Brooklyn Law Review


Epidemics have devastated humankind for centuries. Given the simultaneous rise of advanced disease prevention and treatment and the great potential for mass public uptake, it is unsurprising that the U.S. pharmaceutical industry has grown to $775 billion in annual sales revenue. It is clear that the commercialization of important public health measures is not without controversy. Of particular debate is that vaccine and other drug manufacturers monopolize their products and control them through patent laws. Yet there is a strong dichotomy between the importance of patents and the need for public access to innovations. This is not to say that patents do not have a place in public health, but patents have the potential to bar necessary access to life-saving therapies. And existing patent infringement defenses are not sufficient to account for infringements for the public good. Copyright law offers a unique solution to the problems faced with existing patent infringement defenses during public health crises. The fair use defense in copyright law is an attractive starting point for public health applications of patent law. This note argues for the imposition of a limited statutory fair use defense, coupled with reasonable compensation, for patented public health measures during times of public health crisis. A narrow fair use defense grounded in statute would have lasting impacts on public health, paving a pathway for necessary and timely distribution of patented public health measures.