QUT News, 22 February 2024 22nd February 2024 The role of intellectual property rights in technology transfer to developing countries and least developed countries to achieve the UN Sustainable Development Goals (SDGs) is a major theme of a new international…
[Jorge Contreras] Broad public concern over the availability of equipment, diagnostics and therapies needed to address COVID-19 has led numerous companies and institutions to pledge their intellectual property (IP) to this cause on a compensation-free basis (some background on IP pledging can be found here and here). The following table and discussion, adapted from a longer paper forthcoming in the Utah Law Review, summarizes the more prominent of these in roughly chronological order.
On April 7, Jorge Contreras was featured on NPR's "Academic Minute" podcast to discuss the Open Covid Pledge. Excerpt: "In early March 2020, along with news reports about the rapid spread of COVID-19 and its serious health effects, stories began to emerge that patents could hinder vaccine and drug research, as well as the manufacture and supply of products necessary to contain the pandemic and treat those with the disease."
Abstract: This chapter in the forthcoming case book "Intellectual Property Licensing and Transactions: Theory and Practice" covers IP pooling, with an emphasis on patents. It begins with a discussion of the theoretical benefit of pooling, including efficiency gains and the avoidance of blocking positions, thickets and anti-commons. It then addresses antitrust analysis of pooling transactions from Standard Oil (Indiana) v. United States (U.S. 1931) through the 2017 DOJ-FTC Antitrust Guidelines. The chapter then turns to pools created to facilitate standard-setting, including the MPEG-2 and 3GPP Pools, and discusses the concept of complementarity and essentiality of pooled assets. It concludes with brief discussions of Princo v. ITC (Fed. Cir. 2010) and the rise of patent aggregators such as RPX Corp.
[Jorge L. Contreras, Michael B. Eisen, Ariel Ganz, Mark A. Lemley, Jenny Molloy, Diane Peters, and Frank Tietze] Abstract: COVID-19 differs from other recent public health crises with respect to its sudden onset, its rapid spread, the lack of any known vaccine or cure and resulting shortages of critical medical equipment. The convergence of these factors has prompted both governments and IPR holders around the world to seek ways to increase the availability of IPR necessary to combat the pandemic. Governmental compulsory licensing, IPR pools and voluntary IPR pledges have all been used in the past, though in situations that differ in important respects from the COVID-19 pandemic. Each is designed to result, to a greater or lesser degree, in a publicly-accessible “commons” of rights and technologies that are broadly available for use to support an important public health goals. Here, we compare and contrast these differing approaches to IPR commons formation and assess their suitability to address the COVID-19 crisis.
Patent pledges are voluntary commitments made by patent holders without monetary compensation to refrain from asserting their patent rights to the fullest degree. Such pledges have been around for decades and appear in industries ranging from software to automotive to green tech to biotech... Since the beginning of the COVID-19 pandemic in early 2020, firms and institutions around the world have pledged patents and other intellectual property rights to assist with the pandemic response. These efforts include unilateral pledges such as those made by ventilator manufacturer Medtronic and vaccine maker Moderna as well as coordinated pledge efforts such as the Open COVID Pledge and the Japan-based Open COVID-19 Declaration.
[Jorge Contreras] On October 8, Cambridge-based biotech company Moderna, Inc., a leading contender in the race to develop a COVID-19 vaccine, publicly pledged not to enforce its COVID-19 related patents against “those making vaccines intended to combat the pandemic.” ...In the high-stakes market for COVID-19 vaccines, it is worth considering the full range of factors that might motivate a private firm to relinquish valuable intellectual property rights for the public good. A better understanding of these factors could help policymakers to secure additional pledges from firms that have not yet volunteered their intellectual property in the fight against the pandemic.