Document Type

Article

Publication Date

2022

Publication Information

11 Arkansas Journal of Social Change and Public Service 30 (2022)

Abstract

On January 21, 2020, the United States recorded its first case of COVID-19. By April of that same year, numerous hospitals across the nation had exhausted entire reserves of personal protective equipment (PPE), with looming uncertainty as to when they would be replenished. As infection numbers increased exponentially, global demand for some types of PPE increased by 1000%.

Volunteers across the nation assembled teams of makers—some professionals, but also scores of amateurs—to craft the critical equipment needed to slow down the onslaught of the pandemic. From creating cloth masks to ventilator pistons, nonprofits and everyday citizens were able to partially alleviate a need that neither the private sector nor the government could address adequately.

Extensive potential intellectual property (IP) infringement liabilities exist for these well-meaning volunteers. For example, using open-source, freely-dispersed blueprints could in fact be an unwitting violation of an obscure, pre-existing invention whose patent is buried deep within the unwieldy database of the U.S. Patent and Trademark Office. Moreover, the threat of liability extends beyond micromanufactuers to include also distributors, distribution facilitators, and those who circulate patented plans or copyrighted ideas.

Currently, no defenses to such infringement exist, dissuading would-be heroes from assisting during a great time of need. As one recent commentary notes, “[t]he threat of infringement also dampens the ability to innovate under conditions of emergency, intensifying the tension between the protection of IP and the protection of human lives.” Defendants could, however, look to other legal doctrines. In analogizing intellectual property to the common law, one might argue for a Good Samaritan doctrine or to the necessity defense to trespass from tort law. As in landlord-tenant law, to the extent that rents for real property have been deferred during the time of the pandemic, perhaps certain instances of intangible property “rent seeking” by the owners of patents and copyrights might be justifiably put on hold as well. Defendants in IP lawsuits could also look to creative applications of existing exceptions in patent law such as march-in rights and the Defense Protection Act.

Using this PPE and medical device production dilemma as a case study, this Article will consider the logistical and legal obstacles to accommodating public interest uses of intellectual property. My analysis will recommend a procedure that would limit or defer liability and provide appropriate remedies, and also would incentivize crucial and well-meaning acts in times of pandemic.

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