Open COVID Pledge Makes Critical IP Freely Accessible for Pandemic Fight

Legal experts and leading scientists have teamed up with Creative Commons to create the Open COVID Pledge to help speed up the battle against the coronavirus pandemic.

The Pledge gives broad permission to anyone to use intellectual property not otherwise accessible to the public, and generally replaces the need for any other license or royalty agreement.

A model license is available, but participants can use their own licensing language and terms so long as they commit to the Open COVID Pledge.

The model license grants permission to use the IP and technology from Dec. 1, 2019, and is effective until one year after the World Health Organization declares the COVID-19 pandemic to have ended.

The license permits the use of patent, copyright and other IP and industrial property rights (except trademarks and trade secrets) only for work focused on ending the COVID-19 pandemic as defined by WHO, and on minimizing the disease’s impact through diagnosis, prevention, containment and treatment.

Creative Commons “dramatically reduces the overhead of licensing IP in the modern digital age by offering a pre-licensed model that requires no consultation with the IP owner,” said Dion Hinchcliffe, principal analyst at Constellation Research.

“This can dramatically speed up the use of IP assets by one to two orders of magnitude,” he told the E-Commerce Times, “and in an exponential pandemic situation, speed is everything.”

Pledge Participants

Organizations that have signed the pledge so far:

• Intel
• Fabricatorz Foundation
• Unified Patents
• Creative Commons
• Mozilla
• DLA Piper
• Center for Law and Biomedical Sciences at The University of Utah’s S.J. Quinney College of Law
• The Center for Compassion and Altruism Research and Education at Stanford
• Stanford Program in Law, Science and Technology at Stanford Law School
• The Health and Law Policy Institute at the University of Houston
• Lipi, Laboratorio de Ideas Sobre Propiedad Intelectual at Universidad Javeriana in Colombia
• UAEM, Universities Allied for Essential Medicines
• Neuro, Montreal Neurological Institute-Hospital
• Program on Information Justice and Intellectual Property at American University’s Washington College of Law
• NISO, National Information Standards Organization
• Kobenhavns Universitet (University of Copenhagen)

“Our goal is to encourage as many companies and people as possible to consider the time-limited, narrowly tailored Open COVID Pledge as the most reasonable private solution to the question of incentives and risk during the pandemic,” said Jonathan Stroud, chief IP counsel at Unified Patents.

“We want to encourage as much research and development as quickly as possible during the pandemic, and the Pledge is designed to allow everyone to do that without the fear that a profiteer will later come to collect,” he told the E-Commerce Times.

The Pledge also “avoids the need for any governmental action to compulsorily license or otherwise enter into the patent bargain, and represents a really thoughtful approach to how companies can help encourage innovation here,” Stroud said.

Unified Patents, which has more than 3,000 members from diverse industries, including banking, automotive, manufacturing, retail and cybersecurity, cannot and will not bind its members to the Pledge, “but we do encourage all of them to take it, and ask all companies — practicing or otherwise — to do so.”

Organizations that sign up by April 21 will be deemed “Founding Adopters.”

To sign up, an organization must post a public statement on its website that it is making the pledge, issue an official press release, and then send the following to Open COVID Pledge:

• a link to the public statement;
• contact information; and
• a copy of the organization’s logo to display on the Open COVID Pledge website (optional).

Alternative Approaches to Accessing IP

Several other efforts to open up access to IP have been launched independently by various large companies.

“Many companies with cloud resources, such as Google, IBM, Microsoft and HPE have joined forces with U.S. government research labs and academia to form the COVID-19 High-Performance Computing Consortium to pull together the latest in computing resources for use by the research community,” noted Jim McGregor, principal analyst at Tirias Research.

Some pharmaceutical companies have joined the EU’s Innovative Medicine Initiative. Medtronics and UK-based Smiths Group have released ventilator design files and manufacturing guidance under a permissive license.

Global leaders in the plasma industry are collaborating to speed up development of hyperimmune therapy to fight coronavirus. The idea is to develop plasma from people who have fully recovered from coronavirus and whose blood contains antibodies that can fight it.

Stumbling Blocks

“Many companies are signing up for some of these efforts for PR purposes without really committing to providing assistance,” McGregor told the E-Commerce Times.

For example, ViaSat was among the 650 companies that signed up for the U.S. Federal Communications Commission’s “Keep Americans Connected” initiative to ensure Americans do not lose their broadband or telephone connectivity but it’s promising to work with customers only if they fall behind on payments, unlike other service providers that are raising or eliminating data caps, he pointed out.

While the Open COVID Pledge does offer researchers access to a broader array of IP, “it would mean more if the companies committing to the pledge are also committing resources to treating and/or assisting in finding a vaccine or cure,” McGregor said. “IP means nothing without the resources to leverage it in a meaningful way.”

Dozens of contact-tracing tools are being deployed now, giving rise to various security and privacy issues, and “I don’t see where a COVID pledge or Creative Commons license would dramatically expedite any of that,” said Steve Wilson, principal analyst at Constellation Research.

“Coronavirus is being tackled best in places like Singapore, Australia and New Zealand by largely non-technological measures while we wait for a vaccine,” he told the E-Commerce Times. “I’m not convinced that an Open COVID pledge will make a huge difference.”

The pledge likely will not have much impact, because “during an event like this, worrying about IP litigation is a very low priority,” contended Rob Enderle, principal analyst at the Enderle Group.

Another issue to consider is whoat will happen to technology developed after the pandemic ends, he told the E-Commerce Times. “Say someone sets up an AI that borrows a lot of companies’ IP. Does it get shut down, or does it get re-missioned and take sales from the IP providers?”