Patent Law’s Role in Protecting Public Health

Innumerable inventions implicate public health—including drugs, vaccines, dietary supplements, and sewage treatment plants. Over the past century, the Patent Office and the courts have modulated the ability to obtain or enforce patents for these inventions—whether in response to a public health crisis or to protect the credulous public from unscrupulous inventors. While normative and policy-based arguments can justify these interventions, they’ve disrupted the delicate balance of two competing policy objectives in patent law—enhancing public welfare and promoting innovation. This Article offers a new approach for courts to protect public health in patent cases—by making public health an affirmative defense to infringement. If the patent owner has engaged in invention-related egregious misconduct that’s jeopardized public health, the court could render the patent unenforceable by dismissing the lawsuit. Or the court could render the patent temporarily unenforceable until the misconduct ceases and its ill effects on public health dissipate. This proposal aligns with the increasing use of equitable remedies in patent disputes and raises interesting normative and policy questions about the role of public health issues in patent law.