The Vaccine Race in the 21st Century

In a world in which infectious diseases are spreading increasingly faster, the development of new human vaccines remains a priority in biopharmaceutical innovation. Legal scholars have addressed different aspects of vaccine regulation and administration, but virtually no attention has been paid to the role of laws governing innovation during the stages of research and development (R&D) of vaccines. This Article provides the first legal analysis of the race to develop new vaccines in the 21st century. Drawing on interviews with project directors, advisors and lawyers at partnerships focused on vaccine R&D, as well as an analysis of selected contractual provisions regulating the ownership and transfer of emerging vaccine technologies, the Article identifies a set of emerging trends: a move towards public private partnerships as the backbone of innovative vaccine R&D; a limited, albeit occasionally detrimental, role of patent-based incentives to R&D; a consequent shift towards R&D incentives complementary to, but not centered on, strong proprietary rights; and the adoption of flexible contractual frameworks regulating transfers of vaccine technology. While the new dynamics of vaccine R&D have already yielded new vaccine candidates, the Article also shows that current innovation regimes are insufficient to promote socially desirable levels of vaccine R&D. The Article argues that additional legal interventions are required to promote sustained innovation in the field of vaccines, and offers one such proposal: the adoption of a “take-and-pay” regime based on liability rules, enabling access to vaccine technology by follow-on innovators