Outbreaks of infectious diseases will worsen in the coming decades, as illustrated by the recent back-to-back Ebola and Zika epidemics. The development of innovative drugs, especially in the form of vaccines, is key to minimizing the scale and impact of future outbreaks, yet current intellectual property (IP) regimes are ineffective in supporting this goal.
Scholarship has not adequately addressed the role of IP in the development of vaccines for outbreak diseases. This Article fills that void. Through case studies on the recent Ebola and Zika outbreaks, it provides the first descriptive analysis of the role of IP from the pre- to the post-outbreak stages, specifically identifying IP inefficiencies.
The Article concludes that these inefficiencies result in a lack of “IP preparedness” that ultimately weakens our ability to respond effectively to outbreaks. To solve the problem, we need a blend of new and existing legal tools. This Article surveys existing solutions and proposes a new legal mechanism: a dormant license, agreed upon in the pre-outbreak period, that would become active once a public health emergency is declared. This solution addresses transactional IP inefficiencies during the early stages of an outbreak and helps get vaccines to the market more efficiently to save lives.