Thoughts on The Open COVID Pledge

Like most of you, in the wake of the unprecedented (in modern times, anyway) COVID-19 pandemic, I have been spending the past several weeks working remotely from home and self-isolating. 

Certainly when compared to the heroic efforts and sacrifices of our healthcare workers and first responders (and let’s not forget those collecting our trash and re-stocking the grocery store shelves), there really is nothing quite like a deadly pandemic to make me and my law degree feel completely useless. 

As I’ve been taking the routine conference calls, responding to e-mails, and completing other client work from the comfort of my home office, I have been trying hard to think of ways that I could make my decades of legal experience useful to the Arizona biotech, research, and medical device community in their fight to help mitigate and hopefully eliminate novel Coronavirus.

Apparently I am not alone, as earlier this year, a group scientists, lawyers, and entrepreneurs came up with an initiative called the “Open COVID Pledge”. 

In much the same way that the open source licensing revolution has enabled consumer and enterprise software, mobile apps, and associated technologies to rapidly adapt and flourish, the intent here is to allow companies, universities, and private research institutions Worldwide to hasten the development of new technologies to combat and (ideally) eliminate COVID-19 through the open sharing of intellectual property of other participants. Doing so, in theory, would bypass the usual delays and expense of crafting licensing and royalty arrangements.

The Open COVID Pledge carries two levels of participation:

  1. An organization can “support” the Open COVID Pledge, merely expressing support without any obligation, or
  2. An organization can “make the Pledge” and actually commit some or all of its IP for the purposes of fighting the COVID-19 pandemic.

An organization opting for the “Pledge” may then grant a license for some or all of its intellectual property by either using the Open COVID License (a copy of which can be found here), or it can create its own license with terms that are at least as permissive as the Open COVID License.  

The Open COVID Pledge program went active on April 7, 2020 and has already received a number of pledges, notably including Intel, AbbVie, and Medtronic, in addition to research institutions such as Stanford University, UC Berkley, Harvard, and MIT. It should be noted that organizations pledging by April 21st will be labeled “Founding Adopters”.

By the model license’s terms, the license is good from December 1, 2019 through one year after the “World Health Organization declares the pandemic to have ended“.

My take on the Open COVID Pledge is that it is a tremendous idea, and I hope that the initiative will continue to gain traction and accelerate.

I like that the Pledge is flexible and that participants can tailor the model license to create their own “Open COVID” license (so long as the terms of use are at least as permissive as the Open COVID License).

A medical device maker, for example, might want to guard against any commercial exploitation of the technology pledged, whereas a biotech startup might want to draft carve-outs for non-COVID related therapies or applications.  Both would want to clarify that no actual ownership of any IP is being transferred through the license and include a “hard” end date that differs from that in the model license.  

While the model license is a great start, like any “one-size-fits-all agreement”, companies and other IP holders should really discuss the business and legal ramifications of their pledge and review the specific terms of any Open COVID license with their legal counsel to make certain that their version has the necessary protections vital to their financial success post-COVID pandemic.

If you are a bio technology or research start up looking for help or guidance with your current licensing arrangements and are considering entering into the Open COVID Pledge, we salute you and are here to help. For prospective and existing clients involved in developing and scaling Coronavirus therapies and associated technologies (e.g., PPE, ventilators, testing kits, etc.), we are pleased to offer our counsel and legal services at deeply reduced rates. 

In the meantime, those of us here at BHANDLAW, PLLC hope all of you and your families are staying healthy and safe!

Ben Bhandhusavee is the Managing Attorney for BHANDLAW, PLLC, a Phoenix business and technology law firm working with start-up companies, creative intellectual property, Internet and digital media matters, and complex corporate M&A and technology transactions.  Ben can be reached at (602) 222-5542 or by e-mail at bbhand@bhandlaw.com