The Vanishing Public Domain: Antibiotic Resistance, Pharmaceutical Innovation and Global Public Health

Penicillin and other antibiotics were the original wonder drugs and laid the foundation of the modern pharmaceutical industry. Human health significantly improved with the introduction of antibiotics. By 1967, the US Surgeon General declared victory over infectious diseases in the US. But pride goes before a fall. The evolutionary pressure of antibiotic use selects for resistant strains with the least fitness cost. Effective drugs should be used. But when they are used, no matter how carefully, evolutionary pressure for resistance is created. The problem is not limited to antibiotics. Variants of the human immunodeficiency (AIDS) virus develop resistance to anti-retroviral drugs. Some pharmaceutical knowledge is exhaustible, a conclusion which upends the conventional wisdom for IP policy stretching back to Jefferson and beyond. Unwilling to live in a post-antibiotic era, society deploys two strategies against resistance. One is research and development (RD conservation is slowing the treadmill down. This Article describes the vanishing public domain of exhaustible pharmaceutical knowledge and begins a discussion of the public domain which extends far beyond copyright. Several prominent proposals address antibiotic resistance by strengthening patent law. I suggest a divergent approach, conserving exhaustible pharmaceutical knowledge so that the fruits of pharmaceutical innovation do not become the exclusive property of the rich, but remain the common heritage of humanity.