Negative-Emission Technologies and Patent Rights after COVID-19

Governmental and particularly private funding has recently and dramatically expanded for both beccs and dac technologies. This funding and the associated research, development, and deployment efforts will generate intellectual property rights, particularly patent rights in nets. As with access to medicines, the COVID-19 pandemic has highlighted concerns that patent rights may incentivize RD&D at the cost of affordable access to the relevant technologies. Further, access may be restricted to particular countries based on sovereignty concerns to seek preferential supply agreements through up-front funding. As a result, nations will likely turn to controversial ex-post measures, such as compulsory licensing, to assure access and to control prices of the needed technologies. The same concerns with patent rights likely will affect RD&D of nets. Although international ex-ante measures exist (such as patent pools) which would help to minimize these concerns, such measures may not induce the requisite voluntary contributions, or may fail to materialize due to political disagreements. Focusing on both US law and international developments, this article proposes various ex-ante measures that can be adopted by national governments and private funders to minimize the likely forthcoming worldwide conflicts that will arise over balancing innovation incentives for, and affordable access to, patented nets.

Facilitating Access to Cross-Border Supplies of Patented Pharmaceuticals: The Case of the COVID-19 Pandemic

ABSTRACT The COVID-19 pandemic has brought into stark relief the gaps in global preparedness to address widespread outbreaks of deadly viral infections. This article proposes legal mechanisms for addressing critical issues facing the international community in terms of providing equitable access to vaccines, treatments, diagnostics, and medical equipment. On the supply side, the authors propose the establishment of mandatory patent pools (‘Licensing Facilities’) on a global or regional, or even national basis, depending upon the degree of cooperation that may be achieved. The authors also discuss the importance of creating shared production facilities. On the demand side, the authors propose the establishment of Regional Pharmaceutical Supply Centers (RPSCs) for the collective procurement of products, and the need to coordinate the issuance of necessary compulsory licenses for production and/or importation, depending on relevant circumstances. The authors envisage that centralized coordination by RPSCs should assist in overcoming difficulties individual countries may encounter in addressing administrative and technical issues in procuring supplies, as well as creating improved bargaining leverage with potential suppliers. The authors finally address the problem created by the decision of various high-income countries to ‘opt out’ as eligible importing countries under the World Trade Organization TRIPS Agreement Article 31bis amendment that addresses the predominant export of pharmaceutical products under compulsory licenses.

Bundling for Flexibility and Variety: An Economic Model for Multiproducer Value Aggregation

Many markets feature an economic structure in which value is cocreated by multiple producers and aggregated into a common bundle by a producer-consortium or independent firm. Examples include in-home video entertainment, technology goods and services, multisourced data platforms, and patent pools. This paper develops an economic model to study demand, production choices, revenue sharing, and relative market power in such markets. Producers in these markets are not rivalrous competitors in the usual zero-sum sense, because output of each casts an externality on production decisions of others and total market demand expands with total output, albeit with diminishing returns. This property allows multiple producers to flourish in equilibrium (versus just one with the most favorable technological or cost structure), and more so when the market expands less quickly with total output. Equilibrium production quantities of competitors are strategic complements, yet competition between producers does manifest itself, for example, if one acquires better production technology (i.e., makes value units at lower cost) then the equilibrium production levels of other producers are reduced. Insights are also derived for alternative market structures, for example, producers have more output and earn higher profit when organized into a distribution consortium (e.g., Hulu or consortia of zoos or museums) versus relying on a separate retailer. Mergers between producers have similar effect. The formulation enables us to rigorously answer economic questions ranging from pricing, revenue sharing, and production levels in a static setting, to market dynamics covering both the causes and effects of changes in industry structure. This paper was accepted by Chris Forman, information systems.