Published December 12, 2022 | Version v1
Thesis Restricted

Can you patent the sun? The Covid-SARS-19 as a chance to rethink the relationship between Intellectual Property and Commons


This work argues that the Covid-19 vaccine should be considered as a Commons, something that is managed and owned by the public at large, and not as private property – exclusivity - of pharmaceutical companies. 
The reasons of such a strong argument – in particular the conspicuous public funding contribution and the search for a human and equity-oriented Global Health Security - are investigated in this work through a methodological approach which analyzes legislation, case-law and secondary sources, mostly in relation to the United States and the European Union, but also focusing on the international community as a whole. 
Although there are different forms of intellectual property, the main focus of this work is on patents and, in a smaller part, trade secrets, considering that these are the main instruments through which pharmaceuticals, such as vaccines, are protected. It is true that, from a legal perspective, vaccines can be patented, leading to questionable practices in the pharmaceutical industry, such as patent thickets and strategic accumulations, and they can be covered by trade secrets, whose owners do not seem inclined to consider the disclosure as an option, even when this would benefit the public at large. 
However, an alternative path, which would result in the theorization of a Commons for the vaccine, can be pursued. Indeed, it is noted that this invention would satisfy the two requirements that every Commons should have to be defined as such: being potentially owned in a private way; being managed more efficiently by the public at large. 
In particular, considering that the actual types of Commons in the intellectual property law field - the public domain, exceptions/limitations to patents, or open innovation instruments such as IP pledges – present some issues in relation to enforceability, this dissertation, building on the work of the author Dusollier, advances the idea that from the inclusivity, which is the typical feature of every Commons, an inclusive right can be envisaged and applied in the context of the vaccine, while rethinking the relationship between intellectual property and Commons. Although this is - for now - a theoretical speculation without proper legal grounds, it can provide inputs to the current discussion about the waiver of IP rights that has been proposed at the WTO level and has been already the object of attention of the civil society at large.
This dissertation has been awarded by AISA (Italian Association for the promotion of Open Science) as one of the Outstanding Dissertations in the Open Science field written in the years 2020, 2021 and 2022. 


This dissertation is dated December 2021.



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