The Open COVID Pledge: IP as a pathway through the pandemic?

As innovators around the world continue their efforts to develop technologies, diagnostics, treatments and vaccines to combat COVID-19, the role of intellectual property (IP) in incentivising innovation is once again the subject of fervent debate.

One camp argues that creators and inventors can only put their best foot forward if they have enforceable rights to protect their investment of time and money. The other argues that the monopolies created by IP rights are an undesirable means to a desirable end, acting as a barrier to collaboration for the greater good.

The COVID-19 pandemic has given rise to several initiatives leveraging IP for knowledge-sharing purposes, including the Open COVID Pledge.

Backed by prominent Big Tech players such as Amazon, Facebook, IBM and Microsoft, the Open COVID Pledge is a public commitment to make relevant IP available, free of charge, “for use in ending the COVID-19 pandemic and minimizing the impact of the disease.” Each pledgor grants an open licence detailing the terms under which its IP (patents, designs and/or copyright) is made available. This can either take the form of an Open COVID Standard Licence or a custom licence that is consistent with the intent of the pledge.

Although so-called IP “pooling” initiatives are typically associated with pharmaceutical industry patents, the Open COVID Pledge is dominated by technology-driven organisations. The 250,000+ pledged patents and designs cover a wide range of digital innovations with potential applications in the fight against COVID-19, including:

• wireless localisation for contact tracing;
• touchless user authentication systems, enabling the use of physical gestures rather than text-based passwords;
• designs, instructions and test data for 3D printed respirators; and
• methods for determining the credibility of social media posts and preventing the spread of pandemic-related misinformation.

If your organisation is considering participating in the Open COVID Pledge or any IP pooling programme, it is important to follow best practice and protect your commercial interests.

1. Consider carefully which IP to pledge. If you are considering pledging IP that is not yet protected by a registered right, be aware that public disclosure of that IP may jeopardise your ability to seek patent protection further down the line.

2. Whether you are pledging or using pledged IP, do your due diligence. Ensure you understand fully the scope of the licence terms, including the licensee’s ability to use the IP for COVID and (if applicable) non-COVID purposes.

3. Monitor use and compliance. Pledging licensors should have in place comprehensive mechanisms to track the use of their IP and compliance with the licence terms. Licensees should ensure that the pledged IP is not inadvertently incorporated into their other products and services.

4. Consider what will happen when the pandemic is over. Who should own any new IP developed using the pledged IP? If the licensee has created products incorporating the pledged IP, should these be destroyed?

While knowledge-sharing can be a powerful strategic move in these times of crisis, it is critical to strike a balance between the greater good and your business objectives.