Open Licensing to Fight COVID-19

The rapid spread of COVID-19 has prompted generous responses from public and private actors that would be unthinkable in ordinary times.  

Medtronic plc is an Irish medical technology company that markets the Puritan Bennet 560 – a compact, lightweight, and portable ventilator. As a notable benefit, the PB 560 ventilator can provide mobile support. In response to the US FDA’s March 2020 ventilator guidance and to enable more rapid manufacturing of the ventilators, on Monday Medtronic publicly shared its PB 560 design specifications.

To receive the design documents, interested manufacturers must agree to certain conditions, notably a permissive license to use the material. Specifically, Medtronic grants downloaders of the design documents a non-exclusive, royalty-free, world-wide license to, among other things, make and sell ventilators based off the PB 560 design for the specific and limited purpose of responding to the COVID-19 pandemic.

The permissive license is a simple three-page document. It contains provisions clearly meant to protect Medtronic, such as limitations of liability, and an explicit disallowance of the use of Medtronic’s trademarks. Licensees must also include a warning that the ventilator was created in response to the COVID-19 pandemic.

But the license is especially interesting in how it addresses modifications or improvements to the PB 560 specifications. Parties that modify, transform, improve, or build upon specified contents of the design documents are required to make such changes available on licensing terms identical to those of the permissive license. Those familiar with Creative Commons copyright licenses may recognize this as similar in concept to a “Share-alike” license.

Medtronic’s decision is an interesting example of the ad hoc balancing of IP protection and open access during dynamic events. But some have pointed out that its permissive license also leaves questions unanswered. The license’s “Limited Term” is set to the earlier of the end of the World Health Organization’s PHEIC procedure or October 2024. And the license suggests that downstream users of the design documents are entitled to create and own IP assets for modifications to the PB 560 design (as long as the such IP is licensed back on identical terms). But the question is, what happens to IP owned by downstream users after the end of Medtronic’s license?

One answer may be in the limited purpose – Medtronic may not believe that the purpose of responding to COVID-19 will continue to apply after the Limited Term. Nevertheless, a strict reading of the permissive license would suggest that, after the defined term, potential licensees would no longer be entitled to access such IP

Ultimately, the near-term benefit of more ventilators is likely all that matters. Though the issue pales in comparison to current concerns, it is conceivable that a whole swath of ventilators will one day exist without the licenses in place to permit their lawful use, even during a future pandemic.

To learn more about the broader trend of open or collaborative innovation models, check out our recent report on IP Strategy.