4.The perm decks solvency and links to the net benefit

Having clarifed that the vaccine and other life-saving treatments meet the conditions to be considered Commons, there is the need to assess what particular category of IP Commons these goods belong to, and in this assessment the advantages and disadvantages of each Commons, analysed in the previous section, must be considered. If the vaccine was part of the public domain, no IP holder would have an exclusive right in it, resulting in an unconditional freedom to use the vaccine. However, there would be an issue of enforceability, since the public domain is without controls and legal enforcement, and this would lead to a risk of underuse or overuse of this resource, by resulting impossible to manage the resource itself. A similar situation would arise if the vaccine was recognized as an exception/limitation to the patent regime: on the one hand, there would not be any exclusivity, and on the other hand, the enforceability would be implemented only as a defence against an alleged patent infringement. Therefore, the cases where this Commons is enforceable would be extremely limited. Lastly, perhaps the most suitable Commons for the vaccine and other life-saving treatments would be an open innovation instrument, such as IP pledges or patent pools, and this is actually what already occurred during the pandemic with regard to some diagnostics and treatments against Covid-19, as evidenced in Section 6. However, it has been already noticed that these instruments are based on private ordering initiatives, and thus on the will of the IP holder. It is far from certain that the owner of patents related to the vaccine would be willing to share such a technology with everyone in the form of a binding pledge. Therefore, also the open innovation instrument does not seem to be the optimal solution for a normative ‘commonization’ of the vaccine against Covid-19 and other life-saving treatments.