By: Bonnie Smith

In response to COVID-19, many industries are actively creating solutions and inventions to respond to the various needs presented by the crisis, such as vaccines, treatments, virtual engagement tools, personal protective devices, etc. These inventions are typically protected by patent rights, as the Patent systems used around the globe to foster new and improved ideas provide an incentive to inventors. These incentives include an exclusive legal right to make, use, or sell an invention.  However, during a pandemic, reconciling this exclusive legal right with public health considerations provides a delicate and unique challenge.

Open intellectual property (IP) attempts to overcome this challenge by encouraging collaboration among parties attempting to solve COVID-19-related problems, while also preserving legal rights to inventions.  Global open IP efforts are being made by government agencies, universities, and companies, including tech giants.

Efforts being made by the United States Patent and Trademark Office (USPTO) include a “fast-track” patent application program for COVID-19-related patent applications, a “Patents 4 Partnerships” program that provides a database of COVID-19-related US patents that are voluntarily available for licensing, and a new COVID-19 Response Resource Center.  In a stance on global collaboration, the USPTO issued a joint statement with the Japan Patent Office that sets forth the commitment by the two offices in working together to advance initiatives that promote investment and innovation.

Other open IP efforts are embodied by “pledges” in which pledgers commit to making their COVID-19-related IP freely available, subject to unique licensing agreements.  Pledge examples include the Open COVID Pledge , which has been adopted by companies including Amazon, Facebook, HP, IBM, Microsoft, and Sandia National Laboratories, and the Open COVID-19 Declaration, which has been adopted by Japanese companies including Canon, Mitsubishi, Panasonic, Toyota, and Sony.  More recently, the World Health Organization launched a COVID-19 Technology Access Pool (C-TAP), which will pool IP for COVID-19-related technologies.

There is no doubt that open IP will continue to have an important role in navigating the present pandemic and future global issues, but there must be caution in promoting non-exclusive IP license agreements.  Collaborative approaches must work in conjunction with patent systems to continue to incentivize inventors.  In an effort to balance these considerations, the drafting of COVID-19-related licensing agreements and patent applications should be both thoughtful and strategic. 

At Renner Otto, we provide a full spectrum of intellectual property law services for clients all over the world. Whether you are securing patents, trademarks, copyrights or trade secrets, assessing an IP portfolio, restructuring or simply exploring your options – we’re here to help.

Contact us for a complimentary discussion to see how we can help you move your innovation forward