Businesses Urged To Make COVID-19 IP Free During Crisis

By Britain Eakin
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Law360 (March 30, 2020, 9:26 PM EDT) -- In a bid to eliminate roadblocks in the fight against COVID-19, a group of scientists, lawyers and entrepreneurs launched a drive Monday for intellectual property holders to pledge not to sue those working to quell the pandemic.

The "Open COVID Pledge" invites universities, companies and other owners of intellectual property to grant free and temporary licenses to use their patented and copyrighted technologies in the fight against the new coronavirus without fear of legal ramifications.

According to the group's website, that includes work on vaccines, diagnostics, medical equipment and therapeutics. Licenses granted under the pledge would extend back to Dec. 31 and expire one year after the World Health Organization declares the pandemic over, the group's website said.

Jorge Contreras, a professor at the University of Utah's S.J. Quinney College of Law who helped spearhead the initiative, told Law360 it was spurred in part by researchers at universities who were concerned that intellectual property rights could block their research on cures, vaccines and diagnostics and prevent them from being rapidly distributed.

"It's something that needs to be done," Contreras said.

The key element of the pledge, he said, is that it doesn't last forever. That should provide a level of comfort to the three groups the group is targeting to make the promise — universities, pharmaceutical companies, and associations and foundations — that might be concerned about competitors building businesses off their technology, Contreras added.

"We're not saying that intellectual property should be abolished," he said. "But this is an emergency."  

So far, Contreras said the pledge "is coming along" and has drawn positive reactions from a university, a foundation and a pharmaceutical company.

According to the website, the pledge also requires those who take it to promise not to assert market exclusivity for new drugs or vaccines, meaning those who develop such treatments promise not to take advantage of being able to exclusively manufacture and sell those treatments for a period of time.

The group said that while intellectual property rights under normal circumstances incentivize innovation, in the context of a pandemic they could slow down vital investments in technologies needed to end it and mitigate the number of deaths, economic decline and social disruptions.

"The cost of the current exclusivity granted by our patent and copyright system, in this unique moment of global crisis far outweighs the benefit," the pledge said.

The group's website names 11 founding members, including scientists and legal scholars from Stanford University, the University of Cambridge, the University of California, Berkeley and the University of Utah. Mark Radcliffe of DLA Piper also joined the initiative and told Law360 he was pulled into the project by Ariel Ganz, a postdoctoral fellow at Stanford University School of Medicine, who he said kept the effort organized on an accelerated timeline.

Radcliffe said the group coalesced on Thursday and has worked daily since then to launch the project. The only open question now, he said, is the degree to which the group will allow those who take the pledge to tweak it.
"We're still trying to decide whether we urge people to sign as is or let people make it work for them," Radcliffe said.

For example, many universities are subject to local laws, he said.

"So we had to be cognizant that one size may not fit all, particularly when pushing it through so quickly. But we thought it was important to put it out there quickly, though."  

Some companies have already taken such an initiative on their own. On Monday, medical technology company Medtronic shared design details for the Puritan Bennett ventilator to boost global production in the fight against COVID-19.

--Editing by Jill Coffey. 

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