Washington Journal of Law, Technology & Arts


Through enormous public support and private initiative, biopharmaceutical firms developed safe and effective COVID-19 vaccines in record time. These remarkable vaccines represent humanity’s best chance to end the devastating pandemic. However, difficult questions about ownership and access have arisen alongside the development and deployment of these vaccines. Biopharmaceutical companies have patented many of the technologies underlying these vaccines, thus seeming to pit intellectual property rights against the objective of wide and rapid dissemination of these critical resources. While prevailing debates have been framed in the language of intellectual property, this Article suggests that contract principles can help break the impasse and expand access to COVID-19 vaccines. This Article explores the significant leverage that governments have in conditioning public research support on increased access to patented vaccines and related technical knowledge. It also questions whether biopharmaceutical firms have upheld their end of the patent quid pro quo by adequately disclosing their technologies in exchange for exclusive rights. Finally, it considers how changed circumstances justify modifying the bargain that developed and developing countries struck in strengthening global intellectual property standards. In a variety of ways, governments can leverage public funding, quid pro quos, and changed circumstances to increase access to patented vaccines, thus helping to improve health and welfare on a massive scale.

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