Classic patent theory relies on an incentive model to justify the grant of exclusionary patent rights. Under the model, potential patent rights provide an incentive to those who would set about the task of innovating. In constitutional language, this incentive operates to promote the progress in the “useful arts.” Patents are only one tool of innovation policy, and we regularly find innovation even in the absence of any direct governmental sponsorship or activity. In this essay, I focus on the role of patents in relation to a potential global crisis such as an influenza pandemic or other public health crisis.
