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Open COVID Pledge Rolled Out to Make Patents and Other IP Available for COVID-19 Response

In an innovative initiative in the battle against the Coronavirus, the newly-formed Open COVID Coalition (the “Coalition”) launched the Open COVID Pledge (the “Pledge”), a framework for organizations to contribute intellectual property to the fight against COVID-19. Pursuant to the Pledge, rightsholders can openly license intellectual property to facilitate the development of tools and technologies to counter the COVID pandemic. These would include the manufacturing of medical equipment and testing kits, as well as the development of software, AI and biotech solutions to contain and end the virus. Many major technology companies and other organizations have signed on to the Pledge.

The Coalition created a form of license which participants may to use to fulfill the pledge.  Under the license, the Open COVID License 1.0 (“OCL”), the pledgor grants a “non-exclusive, royalty-free, worldwide, fully paid-up license (without the right to sublicense)” to exploit the IP (other than trademarks or trade secrets) in products, services and other articles of manufacture “for the sole purpose of ending the ‘COVID-19 Pandemic’ (as defined by the World Health Organization, “WHO”) and minimizing the impact of the disease, including without limitation the diagnosis, prevention, containment, and treatment of the COVID-19 Pandemic.” The term of the OCL is retroactive to December 1, 2019 and runs until one year after WHO declares the end of the pandemic. Under the OCL, the pledgor “will not assert any regulatory exclusivity against any entity for use of the Licensed IP” in accordance with the license grant, and agrees to not seek injunctive or regulatory relief to prevent any entity from using the licensed IP. As with some traditional open source licenses, the licensed IP is granted without any warranties and the license is suspended if the license threatens or initiates any legal proceeding against the pledgor. Lastly, all copyright and related rights granted under the OCL are deemed waived pursuant to the Creative Commons 1.0 Universal License (public domain dedication).

Beyond the OCL, the initiative allows companies to license their IP under their own open licenses that are compatible with the OCL (as determined by the Coalition on a case-by-case basis). There are several pre-approved OCL versions available (e.g., patent rights only, license with a different termination date). If a company chooses to fulfill its pledge through its own alternative license, the terms must, among other things, be a royalty-free license of certain IP that licensees can use for the purpose of diagnosing, preventing, containing, and treating COVID-19.  An entity’s license may be broader than the OCL, but will not be deemed compatible if it contains further limitations, such as commercial use restrictions or copyleft provisions (though such licenses will be listed on the Coalition site as an Alternative License). This is an extraordinary effort and an innovative way to meld law and technology for the common good. Hopefully the onrush of available royalty-free patented technology and related IP for research and development will speed up efforts to contain and end this crisis.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 112

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About this Author

Jeffrey D Neuburger, Proskauer Rose Law Firm, Technology Attorney
Partner

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law...

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