In response to the COVID-19 outbreak, all sectors of industry have taken almost unprecedented steps to ensure access to intellectual property, mainly patent rights, associated with COVID-19 treatments. Through these initiatives, it is possible to use the intellectual property to develop COVID-19 treatments without concerns about infringement.
In the United States, the Open COVID Pledge was launched on March 30.[1] “The Open COVID Pledge is a commitment by holders of intellectual property to share their intellectual property for the purposes of ending and mitigating the COVID-19 Pandemic.”[2] Implementation of the pledge requires the pledger (company or individual) to publish a license consistent with the pledge. The Open COVID Pledge website provides several exemplary licenses that specify a royalty-free, worldwide license effective as of Dec. 1, 2019, until one year after the World Health Organization (WHO) declares the COVID-19 pandemic to have ended. Certain versions of the license limit the term to not extend beyond Jan. 1, 2023, unless otherwise extended by the pledger. As of May 13, U.S. companies in various sectors from e-commerce to educational institutions have thus far signed the pledge.
A similar initiative, the OPEN COVID-19 DECLARATION, was launched in Japan on May 8. To participate in the declaration, companies have to execute a form. Companies participating in the declaration “commit not to assert certain intellectual property right against any activities whose [sole] purpose is stopping the spread of COVID-19, including diagnosis, prevention, containment and treatment.” Unlike the Open COVID Pledge in the United States, which provides for a time-limited, royalty-free exclusive license, the OPEN COVID-19 DECLARATION in Japan is only a promise to not assert any patent, utility model, design or copyright against any individual or other entity during the period starting with the date of the declaration and ending on the date on which the WHO declares that the COVID-19 outbreak no longer constitutes a public health emergency of international concern. As of May 13, the declaration has been signed by many large Japanese corporations.
Separately, individually or through their industry organizations, pharmaceutical companies have committed their resources to fight COVID-19. Depending on the circumstances, these commitments may include royalty-free licenses for the duration of the COVID-19 pandemic. For example, on May 12, a pharmaceutical company announced that it has granted nonexclusive licenses to several generic companies to expand the supply of an experimental COVID-19 treatment.[3] Similar to the Open COVID Pledge, the licenses for the COVID-19 treatment are royalty free until the WHO ends the COVID-19 public health emergency or until another product or vaccine is approved to treat or prevent COVID-19.
[1] https://news.bloomberglaw.com/ip-law/scientists-lawyers-create-coronavirus-ip-pledge.
[2] https://opencovidpledge.org/.
[3] https://www.nytimes.com/reuters/2020/05/12/world/asia/12reuters-health-coronavirus-gilead-sciences.html.
