Breathing fresh air into the debate: Ventilators and the United States' intellectual property problem

Abstract

In 2006, the U.S. federal government launched a project to create a cheap, easily produced, and easy to use ventilator that could be stored for long periods of time for pandemic response. Despite successful funding and contracts with two separate medical device companies, not a single ventilator had been added to the stockpile by 2020. The company currently under federal contract for these ventilators is selling its product to private parties, rather than supplying it to the federal government. In the current crisis, government has instead turned to the Defense Production Act to supply ventilators.

Inaccessibility of medical equipment is a detriment to Americans’ health, particularly during a public health emergency like COVID-19. This persists despite the central role of the federal government in the funding of healthcare innovation. We place the shortage of ventilators in context of the ongoing debate about the federal government’s intellectual property powers, as well as the legal recourses available, then discuss why this situation is a strong argument for expanding compulsory licensing powers as a component of federal policy.