Addressing IP and Technology Challenges to Pandemic Protection: A Need for Global Coordination to Promote National Security

This Article argues that effective national security mandates protection against the spread of infectious diseases, which requires addressing intellectual property (IP) and technology obstacles. Without modification, IP laws can bar the manufacture of needed treatments by anyone besides the IP owner and its licensees. Although there was some recognition during the COVID-19 pandemic that existing IP laws should be modified, there was strong resistance not only by IP-owning companies, but also by individual countries that impeded the ability to manufacture needed vaccines during the height of the pandemic. Many global leaders have recognized that future pandemics are inevitable and that a more collaborative approach is necessary to avoid repeating the problems of the COVID pandemic in the future.

Negotiations on a pandemic agreement since 2021 under the auspices of the World Health Organization (VHO) are a concrete manifestation of this realization. Although recognizing a need to change is an important step, not all even agree that IP laws need to be modified for future pandemics. This Article explains how usual IP norms can frustrate public health and national security, why current proposals for a pandemic agreement are largely inadequate, as well as what countries can and should do to protect national security even if there is not adequate consensus for binding obligations in an international pandemic agreement.