Planning for Pandemic and Epidemic-Related Scarcity of Medicines

Intellectual Property, COVID-19, and the Next Pandemic: Diagnosing Problems, Developing Cures (Haochen Sun & Madhavi Sunder, eds) (Cambridge University Press 2023 Forthcoming)

Minnesota Legal Studies Research Paper No. 23-25

10 Pages Posted: 9 May 2022 Last revised: 28 Aug 2023

See all articles by Sapna Kumar

Sapna Kumar

University of Minnesota Law School

Ana Santos Rutschman

Villanova University - Charles Widger School of Law

Date Written: April 26, 2022

Abstract

The COVID-19 pandemic has highlighted problems regarding the scarcity of lifesaving medicines. During pandemics and epidemics, a sudden surge in demand for medicines is often unmatched by pharmaceutical companies on the supply side. Moreover, the same intellectual property rights that are supposed to incentivize their creation may also limit governments’ ability to scale up production during times of crisis. Few legal safeguards exist to compel pharmaceutical companies to share the proprietary technology and know-how needed to quickly and efficiently produce needed drugs and other pharmaceutical products. In this chapter, we propose an ex ante approach to tackling such scarcity: Entities funding pandemic- and epidemic-related research should contractually require recipients to produce sufficient quantities of resulting medicines. The recipient would agree in the event of a future shortage to share its technology and know-how with a qualified third-party manufacturer, in exchange for compensation. Alternatively, funding entities could more broadly utilize dormant licenses, which activate in the event of a pandemic or epidemic, and which require rights holders to license out technology and know-how to alleviate shortages. Such provisions could go even further, integrating reasonable pricing assurances and ensuring access in low-income countries. By tying funding to such rights, governments and non- governmental organizations could help reduce shortages, improve global access to medicines, and ultimately save lives.

Keywords: pandemic, epidemic, COVID-19, intellectual property, IP, know-how, access to medicine

Suggested Citation

Kumar, Sapna and Santos Rutschman, Ana, Planning for Pandemic and Epidemic-Related Scarcity of Medicines (April 26, 2022). Intellectual Property, COVID-19, and the Next Pandemic: Diagnosing Problems, Developing Cures (Haochen Sun & Madhavi Sunder, eds) (Cambridge University Press 2023 Forthcoming), Minnesota Legal Studies Research Paper No. 23-25, Available at SSRN: https://ssrn.com/abstract=4101949 or http://dx.doi.org/10.2139/ssrn.4101949

Sapna Kumar (Contact Author)

University of Minnesota Law School ( email )

MN TX
United States

Ana Santos Rutschman

Villanova University - Charles Widger School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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