Intellectual property

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With over one million diagnosed cases of COVID-19, which is present in almost every country in the world, causing thousands of fatalities, national governments have been taking drastic measures to fight the spread of the outbreak and mitigate its devastating effects.

Fortunately, throughout history, humanity has shown a commendable capacity to mobilize in times of crises in an attempt to overcome them. And when exceptional circumstances demand immediate and assertive responses, many of us show a willingness to contribute toward resolving the crisis.

During the COVID-19 pandemic, individuals and companies, through applying their specialized knowledge and experience, are taking the initiative to contribute to the fight against the pandemic, in a bid to save lives.

  • Practical initiatives: should I stay, or should I go?

In the past few days, a group of volunteers in Lombardy, which is the region most affected by the pandemic in Italy, has resorted to 3D printers to create fan valves, which help treat patients infected with COVID-19 who have critical health conditions. These valves, when printed in this way, have a production cost of approximately €1.00 per unit, which is significantly lower than their usual market cost of €10,000 per unit. Whether the product is comparable to the original is uncertain, but what the initiative demonstrates is the volunteers’ immense solidarity and altruism.

Based on the information available, in this case, the volunteers contacted the company that produces the valves and that holds the respective intellectual property rights, requesting the drawings so they could start the molding of the 3D model, which is essential for printing new units. Although the company allegedly refused to provide the drawings, based on the information available, the volunteers have decided to use reverse engineering techniques to continue with the project.

With this strategy, the volunteers could print a considerable number of valves at a fraction of the usual cost, helping the Italian State save lives in its battle against COVID-19.

This initiative is praiseworthy from a moral and humanitarian perspective. However, the actions of volunteers, however humanitarian, should not (and cannot) infringe on third parties’ possible intellectual property rights, as the respective rights holders have the legal means to respond to these infringements.

  • Applicable law: if I go, there will be trouble and if I stay it will be double

In Portugal, intellectual creations are protected by two legal regimes: copyright and industrial property rights. Trade secrets may also be at stake, but we will leave this out of our analysis.

Regarding copyright, the rights holder has the exclusive right to authorize third parties’ use of the work. Whoever uses the work without its owner’s authorization commits the crime of usurpation, which is punishable by imprisonment for up to three years or a fine of 150 to 250 days, with negligence punishable by a fine of 50 to 150 days.

Regarding industrial property rights, these types of inventions or creations (in this case, the valves) may be protected by patents or utility models, which give their holders the exclusive right to exploit the respective inventions.

When inventions or creations are protected by these rights, third parties must obtain a license to use them.

In this case, what if the right holder refuses the license? To what extent is it acceptable to block the urgent printing and provision of valves, or other products, designed to save human lives?

To resolve cases like this, there are mandatory licenses. In certain situations, namely, the insufficient exploitation of the invention, or the existence of reasons of public interest that justify it, the rights holders may be compelled to license the inventions.

The law determines whether there is a public interest in licensing a patent, whenever exploitation by the licensee is of primary importance for public health. Something that, in this case, may seem unavoidable.

Therefore, a legislative act to license the exploitation of an invention could be possible, attributing adequate compensation to the rights holder, which could be streamlined to ensure the volunteers’ humanitarian initiative is within the law at the time as protecting the patent holder’s rights.

However, without a legislative initiative of this type, these actions, which, we reiterate, are commendable, may entail civil, administrative and even criminal liability for their authors, with serious consequences.

In the current context of the COVID-19 outbreak, cases like this require reflection and caution, which are particularly important when we recall the famous phrase of the economist and philosopher Friedrich August von Hayek: “Emergencies have always been the pretext on which the safeguards of individual liberty have been eroded.”

Authors: Sónia Queiróz Vaz, Francisco Branco Pardal and Teresa Isabel Gonçalves

This post is also available in: Español

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sonia.queiroz.vaz@cuatrecasas.com

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teresa.goncalves@cuatrecasas.com

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francisco.pardal@cuatrecasas.com