Patents both promote the development of "health technologies" as
well as constrain access to them. Constrained access to medicines,
diagnostic agents, and agricultural innovations can severely compromise
human well-being, disproportionately impacting low-income populations.
To help address this challenge, this Article explores mechanisms for
integrating distributive safeguards in the patent system in a manner
consistent with strong property rights and private ordering. Finding existing
patent doctrine inadequate, this Article identifies solutions arising from the
developmental histories of particular health technologies. In particular, this
Article argues that public institutions, which contribute enormous amounts
of "scientific capital"-money, labor, and bodily materials-to life sciences
research, can effectively leverage these contributions to enhance access to
downstream patented technologies.
By providing vital scientific capital, government, academic, and
nonprofit entities both weaken the economic need for exclusive rights as
well as obtain limited co-ownership stakes in resulting inventions. By
exercising this leverage, public institutions are helping to create a
"distributive commons" that enhances access to patented health technologies
for low-income populations. This Article surveys existing practices,
providing prescriptions to address the chilling effects and technical
competence limitations that threaten distributive efforts. It concludes by
challenging prevailing theoretical preferences for individual rather than
communal ownership of property, highlighting the advantages of publicprivate co-ownership of nonrival resources.
