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Unpublished Paper
Toward a Distributive Commons in Patent Law
ExpressO (2009)
  • Peter Lee

While patents provide incentives to invent and develop new inventions, they can constrain access to vital health technologies such as medicines, diagnostics, and nutritional innovations. These access constraints can severely compromise human health, particularly for low-income populations, and have elicited severe criticism. Against this seemingly intractable background, this Article explores methods for integrating distributive values in the patent system while remaining sensitive to property rights and private ordering. Rather than look inward to existing patent doctrine, this Article finds solutions in the political economy of life sciences research. In particular, this Article argues that public institutions, which contribute enormous amounts of “scientific capital” to patented health technologies, can effectively leverage their contributions to limit the exclusive rights of downstream patentees. In doing so, they can create a limited “distributive commons” that provides enhanced access to health technologies for low-income populations.

This model reflects a fundamental quid pro quo: by providing valuable scientific capital, public institutions both weaken the economic need for exclusive rights as well as obtain limited co-ownership stakes in resulting inventions. This Article examines practices by federal and state governments, nonprofit foundations, universities, and disease advocacy groups, providing prescriptions for addressing the incentives effects and technical competence concerns that represent the primary challenges to limiting exclusive rights. The Article concludes by considering the implications of these developments for property and intellectual property theory, highlighting the advantages of a public-private tenancy in common for health technologies.

  • patent law,
  • health policy,
  • distributive justice,
  • infrastructure,
  • scientific capital
Publication Date
February 16, 2009
Citation Information
Peter Lee. "Toward a Distributive Commons in Patent Law" ExpressO (2009)
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