When Markets Fail: Patents and Infectious Disease Products

Jonathan J. Darrow, Michael S. Sinha, and Aaron S. Kesselheim


New antibiotics and vaccines aimed at treating or preventing infectious diseases can be highly valuable public health innovations, particularly when these products address unmet medical needs. Although patents are considered the primary means of incentivizing new product development, reduced private investment in this area has led policymakers to create new and sometimes costly supplemental incentive schemes for antibiotics. But the legislative initiatives launched over the past 15 years to overcome the shortcomings of the patent system have had limited success, in part because they do not adequately address the reasons underlying the disconnect between patents and the antimicrobial market. We examine the market dynamics related to infectious disease products to describe why both patents and recent legislative interventions have underperformed in incentivizing the development of new infectious disease treatments and vaccines. We conclude by reviewing existing and proposed solutions with these dynamics in mind, to separate out the most from least promising interventions.