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Open Covid Pledge – A group of US scholars and scientists have created a template ‘pledge’ for IP holders to invoke for licensing their intellectual property portfolios. The relevant part of the patent pledge reads as follows:
“The Pledgor grants to every person and entity that wishes to accept it, a non-exclusive, royalty-free, worldwide, fully paid-up license to fully use, practice and exploit all patent, copyright and other intellectual and industrial property rights (other than trademarks and trade secrets) that we have the right to license (the “Licensed IP”), 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 ‘pledge’ is essentially a royalty-free patent license available for any entity to adopt and adapt, in order to increase the availability of protected IP for the purpose of ending or minimising the impact of CoViD-19. The pledge additionally contains a covenant not to sue for ‘regulatory exclusivity’, in a bid to include data exclusivity claims within the pledge. Finally, the pledge also includes a defensive licensing covenant – a pledge which automatically suspends the license if the licensee attempts to assert any intellectual property right against the pledgor.
Importantly, it differs from ‘open’ or (patent/copy)left licenses which would require any IP built from the licensed IP to be licensed on similar terms. Further, the license is time-limited, will revoke from one year after the WHO declares the CoViD-19 pandemic to have ended. This raises the question about the incorporation of licensed IP into products which may be used beyond the license term and what the effects of continued use or sale of such products might be for the licensee.