The Intellectual Property of Vaccines: Takeaways From Recent Infectious Disease Outbreaks

Abstract

In late 2019 and early 2020, a new strain of coronavirus, a family of pathogens causing serious respiratory illness, began infecting populations across the globe. A quick uptick in COVID-19, the disease caused by the novel pathogen, prompted the World Health Organization to declare the outbreak a Public Health Emergency of International Concern on January 30, 2020. By mid-February 2020, with 26 countries reporting cases of COVID-19 infection, the global case count had surpassed 50,000, and had resulted in over 1,500 deaths. The World Health Organization elevated the status of the outbreak to a pandemic in mid-March. As of early April 2020, the number of countries with reported cases of COVID-19 infection has grown to over 175, with the global case count surpassing 1.9 million and deaths nearing 120,000. No vaccine is available at this point, nor is one likely to become available for months, if not years, to come. Yet, as soon as the seriousness of COVID-19 infection became apparent, several research institutions—pharmaceutical companies, public-private partnerships, and governmental actors—announced funding for, and immediate work on, the development of vaccines targeting COVID-19. Using examples drawn from the current vaccine-development landscape, this Essay explores the ways in which law and policy have been designed to support the development and commercialization of new vaccines and how they often fail to achieve that goal. In Part I, the Essay focuses on the default regime aimed at spurring biopharmaceutical innovation—the patent sys-tem—and describes the misalignment between patent-based incentives to R&D and the characteristics of markets for vaccines targeting infectious dis-eases like the novel coronavirus, Zika, and Ebola. In Part II, the Essay analyzes an emerging solution for the current incentives problem in the field of vaccines: the growing role of newly created public-private partnerships working directly and solely in the vaccine R&D space.