Nil: the value of patents in a major crisis such as an influenza pandemic.

Classic patent theory relies on an incentive model to justify the grant of exclusionary patent rights. 1 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. 3 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. Part II considers the reality that patent rights will be largely ignored during an epidemic and that any post-crisis compensation would likely be low when compared to traditional patent rewards or settlements entered under threat of injunctive relief. In some situations, such as use of a patented invention by a state or local government, a patentee may have no recourse. 4 Part III raises a separate issue that stems from the relatively long time frame for obtaining