October 21, 2021

Volume XI, Number 294

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The Open COVID Pledge: What Is It and Is It Right for You?

Enter one possible solution: The Open COVID Pledge. A group of scientists, lawyers, and entrepreneurs developed the Open COVID Pledge to encourage businesses and research facilities to make their intellectual property available for use in the fight against COVID-19. The idea behind the Open COVID Pledge is to allow open sharing of intellectual property and technology to end the pandemic without the need for timely and costly licenses or royalty agreements. The initiative comes at a time when researchers and companies alike are surging ahead with ways to combat and end COVID-19. In its Press Release, the individuals behind the Open COVID Pledge explain that the license is needed because “enabling individuals and organizations across the world to work on solutions together, without impediments, is the quickest way to end this pandemic.”

Open COVID has two “levels” of adoption. An organization can “Support” the Open COVID Pledge, thereby expressing support without any obligation. Alternatively, an organization can “Make the Pledge”, thereby committing to make some or all of its intellectual property available for the purposes of ending and mitigating the COVID-19 pandemic. If an organization chooses to pledge its intellectual property, then the organization either agrees to grant a license for its intellectual property using the Open COVID License or creates its own license with terms that are at least as permissive as the Open COVID License.

The basic terms of the Open COVID License provide a “non-exclusive, royalty-free, worldwide, fully paid-up license (without the right to sublicense)” to the intellectual property of the company who has made the pledge. The License is good from December 1, 2019 through one year after the World Health Organization declares the pandemic over. The program went active on April 7, 2020 and has already received pledges.

Companies wishing to support the effort, but unsure about offering up all their intellectual property or limited by local restrictions, will welcome the fact that the pledge is flexible. As noted above, a company that makes the Pledge can create its own “Open COVID” license, so long as the terms of use are at least as permissive as the Open COVID License. For example, one company limited its license to only patents and copyrights, does not allow the use of its intellectual property for the commercial sale of a particular set of technologies, and requires any person using the intellectual property to immediately inform the company of its use and confirm compliance with the license terms.

While it may enable faster control of the COVID-19 outbreak, the Open COVID Pledge may create new legal issues. The impact of Open COVID licensing on companies that have negotiated royalty-bearing licenses for the intellectual property is unclear. Such companies may already be using licensed intellectual property in projects that are now being directed to combat COVID-19, and their financial viability could be at risk.

The Open COVID Pledge is a step in the right direction. At a time when changes in the pandemic are occurring on a daily basis and the ability to move quickly and without facing obstacles around intellectual property licensing is important, this License provides some guidance. It is not without challenges, however, even if those challenges don’t emerge until later. Companies considering making the Pledge need to weigh the benefits of contributing to the eradication of the COVID-19 pandemic against future intellectual property entanglements.

As COVID-19 continues to spread worldwide, with the number of new cases each day still increasing in most countries, research and the development of new technologies to combat and eradicate COVID-19 has blossomed. As discussed in an earlier post, countries and companies are looking for ways to contribute, with many now making available and expanding access to their intellectual property. The balance between access and protection of intellectual property, however, is delicate.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 105
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About this Author

Theresa Rakocy, Squire Patton Boggs Law Firm, Cleveland, Intellectual Property and Litigation Law Attoney
Associate

Theresa Rakocy focuses her practice on intellectual property issues, including patent infringement litigation, patent prosecution and opinion work. She has experience preparing and prosecuting US and foreign patents in a variety of technical fields, including software and electrical computer arts with particular expertise in wireless mobile communication technology, medical diagnostic and monitoring systems, clinical workflow management systems, document preparation and management workflow, and digital imaging technologies. She prepares patent applications, conducts...

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