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55 Cornell Int'l L.J. 61 (2022)
Patent Philanthropy

handle is hein.journals/cintl55 and id is 65 raw text is: Patent Philanthropy Haochen Sunt As in previous global public health crises, such as the HIV epidemic, patents have presented a major obstacle to vaccine supply amid the devas- tating COVID-19 pandemic. Compulsory licensing and intellectual prop- erty waiver have been put forth as solutions. However, as this Article and other studies reveal, neither proposal alone can address global vaccine ine- quality with sufficient urgency. Nor would these measures significantly improve the capacity of developing countries to produce medicines and vaccines. This Article proposes the establishment of a Patent Philanthropy Initi- ative (PPI) to overcome the inadequacies of compulsory licensing and intel- lectual property waiver and equip the global community with better preparedness for future public health crises. The United States Patent and Trademark Office (USPTO) would be called upon to administer the PPI. Pharmaceutical companies owning USPTO-granted medical patents would be required to contribute 1% of their annual post-tax profits accrued from their patented medicines to the PPI. Such financial contributions would then be deployed by pharmaceutical companies to promote public health in the United States and abroad through transferring knowledge, donating medical products, constructing facilities, training professionals, and facili- tating public health education. This Article defends the validity of the PPI against concerns that it would violate the TRIPS Agreement and the U.S. Constitution and discour- age investment in medical innovation. It illustrates the PPI's economic and social functions in improving the capacity of developing countries to pro- duce pharmaceuticals, and its ethical function in prompting pharmaceuti- cal companies to accept greater responsibility for the protection of public health. These functions are discussed in the context of the COVID-19 pan- demic and beyond. Introduction ..................................................... 62 1. Proposed Solutions....................................... 67 A. Compulsory Licensing ................................ 67 B. Intellectual Property W aiver ........................... 71 C . Sum m ary ............................................. 78 II. The Creation of the PPI .................................. 78 A. Structure of the PPI ................................... 79 1. A ctions............................................ 79 t Professor of Law, University of Hong Kong Faculty of Law. I am grateful to Rochelle Dreyfuss, Jeanne Fromer, Calvin Ho, Peter Lee, Madhavi Sunder, and participants at Georgetown-HKU joint conference on Intellectual Property, COVID-19, and the Next Pandemic for comments. 55 CORNELL INT'L L.J. 61 (2022)

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