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Excerpted From: Ana Santos Rutschman, The Covid-19 Vaccine Race: Intellectual Property, Collaboration(s), Nationalism and Misinformation, 64 Washington University Journal of Law & Policy 167 (2021) (173 Footnotes) (Full Document)


AnaSantosRutschmanVaccines have long played a crucial role in the prevention, mitigation and eradication of infectious diseases. More than any other recent outbreak, the COVID-19 pandemic has brought the phenomenon of the vaccine race to the forefront of personal, national, and global preoccupations. This symposium contribution examines the early features and takeaways of the COVID-19 vaccine race in four parts. The essay begins by situating the ongoing vaccine race into contemporary frameworks for biopharmaceutical research and development (R&D). Part II examines the role of proprietary and nationalistic modes of vaccine production and distribution, with an emphasis on the effects of patents and pre-production agreements on distributive outcomes of the COVID-19 vaccine race. Part III then turns to emerging efforts to counter overly patent-dependent and nationalistic approaches to vaccine R&D. It describes and assesses the role(s) played by the World Health Organization, as well as public-private partnerships like CEPI (the Coalition for Epidemic Preparedness Innovations) and Gavi, a Geneva-based vaccine procurement organization. Moreover, it offers a case study on COVAX, a quasi-global push and pull mechanism designed during the early stages of the COVID-19 pandemic to promote vaccine affordability and equity. Part IV concludes the essay by looking ahead to the end of the race and pondering the increasingly salient role of vaccine misinformation and disinformation in the uptake of emerging COVID-19 vaccines.

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This essay began by noting that (over)reliance on intellectual property incentives can often lead to underinvestment in vaccine R&D because of limited prospects of return-on-investment. It ends by pointing out that, if adoption of COVID-19 vaccines is low, this might have a detrimental effect on incentives to R&D on other pathogens causing emerging infectious diseases--at least in a world in which patent-driven frameworks remain dominant. Hopefully some of the solutions surveyed in Part III can be further developed and improved upon as we learn from the COVID-19 pandemic and tweak existing preparedness frameworks for upcoming outbreaks of infectious diseases.

Assistant Professor of Law, Saint Louis University School of Law, Center for Health Law Studies, Center for International and Comparative Law. S.J.D., LL.M., Duke Law School.

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