COVID-19 and Intellectual Property Sharing: Working for a Cure
Since the beginning of the coronavirus emergency, both large and small companies have combined talents and found creative ways to combat the crisis and the virus. Some of these are obvious: pharmaceutical companies and biotechnology firms sharing medical and gene patents to develop vaccines. Some are less obvious: software developers and programmers trading ideas as remote connectivity becomes a daily need.
Intellectual Property, not just software
Many think of software or computer programs when regarding intellectual property. The concept of having intellectual property first entered the mainstream in the 1990s, as litigation over rights to computer platforms became commonplace. Nearly anything that is not a tangible property can be considered "intellectual property," including ideas, genetic sequences, drug formulas, trademarks, and copyrights. Intellectual property is subject to the same contract protections as any other property. It can be challenging to prove and protect an idea as unique and proprietary, since another scientist or developer within the same field may independently develop the same idea.
Protecting Ownership While Helping Society
Some mechanisms for sharing intellectual property for the benefit of all already exist.
- Open Source Software has been available since the early BBS days. Open source is a type of software licensed by the original developer. Still, it grants a user the right to copy, modify, and distribute the source code, subject to specific licensing terms and conditions. Open source is highly prized in the software industry because it encourages an open exchange of ideas among creative renegades. The two most common licensing terms, "copyleft" and permissive licensing, typically require the user to acknowledge the source code and disclaims liability for use by the original coder.
- A Patent Pool is an agreement between two or more patent holders, who have agreed to share multiple patents, where cross-licensing is used to share various technologies. Care needs to be taken when cross-licensing to steer clear of antitrust investigations. Allegations of price-fixing or unfair competition may arise if patent pools exclude other companies from entering the market.
The Open COVID Pledge
A consortium of major corporations, including Microsoft, Amazon, Intel, and Sandia Laboratories, have formed the Open COVID Pledge, a promise to share among one another without reservation any technologies needed to address the current emergency. Each company is allowed to create its license, which embodies the Pledge, but licenses its technology to the others, under terms similar to the Open Source and Patent Pool agreements already available today. Risks and Concerns to Small Businesses Smaller companies that seek to take advantage of open-source agreements need to tread cautiously in the market, mainly because someday the crisis will end.
- A license should not be an assignment. The licensor should retain ownership, and in these cases, the licensor should retain the right of usage.
- Any license should have a termination, even if it means renegotiating the license during the COVID crisis. Smaller companies should not assume that their license has a natural endpoint with discovering a vaccine or the reopening of business or state. Specify a date or event.
- Consider future opportunities or marketing. The license should be as narrow of scope as it can be managed to encompass the parties' desired outcome. All parties want to help end the crisis, but should not let it lap over into post-crisis opportunities.
Intellectual property will likely be the driving force that propels us out of the current emergency. Sharing ideas and concepts is the best way to ensure our nation recovers. Still, foresight and a little assistance from a skilled attorney in drafting the proposal and license will ensure the company can reap the benefits after recovery is reached.
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