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Coronavirus – paving the way for an unusual IP exemption

The UK government has promised it will shield manufacturers of new ventilators from the cost of potential legal claims over intellectual property infringements, or personal injury caused by defective machines. This unusual step is intended to encourage manufacturers to help with the shortage of key medical equipment during the coronavirus crisis. In correspondence to the Public Accounts Committee, cabinet minister Michael Gove stated:

“I am writing to ask you, therefore, to note two contingent liabilities that flow from this work to increase the production of ventilators.

“The first is to indemnify the third-party Intellectual Property Rights for the designers of the Rapidly Manufactured Ventilator Systems (RMVSs) and for the contract manufacturers of these RMVSs. The second is to indemnify the product liability for the designers of the RMVSs and for the contract manufacturers of RMVSs. Both cases are driven by the unprecedented speed of the development of these medical devices. The indemnities are essential for the emergency provision of ventilators to be procured at pace.”

Arguably, there was no need to offer these indemnities since the existing powers of Crown Use could have been invoked. These allow any arm of government (and anyone authorised by them in writing) to use an invention without that being an infringement – although a reasonable royalty will be paid to the patentee by the Government. However, an explicit indemnity is probably welcomed by many, since it (presumably) covers the potential legal costs involved and removes any uncertainty as to the exact position of the contract manufacturers.

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