The Intellectual Property of COVID-19

Forthcoming, Outsmarting Pandemics, Elizabeth Kirley & Deborah Porter (Eds.) (2021)

Saint Louis U. Legal Studies Research Paper No. 2020-28

22 Pages Posted: 12 Oct 2020 Last revised: 13 Oct 2020

See all articles by Ana Santos Rutschman

Ana Santos Rutschman

Saint Louis University - School of Law

Date Written: September 11, 2020

Abstract

The response to COVID-19 is indissolubly tied to intellectual property. In an increasingly globalized world in which infectious disease pathogens travel faster and wider than before, the development of vaccines, treatments and other forms of medical technology has become an integral part of public health preparedness and response frameworks. The development of these technologies, and to a certain extent the allocation and distribution of resulting outputs, is informed by intellectual property regimes. These regimes influence the commitment of R&D resources, shape scientific collaborations and, in some cases, may condition the widespread availability of emerging technologies. As seen throughout this chapter, COVID-19 has exposed the shortcomings of ingrained reliance on intellectual property as a channel for the production and dissemination of medical technologies needed to address the problems posed by pandemics and epidemics. At the same time, COVID-19 has brought new life to countervailing efforts to explore legal and policy mechanisms to potentially offset some of the problems posed by the pervasiveness of, and shortcomings associated with, intellectual property dynamics.

In tracing the dual ways in which intellectual property has affected preparedness for, and the response to, COVID-19, this chapter highlights three features of contemporary intellectual property regimes and examines their impact on innovation(s) needed to address public health crises. First, it explores the incentives function of patent law and policy, which places considerable emphasis on market-driven investment in R&D on medical technologies. In so doing, intellectual property becomes one of the driving forces of the commodification of goods—vaccines, drugs or ventilator parts, for example—which are best understood as public health goods.

Second, the chapter illustrates how intellectual property has reinforced an ethos of siloed R&D, as illustrated by the COVID-19 vaccine race, which at the time of writing includes hundreds of separate vaccine development projects. These siloes further extend into the allocative domain: with the development of medical technologies now largely steeped in proprietary frameworks, several countries have resumed the practice of reserving significant amounts of emerging technologies for their domestic populations, thus curtailing the possibility of equitable transnational approaches to a global public health crisis. This approach is commonly known in the field of vaccines as “vaccine nationalism.” Nationalism skews the distribution of medical technologies developed during a pandemic, reducing opportunities for transnational coordination and potentially limiting access to these technologies by populations in economically disadvantaged parts of the world.

The chapter ends nonetheless on a positive note, as COVID-19 has also made it abundantly clear that the legal infrastructure needed to address many of these problems is already in place. Early in the pandemic, several countries signaled that they would rely on intellectual property mechanisms to ensure broad and equitable access to medical technologies developed during (and possibly after) the pandemic, such as vaccines and treatments for COVID-19. These mechanisms embody different types of commitments to share intellectual property, data and knowledge. At the allocative level, a significant number of countries joined an ad hoc vaccine distribution facility (COVAX) coordinated by Geneva-based international organizations. These efforts, albeit nascent and, in many cases, likely transient nature, constitute meaningful steps towards a better innovation ecosystem for medical technologies needed to prevent and respond to future pandemic.

Keywords: COVID, coronavirus, intellectual property, patents, vaccines, ventilators, 3D printing, World Health Organization, nationalism, COVAX, procurement, patent pools, pledge, COVID Open Pledge

Suggested Citation

Santos Rutschman, Ana, The Intellectual Property of COVID-19 (September 11, 2020). Forthcoming, Outsmarting Pandemics, Elizabeth Kirley & Deborah Porter (Eds.) (2021), Saint Louis U. Legal Studies Research Paper No. 2020-28, Available at SSRN: https://ssrn.com/abstract=3691239 or http://dx.doi.org/10.2139/ssrn.3691239

Ana Santos Rutschman (Contact Author)

Saint Louis University - School of Law ( email )

100 N. Tucker Blvd.
St. Louis, MO 63101
United States

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