Do you want to share your technology for free in the fight against COVID-19?

Our days are characterized by a national and global effort to fight the COVID-19 virus. As long as we do not have vaccines, medicines or other solutions that can defeat the pandemic, countries around the world resort to curfew restrictions, guidelines for hand washing and social distancing to keep the virus from spreading. There is however no doubt that the race to fight the pandemic is on, and now "Open COVID Pledge" encourages organizations around the world to contribute to research and development by sharing their intellectual property rights for free. Recently, giants such as Facebook, Microsoft, Amazon and IBM announced that they are joining the initiative.

Open COVID Pledge is an international initiative that calls upon organizations around the world to freely share their intellectual property rights to fight COVID-19. Among the initiators is a group of researchers and legal professionals associated with various universities and companies. The goal is to promote the development of vaccines, therapeutic methods, medical equipment and software solutions that can help fight the pandemic and mitigate its consequences.

"The Pledge"

On their website, Open COVID Pledge presents "the Pledge", a commitment organizations can take on:

We pledge to make our intellectual property available free of charge for use in ending the COVID-19 pandemic and minimizing the impact of the disease. We will implement this pledge through a license that details the terms and conditions under which our intellectual property is made available.

Accordingly, the Pledge is announced by the owner of intellectual property rights to the public, and involves that the owner will, for this purpose, license out its rights for free. This means that anyone may exploit the owner's intellectual property rights without paying for such use.

An organization that wants to make the Pledge must commit to it by posting a public statement on its website and issuing an official press release.

It is also possible for both organizations and private persons to support the initiative without making the Pledge, for example by using the hashtag #OpenCovidPledge in social networks.

Open COVID Licenses

The contribution is made by implementing an open license. Open COVID Pledge has published several "Open COVID Licenses" on its websites. The main points of "Open COVID License v. 1.0" can be summarized as follows:

  • The licensee is granted a right to exploit licensor's intellectual property rights for the sole purpose of ending the "COVID-19 Pandemic" (as defined by the World Health Organization (WHO)).
  • The license includes patents, copyrights and "other intellectual and industrial property rights", but specifically exempts trademarks and trade secrets.
  • The license is time limited and expires one year after WHO declares that the pandemic is over. This limitation is chosen because the virus may still be active in certain areas, even though the global pandemic is declared to be over. It also gives parties time to negotiate license agreements for further use (which may or may not include payments).
  • The license is a "one-way commitment", which means that the licensor may not claim any consideration from the licensee, neither in form of payments or other benefits.
  • The licensee cannot sub-license any of the licensed rights.
  • Ironically, the license does not have a so called "contamination effect". This means that the license does not demand that products or other materials developed under the license are licensed to third parties on the same terms. Thus, licensee may commercialize results.

The organization may also use a customized version of an Open COVID License, or use a different license. The Open COVID Pledge recognizes that other licenses may be used, and that they may content-wise differ from the proposed licenses, as long as the license is in line with the "overall intent and spirit of the Open COVID Pledge".

Open licenses – why share?

The initiative is interesting from an intellectual property perspective, where the focus for most companies traditionally has been to secure exclusive rights and monopolies. However, open licenses and "pledges" are not new, and so-called "open innovation" and open IP strategies have become highly relevant in recent years.

Openly sharing intellectual property is also in line with some of the fundamental motives of the rules, which are supposed to create a balance between the need for the developer to own his results, and the society's need for innovation and access to new developments. The protection granted under patent and copyright law shall create incentives for creation and further development. From a socio-economic perspective, it is essential that the rules are stimulating innovation.

Both patent and copyright law therefore contain mechanisms to ensure this. Among other things, the applicant seeking patent protection must describe the invention in a manner that is sufficiently clear and complete for it to be carried out by a person skilled in the art, and the patent application must be made public after 18 months. In return, the patent holder obtain exclusive rights to the invention for 20 years (in some cases 25). Thus, the patent becomes a form of social contract between the patent holder and the public. As soon as the patent application is made public, the information is intended to be used as part of the development of new and better solutions.

In the copyright field, which i.e. protects software, we have for several years seen a development in the use of open software licenses. Commercial exploitation of software is often accomplished by the use of proprietary licenses, i.e. licenses which allow use of a program, while the developer retains full control over the development of the program. Open software licenses, on the other hand, give users wide permissions to further develop and distribute the software, both in its original and modified form, without any payments from the licensee to the licensor.

But why share something for free, when you have invested time and money to develop it?

Open licenses that do not require some sort of consideration may immediately seem a bit strange, at least for companies seeking to exploit their intellectual property rights to achieve profit. However, sharing of technology may open up for others to further develop such technology, and taking part in this further development may be worth more than keeping the original technology to yourself. Of course, the choice depends upon several factors, including the industry and technology involved, and how fast the technological development is progressing.

Inspiration may be drawn from one of the most well-known cases of open sharing of patents, namely when Tesla in 2014 made a "Patent Pledge" and opened up for royalty-free use of all Tesla's current and future patents. Elon Musk justified this open strategy with the need for development within the field of electric car engines, and that Tesla and companies around the world would benefit from a "common, rapidly-evolving technology platform". Musk wrapped it up as follows:

Technology leadership is not defined by patents, which history has repeatedly shown to be small protection indeed against a determined competitor, but rather by the ability of a company to attract and motivate the world’s most talented engineers. We believe that applying the open source philosophy to our patents will strengthen rather than diminish Tesla’s position in this regard.

On their website, Open COVID Pledge justifies the one-way commitment as follows:

While this imbalance may seem unfair or inequitable in some ways, we believe that it will result in the greatest adoption of licenses by manufacturers and institutions around the world.

As the COVID-19 virus affects many businesses financially, in both a short-term and a long-term perspective, helping to fight the pandemic and mitigate its consequences may be sufficient to justify free and open sharing of intellectual property. For others, it may be the market value of being involved in the global initiative that justifies the sharing.

The fact that IBM, a company that owns the largest patent portfolio in the United States, is contributing will probably lead to contributions from other global companies with relevant technology. IBM holds relevant patents ranging from antiviral drugs to artificial intelligence which could possibly be used to "screen" potential substances for drugs.

In any case, it should be carefully considered whether or not a company sees it profitable to implement an open or closed IP strategy, or something in between. If you want to share technology openly, it is important to be aware of the legal consequences of such sharing. One should therefore consciously consider what is shared, in what way, and the purpose of such sharing.

Feel free to contact our IP team if your company owns rights to relevant technology and is considering to participate in this global initiative, or would like to know more about open IP strategies in general. We can i.e. assist in the preparation and adaption of licenses for this purpose.