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Intellectual property, innovation and tackling Covid-19 – how to do it

Forresters

The last few weeks have been unprecedented both in terms of the devastating impact of Covid-19 and the incredible innovation unleashed to help protect and save lives.  The “Ventilator challenge” has brought together companies and organisations across many sectors – automotive, med-tech, domestic product manufacturers, Universities and health to name a few – to design new ventilators, alternative solutions or modify existing ventilators designs to make them suitable for mass production at speed.

Innovate UK, as part of UK Research and Innovation has announced that it will invest up to £20 million in innovation projects. The aim of this competition is to support UK businesses to focus on emerging or increasing needs of society and industries during and following the Covid-19 pandemic. By fast-tracking innovation, the UK will be better placed to maintain employment levels, a competitive position in global markets and make the UK more resilient to similar disruption.

Click here to apply for funding.

It is uplifting to see people coming together like this in the spirit of open innovation to solve the problems of the day.  This is only right and proper given the crisis situation we are all finding ourselves in. 

Sustainable open innovation?

Businesses should consider carefully about how to openly innovate so that they can be sure to harness the benefits (and avoid the pitfalls) that may arise, not only during the present phase, but also after Covid-19 recedes.  The innovations developed now will have commercial value beyond Covid-19 and could form the basis of diverse technology applications in many sectors.   Capturing that value, mainly in the form of intellectual property rights such as patents, designs, and copyright, could prove immensely important to helping companies, particularly SMEs, and organisations be sustainable, or simply survive, when dealing with the economic fallout that Covid-19 brings.

But isn’t intellectual property contradictory to collaboration and open innovation?

One of the most extensive forms of open innovation, open source software, can only happen because open source software is subject to copyright and so the creator may grant licences to subsequent users on the creator’s terms to keep the software open, rather than closed (i.e. proprietary), as it is subsequently developed.  The licence permits the creator to control (through legal action) the behaviour of subsequent actors that breach the licence terms.  

The same principle is borne out by some of the largest corporations that engage with open innovation models. IBM, Google, Microsoft, and Philips are prolific patent filers (IBM one of the largest) which allows these businesses to engage with open innovation in a way that they can control.  In other words, they can protect their businesses and prevent inadvertently damaging them instead.

Tesla and Toyota recently opened up parts of their patent portfolios to businesses for the purpose of advancing the proliferation of electric and fuel cell vehicle infrastructure.  These companies have not stopped filing patent applications in these areas.  The patents are important to defining what technology has been licensed, and gives them, as the owners, control over how companies engage with and use that technology into the future. 

Patent applications are a great way to define, very precisely, who owns which technology, which technology is being licensed and under what terms.  This helps avoid any disputes later down the line.

Can you protect your IP after disclosure?

Due to the urgent requirement to supply solutions for the Covid-19 crisis, many companies have bypassed their normal R&D processes including that of securing their IP before sharing or disclosing their innovations and this usually means that you have foregone the opportunity of protecting that IP. 

We would always advise clients / companies to secure their IP prior to disclosure but, even if disclosure has occurred, all may not be lost for the following reasons:

  • depending on the circumstances and details, a disclosure may not be prejudicial because there could be an implicit obligation of confidence which applies to the parties involved;
  • certain countries, most notably the US, have grace periods in patent law for a company’s own disclosures of an invention, e.g. public disclosures, and product sales that allows a patent application to be validly filed during the grace period; and
  • design registrations could still be validly filed within a grace period, generally one year, from a company’s own disclosure. This includes the US, UK and EU.   

So Yes, depending on the details, you may well be able to protect your IP even after disclosure has occurred.

Actions for managing IP in open innovation during Covid-19

To find out what options are available to you we would recommend:

  1. Protect your IP to give you control now and after Covid-19;
  1. Consult an IP attorney even if you think it is not possible to obtain IP protection. Most innovative ideas have an aspect that can be protected, even if they have been disclosed to third parties under certain provisions;
  1. Create a template agreement governing collaboration now (with partners and suppliers etc.) and after Covid-19; and
  1. Create licence (royalty free and otherwise) agreements with provisions based around the Covid-19 pandemic, e.g. time limited royalty free terms.

This article does not represent legal advice and should not be relied upon to make decisions specific to your business.  Specialist legal advice should be sought in relation to any matters requiring consideration. 

If you would like to know more or discuss your situation please contact the authors below, Patent Attorneys from Forresters’ Technology and Engineering team, for further assistance regarding any of the points raised in this article.

Dr Jagvir Purewal (senior associate) and Greg Smith (associate)
Technology and Engineering
Forresters
jpurewal@forresters.co.uk                                                    
gsmith@forresters.co.uk