… This Article therefore proposes a novel, alternative patent regime, designed to overcome this paradox at the heart of patent law. We propose a mechanism that will eliminate the problem of overprotection of patent rights that exists under current patent law, while still providing sufficient incentive for inventors to invest in innovative efforts. Under our proposed regime, the developer of a new vaccine will be granted a patent protecting its invention, but this patent will expire once the patentee has recouped its investment, plus a handsome profit. This regime, which we term ‘recoupment patent’, ensures that inventors are rewarded appropriately – but not excessively – for their innovative efforts. The result is a structure that encourages innovation while minimizing the time it takes for life-saving inventions to reach the public domain. We compare the proposed regime with other suggestions for reforming the patent system, including compulsory licensing; government incentives such as grants, subsidies, and prizes; and altruistic initiatives such as private-public partnerships, patent pools, and patent pledges. We highlight the recoupment patent model’s advantages over these alternatives.
Miriam Marcowitz-Bitton and Yotam Kaplan, Recalibrating Patent Protection for COVID-19 Vaccines: A Path to Affordable Access and Equitable Distribution, 12 UC Irvine Law Review 423 (2022).