HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Friday, May 24, 2024

Technology Specificity and Equitable Access to Pharmaceuticals

Ana Santos Rutschman (Villanova University), Technology Specificity and Equitable Access to Pharmaceuticals, Nw. J. Tech. and Intell. Prop. (forthcoming):

Current models of production of pharmaceuticals, particularly those dependent on intellectual property (and adjacent) protections, often contribute to the highly asymmetrical and inequitable distribution of resulting outputs. These problems are especially acute when emerging pathogens cause transnational public health crises in which there is concurrent demand for the same medicines in both lower- and higher-income countries, with populations in the Global South getting very limited timely access, if any, to preventatives and life-saving medicines—even when an outbreak disproportionately affects populations in these very countries.


This essay examines an under-theorized and under-explored way to help correct this historical and persisting deficit in distributive justice: it introduces and develops the concept of “technology specificity,” situating it in the context of the transfer of patented pharmaceutical products. As used here, technology specificity refers to a component-by-component evaluation of the pharmaceutical landscape surrounding products needed for pandemic and epidemic preparedness, with an emphasis on proprietary rights and logistical barriers to tech transfer. The essay further advocates for a more deliberate use of technology-specific strategies on part of policymakers before the onset of a pandemic or epidemic. This contrasts with the current practice of negotiating contractual terms when a public health crisis is already underway. 

The ex ante approach proposed here can help lessening many of the political economy hurdles that arise when policymakers in lower-income countries are forced to compete on unlevel playing fields with those in wealthier countries at the height of a pandemic or epidemic. In turn, this affords policymakers greater flexibility to negotiate equitable access provisions—thus ensuring that, when demand for a pharmaceutical or a particular component does arise, populations in lower-income regions are not left out.

https://lawprofessors.typepad.com/healthlawprof_blog/2024/05/technology-specificity-and-equitable-access-to-pharmaceuticals.html

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