Friday, February 26, 2021
The Open COVID Pledge: Design, Implementation and Preliminary Assessment of an Intellectual Property Commons
Jorge L. Contreras (University of Utah), The Open COVID Pledge: Design, Implementation and Preliminary Assessment of an Intellectual Property Commons; Utah L. Rev. (Forthcoming, 2021):
Early during the COVID-19 pandemic, a number of widely-publicized incidents gave rise to concerns that holders of patents and other intellectual property (IP) rights could hinder the development, manufacture and distribution of essential medical devices, protective equipment and biomedical products. The global response to these concerns was swift and included the issuance of compulsory licensing orders by several national governments, as well as the proposal of a technology pool by the World Health Organization (WHO). Alongside these efforts, a group of scientific, engineering and legal experts created a lightweight, open framework under which IP holders could voluntarily pledge not to assert their rights against those responding to the COVID-19 pandemic. This effort – known as the Open COVID Pledge (OCP) – attracted significant participation from some of the world’s largest IP holders, with nearly 500,000 patents and patent applications, as well as significant copyrighted material, pledged to date. The OCP has also been adopted as part of the framework of the WHO’s COVID Technology Access Pool (C-TAP), a multinational initiative to make particular biomedical innovations more accessible around the world. This article describes the development of the OCP, including the design choices that shaped its legal structure and implementation. It also assesses the adoption of the OCP across market sectors including biopharmaceuticals, diagnostics, medical devices, protective equipment and digital innovations. It finds that while pledges in the biopharmaceutical sector have been infrequent, many other critical technologies in the fight against COVID-19 have been made broadly available to users through this and related pledging mechanisms, creating a favorable environment for open innovation, new market entry and equitable access to technology. As such, the OCP may both help to address the current pandemic and serve as a useful model for IP sharing platforms to address to future public health emergencies.