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The company ASML Holding N.V. is, quote Wikipedia: "the sole supplier of extreme ultraviolet lithography (EUV) photolithography machines in the world"

This means that ASML has a monopolistic position in the global semiconductor / computer chips supply chain.

If Intel wants to step up manufacturing of computer chips, in response to the global chips shortage, it must buy equipment from ASML. There is no other way.

However, ASML's EUV manufacturing capacity is already at a maximum.

If Intel were to request ASML to allow Intel to manufacture more of those EUV machines at Intel's manufacturing facilities, assuming no technical barriers, does ASML have an obligation to agree?

In general, if a patent holder holds the patent to a world-impacting monopolistic technology, does the patent holder have an obligation to ensure that such technology and the products of such technology is always able to meet market demand?

Furthermore, is there any limit on the profit margins that a patent holder is allowed to make?

Assuming that Pfizer is the only company that has the patent to the manufacturing of a COVID-19 vaccine of reasonable effectiveness. Pfizer's accounts department, after running the numbers through their computers, come to the conclusion that in order to maximize profits, they should limit the supply of the vaccines and sell the vaccines at a cost of 1 million US dollars per dose. What would be the consequences of such a move? Assuming everything is done by the book. No mass riots, no assassinations, no extra-legal sanctions.

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    EUV is the best one to make chips in the 7nm process. But there are a lot of sectors where chips in such process are not necessary. There are still on the market lot chips made in 14nm, 22nm and even thicker. Especially in the Automotive sector 7nm are not necessary. So ASML technology is not a monopoly.
    – FluidCode
    Mar 26, 2022 at 12:42
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    The case of Pfizer vaccine is an extreme case of conflict between etics and the way the economy works in today world. I would not apply flatly such extreme case to all the others.
    – FluidCode
    Mar 26, 2022 at 12:49
  • If you let your technologies to be included in a standard then there is an obligation to make i available, but only in that case. en.wikipedia.org/wiki/…
    – FluidCode
    Mar 26, 2022 at 12:52
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    @FluidCode I was wondering why "Reasonable and non-discriminatory licensing" is not legislated into patent law so as to be part of the terms and conditions of granting a patent in the first place? Between the Intel and Pfizer examples, there is a huge grey area. In fact, the global chip shortage is on the way to becoming a humantarian issue. So is the patenting of seeds by Bayer and Monsanto and its impact on the global commodities shortage.
    – defykade
    Mar 26, 2022 at 18:12
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    "In fact, the global chip shortage is on the way to becoming a humantarian issue." This is absurd.
    – FluidCode
    Mar 26, 2022 at 19:01

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In the US, a patent holder has no obligation at all to use their patent. They can charge as much for their patented product as they want, and if there are no alternatives then they're in a pretty good market position. If Intel wants to make more microchips and ASML won't sell them the tools they need, Intel just has to offer more money. It's a monopoly, but that's the whole reason patents exist: giving inventors a monopoly on their inventions in exchange for publishing how they work. There is such a thing as using a patent anticompetitively, but it takes a lot more than charging a high price.

Your Pfizer example runs up against one of the limits of patents, though. Patents are a government-supported monopoly, and they're only useful as long as the government keeps supporting them. A government has the sovereign power to say "we're not going to enforce this patent." If the company has facilities in that country, the government even has the power to say "you must manufacture more of this product."

This is rare. Most countries are subject to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which says they will provide a patent system that's also available to foreigners. But TRIPS allows countries to authorize the unlicensed use of patents to supply their domestic market under appropriate circumstances. The patent owner still has to be paid a fair amount, but the patent isn't ironclad. Countries can also issue compulsory patent licenses to produce drugs for export to other countries, again under appropriate circumstances. You could also have an ad hoc agreement between WTO members to make new TRIPS rules for something. This last option was actually discussed to waive COVID-19 vaccine protection worldwide, although it didn't end up happening. If Pfizer was charging $1,000,000 per dose, it probably would have happened.

As was said in the comments, the Pfizer example was extreme. If Intel can't expand chip production because of ASML's patent, that's basically a commercial problem and should be solved by paying ASML more money. If people can't get COVID vaccines because Pfizer charges too much, that's a humanitarian problem and can be solved through government intervention.

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    I was wondering why "Reasonable and non-discriminatory licensing" is not legislated into patent law so as to be part of the terms and conditions of granting a patent in the first place? Between the Intel and Pfizer examples, there is a huge grey area. In fact, the global chip shortage is on the way to becoming a humantarian issue. So is the patenting of seeds by Bayer and Monsanto and its impact on the global commodities shortage.
    – defykade
    Mar 26, 2022 at 18:07
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    @defykade Legislatures could include such provisions in patent law. They have chosen not to. Why they have so chosen and whether they are likely to change this decision is a political question, and would be on-topic at Politics.SE, but is off-topic here on Law.SE
    – David Siegel
    Mar 26, 2022 at 18:16
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    @defykade - the point of patents is to encourage invention. Inventions are encouraged by giving a temporary monopoly. Requirements to license as you suggest would reduce the incentive to invent. If there is not enough profit potential to develop humanitarian products they will not be developed and no one will get any benefit.
    – George White
    Mar 26, 2022 at 20:39
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    @kisspuska IIRC, Pharma Bro was ultimately jailed on charges completely unrelated to jacking up drug prices. It’s more an example of “if you’ve committed a crime and haven’t been caught, don’t make yourself the most hated person in the entire country.” (Also, IIRC those drugs were already generics, there was just only one company that actually produced them.)
    – cpast
    Mar 27, 2022 at 0:02
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    Defykade: chip shortages have nothing to do with patent licensing. A big factor was the car industry trying to save some money and not understanding how chips are produced. And not understanding that they are a small buyer.
    – gnasher729
    Mar 27, 2022 at 9:21
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No, of course not. That's so clearly the point, I suggest the Question belongs not in SE Law, but some forum dealing with ethics, morality or philosophy.

Either way, patents exist to help their holders exploit whatever it is, without sharing.

Any obligation "to make their patents available…" would negate that principle, to its own extent. How is that not obvious?

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    "patents exist to help their holders exploit whatever it is, without sharing." That is not quite correct.In return for a legal monopoly during the term of the patent, holders must disclose the details so that others can build on them at once, and so that all can use the patent freely once it has expired. That is a form of sharing, although not the form the OP asked about. Also, in some cases laws have imposed compulsory licenses on certain kinds of patents. That was considered in the case of the COVID vaccine patents.
    – David Siegel
    Mar 27, 2022 at 18:45
  • @David If that's wholly true, isn't it still largely irrelevant? If you're saying "make their patents available" might be unclear, I wholly agree…
    – Robbie Goodwin
    Mar 27, 2022 at 18:58
  • It is largely irrelevant to the specific question the OP asked, (which is why I didn't downvote) but IMO the general principle is important. Patent holders must share their discoveries in significant ways, but not in the way the OP asked about, except when a specific law imposes compulsory licenses. Note that an inventor can avoid such sharing by keeping a discovery as a trade secret (which would not expire) instead of taking out a patent. Disclosure in return for limited monopoly is the patent bargain.
    – David Siegel
    Mar 27, 2022 at 19:06
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    @DavidSiegel "Largely irrelevant" being the operative term, no? Can you accept that first, "patents exist to help their holders exploit whatever it is…" and in and of itself, that cover the whole are for most people? That patent holders are protected from the worst excesses of sharing their knowledge does not give them any duty to share. If you think patent holders do have a duty share anything, why not cite an authority and jurisdiction?
    – Robbie Goodwin
    Mar 27, 2022 at 19:19
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    No I do not agree that "patents exist to help their holders". The US constitutional justification for having patents at all is "to promote the progress of science and the useful arts." Patent owners have no duty to allow others to license their patents, free or at all. Patent owners do have a duty to share by disclosing their discoveries so that others can make use of the ideas without infringing the patent, and so that they can later be used freely. That inducement to disclosure is the primary purpose of patents. Only if by "share" you mean solely "grant licenses" is your statement correct.
    – David Siegel
    Mar 27, 2022 at 19:29

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