Intellectual Property

Article

Law for the Next Pandemic

The Need for Tort Law Necessity Defense in Intellectual Property Law

Yaniv Heled

Associate Professor, Georgia State University College of Law; J.S.D. 2011, LL.M. 2004 Columbia Law School; LL.B. 2000, Undergraduate Diploma in Biology 2000 Tel Aviv University.

Ana Santos Rutschman

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

Liza Vertinsky

Associate Professor, Emory Law School; Ph.D. (econ.) 1997, J.D. 1997 Harvard University; M.A. (econ.) 1992 University of British Columbia; B.A. 1991 Oxford University.

We are grateful to Timothy Lytton for comments on an earlier version of the essay. We also thank Cynthia Ho, Christa Laser, Rachel Sachs, Sean Tu, Ofer Tur-Sinai and participants at the 2021 WIPIP Conference for their comments and suggestions. We are also grateful to Lane McKell and Alessandra Palazzolo for their assistance with research for this essay.

The COVID-19 pandemic has laid bare inherent tensions between the protection of intellectual property (IP) and the health of individuals touched by life-threatening medical conditions. Instead of looking for solutions that would entail legislative action, a stretch of emergency powers, or vague private commitments, we suggest that the law already provides a mechanism for addressing this tension in the form of the age-old common tort law doctrine of necessity.

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