Sharing is Caring: How the Tech Industry is Easing Patents for the COVID-19 Era
With a new initiative generated by the legal and scientific communities, the Open COVID Pledge has already led many tech firms to loosen their grip on their patent portfolios for a greater cause. It’s an impressive example of stakeholders working together quickly.
Most of the time, technology companies do everything they can to keep their most fundamental and important innovations under their purview.
The most obvious way they do this is through patent filings. Many of the largest tech giants file for thousands of patents each year. Last year alone, IBM received 9,262 patents, the 27th year in a row that the business technology company topped the list of most frequent patent recipients. Companies such as Intel and Microsoft are never far behind, either.
“Patents are sometimes used as a currency for innovation,” explained Manny Schecter, IBM’s chief patent counsel, in a 2018 CNNMoney article. “That’s because it’s hard to otherwise quantify the amount of innovation that’s going on.”
Given all that, something far outside of the norm has to happen for the patent status quo to be truly disrupted. Clearly, COVID-19 is it.
A Pledge to Share
Earlier this month, all of the above listed companies, along with Facebook, Amazon, HP Enterprise, and others joined a new effort called the Open COVID Pledge. Essentially, the tech innovators are setting aside the digital norm to allow companies to temporarily use the intellectual property of these firms free of charge in efforts to fight the disease. Essentially, it’s kind of like a superset of open-source licensing and Creative Commons for a particularly difficult situation.
And while these companies (along with a couple of laboratories, major patent holders, and a trade group, the startup-focused Engine) certainly love their patents, they’re willing to see the importance of the greater good.
“By granting their owners an exclusive right to stop others from exploiting their inventions, patents provide a competitive edge,” HP Enterprise Chief Intellectual Property Counsel Brett Alten wrote in a blog post last week. “However, in times like these, cooperation is more important than competition.”
It’s an impressive response to a disease that has already seen technologies such as 3D printers put to use to develop nasal swabs and valves. While generally quite useful most of the time, the traditional patent and copyright systems could threaten to get in the way of such last-second ingenuity—so proactively getting out of its way seems like a noble move.
Identifying a Need—and Acting
But the most interesting part is that the effort came to life as a result of a number of legal and academic experts identifying a need, steering it, and building something that large tech companies could build upon. With the exception of Intel, all of the above listed tech companies only joined last week.
One member of the steering community was Diane Peters, the general counsel and corporate secretary for Creative Commons, who noted in a blog post that the concept came together very quickly.
“Although developed quickly due to exigent circumstances, Creative Commons looks forward to working closely with the many talented international legal and policy experts in our Global Network on next steps to make this Pledge an impactful reality,” she noted.
There are some complicating factors to make this all work—we are talking patents, after all. In an analysis of the pledge and its stakeholders, Stephen Kong of the law firm Pepper Hamilton LLP wrote that some of the companies taking part in the endeavor are not specifically using the license created for the Open COVID Pledge, but a separate license in the spirit of the pledge, something IBM and Intel have both done.
“The offer of these licenses from pledging companies is generous, but certain limitations and lack of clarity about the legal effect of certain terms for the licensing scheme require that companies carefully consider several elements before accepting the offered licenses,” Kong wrote.
Nonetheless, one has to be impressed with what has been accomplished in such a short period. At a time when so much is in the air and lots of technology will be needed quickly, this could provide the openness necessary to find effective treatments and possibly cures for a deadly disease.
As I wrote earlier this month, now is the time for bold action. You don’t get much bolder than this. It’s a great example of what can be done when everyone is working for a common goal.
Hopefully it sparks a little inspiration.
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