The Central Assumptions of Patent Law: A Response to Ana Santos Rutschman’s IP Preparedness for Outbreak Diseases


Professor Rutschman is right to question whether the patent system is prepared to address the unique challenges posed by outbreak diseases like Ebola and Zika. But her proposed dormant license and her call for increased “preparedness” both imply an optimism that regrettably I cannot share. The patent system’s failures in this setting are foundational. The solution is not to make small, thoughtful improvements at the edges; the solution instead is to recognize that, in this setting, government funding, prize systems, and other innovation-producing mechanisms should fully displace the normally attractive market-based patent regime.

By uclalaw