Can you patent the sun? Towards a sui generis inclusive right to manage the relationship between intellectual property and Commons

Abstract This paper, by adopting the Covid-19 vaccine as a case study, argues that some pharmaceutical drugs should be considered as Commons, ie goods that are managed and owned by the public at large, and not as private property—exclusivity—of pharmaceutical companies. The reasons of such a strong argument are, on the one side, the conspicuous public-funding contribution to develop Covid-19 vaccines and other essential life-saving treatments, and, on the other side, the search for a human and equity-oriented Global Health Security. It is true that, from a legal perspective, vaccines can be patented, leading to questionable practices in the pharmaceutical industry, such as patent thickets. However, an alternative and fairer path, which would result in the theorization of a Commons for the vaccine, can be pursued. In particular, the actual types of Commons in the IP law field—the public domain, exceptions/limitations to patents and open innovation instruments such as IP pledges—present some issues in relation to enforceability. By forwarding the concept of ‘negative spaces’ to the patent realm, these spaces should not only claim to not enforce IP but also be able to ‘enforce that non-enforcement’. Therefore, this paper, by building on the work of the author Dusollier, advances the idea that from the inclusivity, which is the typical feature of every Commons, a sui generis inclusive right can be envisaged and applied in the context of the vaccine, by rethinking the relationship between IP and Commons.