Toward a Distributive Commons in Patent Law
101 Pages Posted: 23 May 2009 Last revised: 28 Mar 2013
Date Written: May 22, 2009
Patents both promote the development of health technologies as well as constrain access to them. Access constraints on patented medicines, diagnostics, and agricultural innovations can severely compromise human health, particularly for low-income populations. To help address this challenge, this Article explores mechanisms for integrating distributive safeguards in the patent system in a manner consistent with strong property rights and private ordering. Finding existing patent doctrine inadequate, this Article examines solutions arising from the developmental histories of particular health technologies. In particular, this Article argues that public institutions, which contribute enormous amounts of "scientific capital" - money, labor, and bodily materials - to life sciences research and development, can effectively leverage these contributions to enhance access to downstream patented technologies.
By providing vital capital, government, academic, and nonprofit entities both weaken the economic need for exclusive rights as well as obtain limited co-ownership stakes in resulting inventions. By exercising this leverage, public institutions are helping to create a "distributive commons" that enhances access to patented health technologies for low-income populations. This Article surveys existing practices, providing prescriptions to address the chilling effects and technical competence concerns that undermine distributive efforts. It concludes by challenging prevailing theoretical preferences for individual rather than communal ownership of property, highlighting the advantages of public-private co-ownership of nonrival resources.
Keywords: patents, biomedical, research, life sciences, pharmaceuticals, diagnostics, agriculture, biotechnology, distributive justice, commons, public institutions, NIH, CIRM, nonprofits, universities, disease advocacy, biobanks, technology transfer, licensing
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