April 7, 2020

Open COVID Pledgepublic licensing for pandemic response

Open COVID Pledge, a group of scientists, lawyers, and advocates, has launched an initiative for companies, academic institutions, and others to license their intellectual property freely for response to the COVID-19 pandemic. The process is outlined in two steps: first making a public pledge, then following up with a public license, such as one based on a published form.

Intel has signed on and granted a public license. Perhaps predictably, they made some changes to the form. Here’s a redline (or “diff”), the quickest way to see both the published form and Intel’s adaptation:

INTEL OPEN COVID LICENSE 1.0

MARCH 31,APRIL 7, 2020

Having made the Open COVID Pledge, weIntel Corporation (the "Pledgor"), in order to speed the development and dissemination of the technologies needed to end the COVID-19 Pandemic and mitigate the effects of the disease, grantgrants the license described below.

Our intent in doing so is to advance the shared cause of ending the COVID-19 Pandemic, and we do so without any expectation of consideration or compensation, and with knowledge of the rights we are licensing.

1. GRANT AND SCOPE

The Pledgor grants to every person and entity that wishes to accept it, a non-exclusive, royalty-free, worldwide, fully paid-up license (without the right to sublicense) to make, have made, use, sell, import, reproduce, adapt, translate, distribute, perform, display, modify, create derivative works of and otherwise exploit all patent, copyright and other intellectual and industrial property rights (other than trademarks and trade secrets) in products, services, compositions of matter, machines, articles of manufacture, processes, and works of authorship that we have the right to license under these terms (the "Licensed IP"), for the sole purpose of ending the "COVID-19 Pandemic" (as defined by the World Health Organization, "WHO") and minimizing the impact of the disease, including without limitation the diagnosis, prevention, containment, and treatment of the COVID-19 Pandemic.(a) under Pledgor's patents to make, have made, use, sell, and import any patented invention, solely for the purpose of diagnosing, preventing, containing, and treating COVID-19 (the "Purpose"), and (b) under Pledgor's copyrights to reproduce, distribute, perform, display, and create derivative works of Pledgor's copyrighted works solely for the Purpose. This license does not apply to the commercial sale of integrated circuits for data processing, memory and networking, including microprocessors, chipsets, FPGAs and ASICs. Any person or entity who exercises this license agrees by doing so to provide Intel, promptly after request, with documentation sufficient to confirm their compliance with these terms.

2. TIME LIMITATION

This license is effective as of December 1, 2019 and lasts until one year after WHO declares the COVID-19 Pandemic to have ended., but in any event, not beyond January 1, 2023.

3. REGULATORY EXCLUSIVITY

To the extent any laws regarding regulatory exclusivity for new pharmaceuticals are hereafter found to have applicability to the Pledgor's products, Thethe Pledgor will not assert any regulatory exclusivity against any entity for use of the Licensed IP in accordance with the license granted inany of the activities licensed under Section 1, and wethe Pledgor will not seek injunctive or regulatory relief to prevent any entity from doing so.engaging in such activities.

4. DEFENSIVE SUSPENSION

The license and non-assertion covenant granted above shall automatically be suspended, and the Pledgor shall be free to assert the Licensed IPlicensed patents and copyrights against the licensee,any person or entity, if the licenseesuch person or any entity affiliated with the licensee threatens or initiates a suit or legal proceeding alleging the infringement of any patent or other intellectual property rightcopyright against the Pledgor or any entity affiliated with the Pledgor with respect to activity relating to the COVID-19 Pandemicfor any activities this license authorizes others to engage in.

5. NO WARRANTYMISCELLANEOUS

The license granted herein does not supplement or modify any existing agreements between Pledgor and any person or entity who exercises this license. In the event of any conflict between this license and an existing agreement, the terms of the existing agreement shall govern. The license granted herein is "AS IS" without any warranties, express or implied. Except as expressly set forth in this license, no other rights are granted, whether by implication, estoppel, statute or otherwise. All matters related to this license are governed by the laws of the State of Delaware, without reference to conflict-of-laws principles. All suits and other proceedings related to this Agreement are subject to the exclusive jurisdiction of the federal and state courts located in the State of Delaware.

I was involved preparing an early draft of the public license terms, but others have taken the reins and driven the project to public debut. I’m sure all of them would say what hopefully goes without saying here: Open licensing is what we know how to do. We hope that it can help. But it is the ends—responding effectively to this pandemic, and supporting those who are as best we can—not these means, that matter and motivate us. This is not about open source. That’s just our part in doing everything we can.

If your company, university, or other organization has IP that matters for COVID response, and wants to make the Open COVID Pledge, please feel free to reach out to the project at opencovidpledge@gmail.com, to me at kyle@kemitchell.com, or both. All involved will be happy to help with understanding, preparation, execution, and follow-through. It’s why we do what we do.

more posts about: COVID-19 Licensing Patent Copyright

Your thoughts and feedback are always welcome by e-mail.

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