Resolving the patents paradox in the era of COVID-19 and climate change: Towards a patents taxonomy

Abstract

This paper revisits the patents debate and considers the role of intellectual property rights and their impact on society in the context of inventions designed to protect global common pool resources (CPRs) such as public health and the environment. A review of the theoretical and empirical literature suggests that there has never been a clear consensus among researchers on the benefits of the patent system and intellectual property rights. As Robinson notes, “The patent system introduces some of the greatest of the complexities in the capitalist rules of the game and leads to many anomalies.” We explore these anomalies by specifying a taxonomy of patents for different classes of inventions, including inventions to protect CPRs. This includes vaccines and inventions that reduce externalities, such as, CFC gases and greenhouse gas emissions. In these instances, the effectiveness of innovations depends critically on rapid global diffusion. Our theoretical analysis utilises Ostrom's CPR dilemma to analyse the complexities surrounding innovation and CPRs.We find that the effectiveness of innovations to protect CPRs depends on industrial characteristics and the wider regulatory environment. Empirical evidence is brought to bear on these conclusions via 2 case studies that each embodies a natural experiment; one on vaccines pre- and post-TRIPS and one on environmental technologies to reduce CFC gases and CO2 emissions with and without an agreed UN Protocol. The insights gained are explored in our policy section. Our analysis suggests the need for a more nuanced approach to patent policy that is embedded in the wider context of innovation systems and takes account of the anomalies raised by CPRs. For CPR protecting innovations subject to positive network externalities, we advocate that policy should prioritise diffusion over private incentives for R&D and use alternative policies to patents to stimulate investment in R&D.