, the main constraint wasn’t retaining those 20K users. It was a constraint, yes. But it wasn’t the critical one.

The critical constraint was going from 20K → 200K users.

Any cool features we were building would solve only the less-important constraint.

But it was actually worse than that. Onboarding funnels themselves are leaky. So, any down-funnel feature would be seen only by a proportion of the users who installed the app. The rest would have dropped out of the funnel at the top! So, our cool and nifty features would be seen only by a small proportion of the miniscule 20K users we had!

I wrote about this in Drunkards and Streetlights:

We brainstorm and build cool new features for our apps, when the onboarding funnel itself is leaky. Andrew Chen calls this the next feature fallacy….

for most of a startup’s life (after Product/market fit, but before it becomes a Facebook), the top of the funnel (i.e., how you get new users) is the biggest constraint.

And any improvement not at the biggest constraint is an illusion. For the same reason there’s no way to strengthen a chain without strengthening its weakest link.

We realized this 6 months in. We started focusing our efforts solely on that critical constraint – building our user base and onboarding flow.

We did get to 300K users. And then we hit a different critical constraint, one that we couldn’t solve. Another story for another day.

Any progress not at the constraint is a trick you’re playing on yourself.

I’ve been angel investing in startups for the last 3+ years, with middling success. It was only recently (after a 10x exit, as it happens), that I realized the critical constraint. The structure of angel investing itself.

Until I solve for that (work in progress), I won’t be more successful.

I wrote about this as well in Drunkards and Streetlights:

…the hardest part is finding the best companies.

Even if you’re almost psychic at picking winners, you can only pick winners among the startups you see (i.e., under your streetlight).

And in a power law world (which the world of startups certainly is), one startup makes all the difference. What if it’s one you just missed investing in? That one networking dinner you missed. That one week you were on holiday. The unicorn is just 5m away from your streetlight, but completely in the dark.

And it doesn’t end there. Even if you do find tomorrow’s billion dollar company, so will other, bigger institutional investors. And they will have no remorse muscling you out, as Paige Craig found out with Airbnb….

But let’s say you clear this hurdle as well. …What happens then?

Congratulations. You get muscled out in the next big round. This happened to me and OperatorVC.

OK then. So what do we do?

A cliche (or two) is a good place to start.

First, take a step back.

It’s important to see the larger picture. And you can’t do that when you’re busy solving a problem in some tiny nook of your system.

Next, make a list.

Step #1: Define your objective function: What is the definition of “victory” here?

This may sound trivial, but it isn’t. Far too often, you realize that you (and your team) might not be optimizing for the truly important stuff.

Step #2: Make a list of all the factors that will help you achieve this victory. Be as detailed (or not) as you want.

Important to think broad enough.

If your objective function is “Improving profitability”, just listing all the cost heads isn’t enough.

Far too often, the biggest factor driving (or constraining) profitability is revenue. There’s a limit to how much you can cut, but no limit to how much you can earn.

Similarly, the environment often plays a disproportionate role, but we ignore it. For example, the biggest constraint on your productivity is often in the environment, rather than in your process.

Step #3: Identify the most critical constraint.

This is deceptive. Sometimes the most critical constraint is obvious. At other times, it isn’t.

It helps to ask, for each of the factors listed: “If I make a 20% improvement in this element, will it drive a 20% improvement in the overall outcome?”

That’ll get you thinking. “Yes, improving the efficiency of the finishing machine will help! Oh, but wait a sec – actually then it’ll just bunch up at quality control.”

Remember – at any time, there’s always ONE constraint that’s more critical than others.

Step #4: Fix the critical constraint, and then go back to Step 3 (now there’ll be a new most critical constraint).

A couple of examples.

Taylor Pearson has a great example from business, in his article: Business Strategy: A Framework for Growing Any Business.

Start with the four big heads, and see which is a bottleneck. e.g., Let’s say it’s Personal operations. Then you dive in, and figure out which sub-head is causing the problem. And then you solve for that. Repeat.

This is also something I faced when I was trying to increase my writing throughput.

I used to feel that I’m not reading enough, and that was hampering my writing (due to inadequate source material).

But when I thought about it (and looked at my notes), I realized that I was actually reading enough. It’s just that I wasn’t processing the notes fast enough. i.e., that’s the bottleneck I need to solve for.

Therefore, now, whether or not I read any new articles / books, I reflect and write everyday.

Soon, the bottleneck might shift back to the top of the funnel. I’ll be ready.


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