Covid 19 – an open letter from the UK IP Minister

Well, perhaps. This article suggests that the UK’s Intellectual Property Minister, Amanda Solloway MP, should write an open letter on the subject of infringement of IP, in relation to developing and making urgently-needed products to deal with the Covid 19 pandemic. Draft text of a letter, written by IP Draughts for her consideration, appears below.

This article is prompted by several conversations and exchanges of emails that IP Draughts has had in recent days. It seems that many people (students, scientists, business people and others) have risen to the challenge of developing, making and distributing products that are urgently needed by the National Health Service and the nation. Examples that IP Draughts has been made aware of in recent days include:

  • oxygen concentrators
  • mechanical ventilators
  • 3D printing of facemasks and airflow dividers
  • apps to predict whether someone is infected
  • apps to track the development of the virus across the population
  • apps to provide reassurance to people in isolation

A concern that has been raised more than once is whether these activities may infringe the IP of others, and whether anything can be done at a national or international level to remove this risk. This concern has probably been stimulated partly by the news from Italy that someone has been making a ventilator valve using a 3D printer, for use in hospitals. Apparently they had asked the original manufacturer for design drawings and had been refused and threatened with an IP infringement suit.

The facts of this story have subsequently been disputed, but they raise an understandable concern. Some people in the IP community feel that reassurance needs to be given to people doing their best in a national emergency, that they are unlikely to be sued.

But any such reassurance is ultimately only someone’s opinion. No matter how unlikely you think it that a reputable company would trash their reputation by suing someone who is trying to save lives, there is nothing to stop them from doing so. Or is there?

There are provisions in UK IP legislation (and, IP Draughts suspects but doesn’t know, in the laws of other countries) that enable the UK government to override IP laws.

For example, section 55 of the Patents Act 1977 provides:

…any government department and any person authorised in writing by a government department may, for the services of the Crown and in accordance with this section, do any of the following acts in the United Kingdom in relation to a patented invention without the consent of the proprietor of the patent…

The section then lists various activities that would normally constitute patent infringement.

Section 59 of the same Act provides an alternative route. It includes the following provisions:

During any period of emergency within the meaning of this section the powers exercisable in relation to an invention by a government department or a person authorised by a government department under section 55 above shall include power to use the invention for any purpose which appears to the department necessary or expedient;

(a) for the efficient prosecution of any war in which Her Majesty may be engaged;

(b) for the maintenance of supplies and services essential to the life of the community;

(c) for securing a sufficiency of supplies and services essential to the well-being of the community; …

Similar provisions apply to certain other types of IP. For example, in relation to unregistered design right, section 240 of the Copyright, Designs and Patents Act 1988 includes the following provisions:

(1) A government department, or a person authorised in writing by a government department, may without the licence of the design right owner—

(a) do anything for the purpose of supplying articles for the services of the Crown, or

(b) dispose of articles no longer required for the services of the Crown;

and nothing done by virtue of this section infringes the design right.

(2) References in this Part to “the services of the Crown” are to—

(a) the defence of the realm,

(b) foreign defence purposes, and

(c) health service purposes…

On a slightly different topic, where IP has been generated under a contract with the government, the IP may be owned by the contractor but subject to a contractual equivalent to the Crown user provisions mentioned above, to allow the government to make use of the IP and authorise others to do so. For example, IP Draughts has seen funding agreements from the Department of Health that include such provisions.

To implement provisions of this kind, a government minister is required to take a formal decision, and in the case of section 59 of the Patents Act 1977 an Order in Council is required to declare a “period of emergency”.

Thus, the government has several levers of power to ensure that people responding to the Covid 19 pandemic are not sued for IP infringement.

With this in mind, and with a view to encouraging people to do what they can to help the NHS and the nation through the present crisis, IP Draughts proposes the following draft statement, or open letter, from the relevant government minister. Given that Amanda Solloway is both the IP Minister and the Minister for Science, Research and Innovation, she would seem ideally placed to issue such a statement.

For the avoidance of doubt, IP Draughts waives any IP rights that he may have in the following statement!

IP Draughts’ draft statement for the IP Minister to issue:

Covid 19 and the use of intellectual property (IP) for the public benefit

It has been inspirational to see the public responding so generously to appeals for help during the current pandemic. Within the science and technology communities, we have seen hundreds of initiatives to help solve shortages of vital equipment such as ventilators, face masks and hand sanitiser. There have also been initiatives to improve our understanding of the spread of the disease, including diagnostic tools and tracker apps. On behalf of the UK government, I would like to express our strong support and appreciation for initiatives of this kind.

Some of the people involved in these and similar initiatives have expressed concerns that they may be sued for infringement of third party intellectual property. For example, a scientific technique may be patented, or a product may make use of existing designs that are protected by design rights.

It would be extremely concerning if anyone who is trying to develop, make or supply products to help with the current emergency were to be threatened or actually sued for IP infringement.

The government would like to remind IP owners that it has statutory powers known as Crown user provisions, that enable the government to use, and authorise others to use, IP in the national interest. The government will not hesitate to implement those powers where appropriate.

However, the government hopes that it will not be necessary to devote time and national resources to implementing such laws. It trusts that IP owners will voluntarily cooperate to ensure that urgent needs are met (e.g. by voluntarily supplying designs and blue prints of their products where required), and refrain from asserting IP rights against those who are trying to meet those needs.

 

6 Comments

Filed under Intellectual Property, Legal policy

6 responses to “Covid 19 – an open letter from the UK IP Minister

  1. I see that the IP Minister has sent a letter to the university sector, which praises their endeavours but makes no mention of the IP issue. See: https://www.ukri.org/files/news/science-minister-letter-covid19/

  2. ANanny Mouse

    Great Post Mark
    (I made this comment on PatentlyO earlier – it applies here too….)
    As we sit at home looking at the sky and feeling just a little bit helpless, we all want to contribute in some way to saving lives, or at least reducing the stress on our health care professionals so they can care for us and our loved ones -when it’s our turn.

    Perhaps we in the IP community (and I am thinking of the many commentators and bloggers out there – as well as black letter law readers/studious types – who really know their stuff) can provide reassurance three ways

    1) lobby and provide helpful constructive insight to governments into how IP rights can be used in the present emergency and the licence of right/ compulsory licencing/crown use and compensation arrangements that may be used in each jurisdiction

    2) provide insight to companies with IP rights that could be used to help now on how to make these available in a constructive way – which may not be at no cost but may be low cost – e.g. licences of right – for the duration of the emergency.

    3) provide some measure of reassurance to volunteer groups and companies who want to 3d print components through articles, blogs and position papers – explaining the low risk (if indeed it is low risk) of being sued for IP infringement, and the potential for reputational damage to those who do the suing.

  3. vrkoven

    Props to HMG for thinking about this in advance, and to you for suggesting that it make use of its powers, or at least threaten to do so. My question, though, is whether if the government forbears now, can a later declaration of emergency retroactively immunize infringements that took place before the declaration?

    • I think so, under section 55(6):
      “The authority of a government department in respect of an invention may be given under this section either before or after the patent is granted and either before or after the use in respect of which the authority is given is made, and may be given to any person whether or not he is authorised directly or indirectly by the proprietor of the patent to do anything in relation to the invention.”

  4. Thanks, Charles. I couldn’t immediately find anything for copyright, and was planning to do some more research later, but I am now reassured that I haven’t missed anything!
    Whether my demands would have any effect is another matter…

  5. All in favour of this initiative. In addition, I would like IP Draughts demand an amendment to the CDPA to allow compulsory licensing of certain copyright materials, i.e., articles, reports, books discussing/explaining medical, social, etc. matters relevant to the coronavirus and its treatment. In this way, the financial and practical blockages people and organisations currently encounter in trying to learn about, e.g., results of tests on masks and their efficacy, could be overcome. In effect, what is needed is for all outputs of relevance to be made open access during the time of emergency. This would require legislation, as there is nothing in the current CDPA as far as I know that allows this.

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