Let’s not let IP get in the way of fighting the pandemic!

Fellow of Wolfson Dr Frank Tietze argues that we should not let Intellectual Property concerns prevent manufacturers and technology companies from collaborating on solutions to the pandemic.

Intellectual property

At the forefront, the global Covid19 pandemic calls for health systems, doctors and nurses to fight the virus. Also, food supply appears to be crucial to keep feeding the global population, as well as research to develop reliable and speedy tests and vaccines, of course. Challenges associated with these appear to be the most pressing ones at the moment. However, there are various more underlying challenges that related to various other disciplines and sectors.

Leading the Innovation and Intellectual Property Management (IIPM) Labat Cambridge University’s engineering department, during the past weeks I have been puzzling about the role that intellectual property (IP) has to play in this crisis as I have been thinking about how my own expertise could be of help to fight Covid19. Initially, I struggled as at first sight this expertise did not appear to be particularly relevant, but then my thinking developed gradually while picking up some bits and pieces from the news, but also from specialised IP industry magazines.

Mid March, one of the first initiatives I saw with clear relations to IP was the copyright and research data pledge from the Wellcome Trust calling to freely share academic articles and data that relate to Covid19 [1], which leading journals, such as Nature and The Lancet, but also the European Commission, publishers (eg Cambridge University Press), national academies of science (eg The Royal Society), foundations (eg Bill & Melinda Gates Foundation), research councils (eg Dutch Research Council), ministries (eg Indian Department of Biotechnology, Ministry of Science & Technology) and a wide range of other organisations, including companies (eg BenevolentAI, Johnson & Johnson) soon followed.

Following the news during the past few weeks I then started to ask myself, clearly there must be manufacturing related challenges to the Covid19 outbreak. Colleagues at the Institute for Manufacturing (IfM), University of Cambridge had similar thoughts, possibly because we typically adopt a very broad definition of manufacturing. We thus started to talk early on about ventilators being critical medical devices in this crisis, but also resilience of supply chains for food and PPE equipment. At some point, the discussions with IfM colleagues then led to the launch of a dedicated webpage that collates manufacturing related initiatives to help with the Covid19 pandemic [2].

I then picked up a note in The Verge about Italian volunteers / start-ups being sued for infringement when 3D printing valves, i.e., critical components for ventilators or rather that the company owning the IP for these valves did not release it [3]. I then saw a note in the WIPR (World IP Review) journal asking “will IP hurt ventilator production amid COVID-19 pandemic?” [4].

Subsequently, my thinking started to converge, also when I kept reading about the UK government’s call for scaling up ventilator production in a national effort [5]. It appears that this particular challenge, but more widely the rapid capacity building for manufacturing crisis-critical products (eg ventilators, PPE equipment, hospital beds, oxygen) is far too big for only existing incumbent manufacturers to shoulder. This also presents massive innovation challenges. For instance, just today the UK government called for proposing novel approaches for the quick, but obviously safe sanitising approaches for ambulance vehicles [6]. High intense UK light sources might be an option here, that I heard of being currently explored by a German owned manufacturing company.

It then struck me: wait a minute! What happens if suddenly various firms start manufacturing products that are typically produced by other firms. For instance, in the following days we started hearing about manufacturing firms re-purposing production lines, such as the luxury brand LVHM using perfume manufacturing facilities to make hand sanitisers [7], Volkswagen starting to produce ventilators using their ‘fleet’ of 3D printers [8], textile manufacturers (eg ZARA in Spain [9], Trigema in Germany [10], Prada in Italy [11]) starting to mass produce face masks. At the same time global, resource-rich companies actually starting to innovate themselves in technology spaces they usually hardly operate in. For instance, just today, BOSCH announced they had developed their own Covid19 test kit [12].

Hold on! Wait a second! If other manufacturers (i.e., those with relevant expertise, but so far not having produced crisis critical products) suddenly embark on scaling production of products they usually do not manufacture, such as ventilators, do those firms actually have access to the relevant IP to produce and sell those products or do they risk infringing IP of incumbent manufacturers? How do new entrants get quickly to sign licensing agreements to avoid infringing upon IP that is owned by others, ie the incumbent manufacturers of those products? IP regimes are still in place across the globe and I have not seen any government yet enacting compulsory licenses for crisis-critical products.

So, it appears that new entrants will have to engage in some form of IP transfer or at least gain access to relevant IP, such as informal / unregistered IP in form of know-how and trade secrets for efficient assembly processes. In addition, eg those joining the UK’s national effort to rapidly produce ventilators will have to be allowed to use existing formal IP, i.e. access patented technologies. For instance, new firms entering the manufacturing business for ventilators can start from scratch thinking about how to manufacture ventilators (which possibly will take more time) or get access to relevant IP from incumbent manufacturers which have developed valuable expertise since years, so new entrants can speed things up (with speed being critical at the moment).

It feels almost unnecessary to say that new entrants manufacturing products for which crisis critical IP is owned by incumbents may fear the risk that they are infringing that, however, may assume (rightly or not) that incumbents would not sue them in times of such unprecedented crisis.

This appears to be a challenge, which government officials might be aware of and some background work might be going on in ministries across countries possibly with help of IP lawyers. However, at the same time, this might not be the major worry of most governmental leaders, which are understandably occupied with more pressing issues. While clearly there is a massive goodwill across the economy to help fighting this pandemic, business challenges cannot be ignored. I thought, some kind of platform that provides licensing templates (similar to the Lambert toolkit) would possibly help with this process.

Clearly, there are potentially substantial risks for incumbents to share their IP. While I am sure many manufacturing firms are willing to help, clearly some of them (or their investors) might be worried about new firms entering their market, which then gradually develop manufacturing expertise in their space, thus may become and stay future competitors when the pandemic will be over. This might even be more of a problem when new entrants not only get access to incumbents’ background IP, but also develop their own ‘foreground’ IP. For instance, re-purposing assembly lines for ventilator production they may find that with their resources (eg equipment, skills, materials in stock) at hand they cannot produce ventilators exactly as incumbents have done, but may have to adapt the design so they can manufacture it with their available resources. This might then lead new entrants to become inventive, possibly even developing new ventilator designs. Also, existing ventilator products may have functions and features which are not needed to specifically treat Covid19 patients, wherefore existing designs could be stripped down to the essential features (minimum viable product), as these might be easier, thus quicker to manufacture at scale. Such new ‘frugal’ designs might have some potentially patentable features as such. If new entrants file to protect those, incumbent manufacturers may fear that they may have to in-license those patents in the future.

During the past days I have also followed with interest the announcement of numerous, so called, open source initiatives, eg for 3D printing of ventilators [13]. In this context it might be worth noting that while the initiatives clearly have good intentions announcing that they share their designs freely, one may doubt if freedom to operate analyses have been carried to ensure their new (open source) designs actually do not infringe upon existing IP.

While my initial thoughts focused primarily on manufacturing firms I was very pleased when a Cambridge colleague invited me to join a mailing list involving genetics / medical experts, but also IP lawyers from other leading universities across the globe, involving colleagues from Stanford and Berkeley. These colleagues are particularly concerned with rapidly scaling up the production of Covid19 test kits. When reading through their conversation it appeared to me that they saw challenges in the biotech / pharma sector closely related to those I had been thinking about for manufacturing firms. While incumbent test kit manufacturers, such as Qiagen have announced to rapidly scale up production, it seems likely that their production capacity would hardly be sufficient, wherefore my colleagues had started to think about a solution to allow other firms to join the production of test kits. In a way, those colleagues were a step ahead of me, because they already started to work on a way forward, ie drafting a pledge that can be adopted by firms to temporarily make relevant IP publicly available for being used to fight Covid19. This idea resonated very well with me, as we had recently published a paper proposing a typology of patent pledges [14]. While originally developed for companies in the business of Covid19 test kits, the concept of such pledge can be adapted to other critical sectors in the current global health crisis. This initiative is very much in line with the recent call from the Costa Rica government to the WHO to “create a voluntary intellectual property pool to develop Covid-19 products” [15].

One question that remains is why would incumbent manufacturers join such a pledge? Is “doing good” in this crisis a sufficiently large incentive? Obviously, adopting such license can govern the IP transfer to new entrants limiting the free use of their IP to a certain period (eg until one year after the WHO declares the end of the pandemic), thus provide some certainty that new entrants won’t become future competitors. In addition, if such pledge would include a grant back clause, incumbents would have an even stronger incentive to sign up to it as they could get access to the foreground IP that new entrants will develop in what might be called a massive ‘open innovation’ endeavours.

An alternative to such pledge would be government enforced compulsory licensing approaches (called ‘crown use’ in the UK). A voluntary initiative that various organisations can join (similar to the Wellcome Trust pledge) appears to me as much better than compulsory licensing, which however have been mentioned in the news recently [16]. Again, while IP might not appear to be crucial at the forefront, governments now calling for large scale actions should not ignore IP concerns that firms may face. Rather, they should be proactively providing solutions ensuring that IP concerns will not delay scaling up manufacturing capacity or rather distributed open innovation efforts to ensure the supply of crisis critical products. Hopefully, eg the Wellcome Trust or other renown organisations, including leading universities will eventually support such pledge as mentioned above.

While what I outline above relates predominantly to one idea of how IP is clearly important in this crisis, we have also been discussing other topics in my Lab to help with fighting Covid19. Some of our ideas relate to the use of machine learning for finding off-patent technologies that new entrants in a respective manufacturing sector can use, eg for ventilators without violating active IP, but also the use of patent portfolio similarity searches for finding companies with expertise in a certain technology, which may however be in different industries so these could be approached (eg by the government) for helping with specific challenges, such as the ventilator manufacturing. For instance, recently in the UK Dyson announced to start producing ventilators [17]. While Dyson has not been previously producing medical devices, their expertise in air flow technologies seems to relate to ventilators. With similarity searches on patent portfolio level one might be able to identify companies from different sectors that are not obviously associated with the production of crisis-critical products on a first glance, but could become valuable interim contributors to accelerate the efforts to tackle the pandemic.

I very much hope that the above thoughts would be of interest to those concerned with helping to solve this crisis as soon as possible and spark further thinking and discussions not only about the role of IP for innovation in this global health crisis, but even more so on the effective use of IP to support the fight against Covid19. The hope is that other IP and innovation scholars as well as IP practitioners engage in conversations about how we can support the fight against Covid19 in the best possible way. As always, we should exercise caution and do not rush to take action (even though speed currently appears critical), but rather think hard about what the relevant questions would be, then addressing those that can make a real impact.

Acknowledgements: Many thanks to colleagues for commenting on draft versions, particularly Pratheeba Vimalnath (Cambridge), Ariel Bacaner Ganz (Stanford), Leonidas Aristodemou (Cambridge).

This article was originally published in Medium.