Stories about nations engaging in vaccine (and medical) nationalism by hoarding limited COVID-19 vaccines and treatments are widespread, but there is a hidden phenomenon that has exacerbated vaccine nationalism and prolonged the pandemic: intellectual property nationalism or “IP nationalism.” This Article coins and explains this term and highlights its negative impacts. Essentially, some nations, primarily of the Global North, are hoarding essential knowledge protected by intellectual property (IP). This Article argues that IP nationalism has contributed to millions of unnecessary deaths and limited the growth of the global economy. Meanwhile, countries and pharmaceutical companies obscure the role of IP nationalism by highlighting red herrings as the alleged main barriers to vaccine access. This Article advocates that countries jettison IP nationalism in favor of a polar-opposite framework--a “global public goods” approach, where IP on essential medical treatments is freely available to all. The global public goods approach goes beyond the (original) waiver of international IP obligations proposed by India and South Africa that simply removes liability. Instead, a global public goods approach would involve actively sharing knowledge on COVID-19 treatments. In most instances, the proposed waiver alone would not facilitate creation of COVID-19 vaccines by new manufacturers. Especially for effective mRNA vaccines, manufacturing involves trade secret processes that are, by definition, secret; a waiver of liability for stealing trade secrets does not grant other companies access to trade secrets. On the other hand, if the trade secrets were considered global public goods and policy makers enacted laws accordingly, then companies would be forced to share them. This approach is consistent with historical policy underlying IP norms, which recognizes that IP exclusivity sometimes needs to yield to other interests such as public health. Recognizing the existence and influence of IP nationalism is an essential first step to better address IP constraints and distortions in the context of public health. This is a timely issue now that the World Health Organization has begun negotiations for a global pandemic treaty, with the *110 goal of being better prepared for inevitable future pandemics. Hopefully, by considering IP on pandemic treatments as global public goods, this treaty could help prevent another global vaccine apartheid. This Article provides concrete suggestions to meet this goal while still ensuring adequate incentives for innovation. Moreover, the Article also recommends complementary modifications to domestic law to similarly promote affordable essential treatments while preserving innovation even in non-pandemic situations.
Cynthia M. Ho, Confronting Intellectual Property Nationalism, 100 DENV. L. REV. 109 (2022).