Sean Flynn, Jorge Contreras, Meredith Jacob, PIJIP

PIJIP is a founding partner of the Open COVID Pledge, https://opencovidpledge.org/, and is providing institutional support for the project. This note explains our history with the project, how the pledge works, and why we think it will be helpful. At the end of this note is a link for organizations that want to support or use the Pledge themselves.

PIJIP Patent Pledges

The Open COVID Pledge is an outgrowth of PIJIP’s “Patent Pledges” project, chaired by PIJIP Fellow Jorge Contreras. That project created a database of public releases of rights that can operate as open licenses. https://www.wcl.american.edu/impact/initiatives-programs/pijip/impact/patent/ 

Patent pledges are common in high technology markets, such as in mobile phones and open software. Using patent pledges for promoting access to medicines in developing countries has long been the focus of groups such as Universities Allied for Essential Medicines and the Medicines Patent Pool. The model of pledging rights to the public through an easy to use but legal instrument is the core of Creative Commons’s work.

The Pledge

The Open COVID Pledge is simple. An entity making the Pledge promises “to make our intellectual property available free of charge for use in ending the COVID-19 pandemic and minimizing the impact of the disease.” To take it, one merely issues a public statement adopting the Pledge and notifying opencovidpledge.org.

The pledger can then adopt the lightweight template license agreement available on opencovidpledge.org, or write its own license terms. The Pledge does not require that any particular license terms be used, but those terms must be consistent with a baseline set of principles available on opencovidpledge.org (e.g., the license must be royalty-free, it must last for the duration of the COVID-19 pandemic and for a short time after that, it cannot require grantbacks or otherwise restrict the licensee’s use, etc.). The pledger can decide to license all of its intellectual property rights or only some. The point is to create the public record through a free and easy means.

The benefit is that once made in public, whatever terms announced can become enforceable. As the FAQ for the Pledge explains:

A pledge is a promise that the IP owner makes to the public.  In this case, the promise contains the grant of a license and some other things that are discussed below.  When a pledge is made and publicized, the pledger is telling others that they have permission to take the actions described in the pledge.  Even though a written contract is not signed, this promise has legal force, especially if others rely on it and start to make and sell their own products based on the pledger’s IP. https://opencovidpledge.org/faq/

A patch for COVID

The Pledge is what some refer to as “a patch,” “not a fix.” One can support the pledge and still believe that laws need to be changed or that more compulsory measures may be warranted. The Pledge is completely voluntary. It does not itself overcome a recalcitrant rights holder who refuses to share. It is just one tool. But it can be an important one. 

Need for the pledge

One goal of the Pledge is to break down barriers to research that university technology transfer offices can put in place of open science projects. One of the founding scientists on the project described a technology transfer office demanding additional delays and process before sharing patented cell lines and materials with other researchers. 

Another goal is to give a quick and easy tool to rights holders that want to act now in an extraordinary way. Already, Intel made the OpenCOVID Pledge and pledged its entire global portfolio of over 72,000 patents to the fight against COVID-19, https://blogs.intel.com/csr/2020/04/open-covid-pledge/#gs.2tlczx. Medtronic has released its ventilator designs open source. There are other pledges in the works. These kind of pledges can give a green light to innovators and producers to build and supply what we need.

Some organizations are also using their own pledge models that may not adhere to all of the Open COVID Pledge guidelines but nonetheless contribute meaningfully to a public domain for COVID research. We will be tracking and sharing these pledges as well. 

Access to trade secrets

The voluntary nature of the license (you can use your own license) is important because some have noted that the model license applies to all intellectual property “other than trademarks or trade secrets.” Access to trade secrets can be important to research and to promote access to health technologies through competitive production. Neither the pledge nor the license prevent or counsel against rights holders sharing trade secrets. One can take the pledge and include access to trade secrets. The model license presumes, however, that many looking for an easy default license to share the most relevant IP rights would not want to automatically share their trade secrets or trademarks and so it excludes only these forms of IP from its definitions. Importantly, all other forms of IP are defined into the license – including rights to “data” subject to exclusive rights. 

Supporting the pledge

The Open Covid Pledge is open for endorsement by supporters in addition to pledges by IP holders. If your organization wants to encourage IP holders to take the pledge, you can use the Project’s model request and you can publicly join others that have expressed their support. https://opencovidpledge.org/support/ 

IP holders can find the simple instructions on using the pledge at https://opencovidpledge.org/pledge/