The Open COVID Pledge aims to accelerate solutions to the pandemic by leveraging open licensing practices. It allows intellectual property holders to pledge their IP for use in ending the COVID-19 pandemic through a simple, self-executing, and legally robust public commitment. The panel discussed the legal framework and enforceability of patent pledges, motivations and challenges for organizations adopting the pledge, and the potential impact on researchers seeking IP access to address the pandemic. Next steps include expanding international adoption, connecting pledgees with pledgeors, and leveraging the model for future crises.

1. INTRODUCTION TO THE OPEN COVID
PLEDGE
Creative Commons Global Summit 2020
October 20, 2020

2. Notices
• This information does not, and is not intended to, constitute
legal advice. All information, content, and materials are for
general informational purposes only. No reader should act, or
refrain from acting, with respect to any legal matter based on
this information without first seeking your own legal advice.
• This session is being recorded. This slide deck and the
forthcoming recording are published under a Creative
Commons Attribution 4.0 International License.
• Please insert questions and comments in the “Session Chat”;
we’ll answer after the presentations (~15-20 minutes).
• Join CC for “Internationalizing the Open COVID Pledge”
(https://sched.co/efAB), Wednesday • 15:00 - 16:00 UTC.
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3. Our Panelists
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Isabella Fu, JD
Associate General Counsel
Microsoft
Diane Peters, JD
General Counsel
Creative Commons
Jorge Contreras, JD
Univ. of Utah SJ Quinney College of Law​ Jenny Molloy, PhD
Shuttleworth Foundation Fellow
Dept of Chemical Engineering and Biotechnology
Univ. of Cambridge
Ryan Kennedy
[Title]
[Association]

4. Today’s Discussion
• Overview of the OCP [Diane]
• Legal and policy design [Jorge]
• Motivations and issues for adopters [Isabella and Ryan]
• Potential impact for researchers [Jenny]
• Big picture and what’s next at CC the OCP Advisory Council [Diane]
• Questions (insert in Session Chat)
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5. 5
The Idea
• Researchers, scientists, lawyers want
to accelerate solutions to Pandemic
• Leverage open licenses practices and
community practices
• Central design principles
• simple
• self-executing
• legal robust
• scalable
• standard
Centers for Disease Control

6. The Open COVID Pledge
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“We therefore pledge to make our intellectual property available
free of charge for use in ending the COVID-19 pandemic and
minimizing the impact of the disease.”
(April 7, 2020)
https://opencovidpledge.org/
Translations at https://opencovidpledge.org/the-pledge/

7. 7
Some Legal Specifics
(more resources below)

8. 8
Patent Pledges Defined
• voluntary public commitments
• by patent holders
• to limit the enforcement or utilization
of patents
• without direct compensation

9. 9
Underlying Motivations for Patent Pledges
1) Market Inducement
a) Interoperability
b) Platform leadership
c) Market development (emerging tech)
2) Collective Action
3) Voluntary Restraint
4) Mission Oriented (philanthropic, CSR)

10. 10
Legal Enforceability
Theories
• Contract
• Antitrust
• Property encumbrance/servitude
• Promissory estoppel/reliance: “Market Reliance”
Precedent
• FRAND commitments
• Private cases in US, Europe, Japan, China, Korea
• Recognition/enforcement by antitrust authorities
• Open Source Code and Open Content Licenses
• Cases in US, Europe, others
• Long history of compliance

11. 11
The Open COVID Pledge Licenses
• Form of license: public pledge, either patent only or patent + copyright
• Type of IP: patents, copyrights (if elected) and other intellectual property (but not trademark or trade secrets), but IP which the
pledgor has the right to grant
• Payment: royalty free
• Field of use: for (at least) the purpose of ending the “COVID-19 pandemic” (as defined by the World Health Organization) and
minimizing the impact of the disease, including without limitation the diagnosis, prevention, containment, and treatment of COVID-19
(includes research)
• Defensive suspension upon claim of infringement
• Sublicensing: No
• Term: December 1, 2019 to one year after WHO announces the end of the COVID-19 pandemic, or January 1, 2023, whichever
occurs first
• Special terms: waiver of exclusivity due to regulatory approval
• Governing law: none
• Can always add more permissions, including extension of term

12. 12
Pledgor Perspectives
Motivations for Pledging
Challenges – Legal, Pragmatic and Other
Expected Impact and Change

13. 13
Researcher Perspective
Importance and Relevance
Challenges from a Research // Scientist POV
Desired Outcomes
What’s Needed to be Impactful?

14. 14
What’s next?
• Expanded adoption, internationally
• Working with IGOs
• Identifying and highlighting important IP
• Connecting IP holders with IP seekers
• Sharing stories of impact
• Leveraging as a model for other crises
"Earth" by Kevin M. Gill is
licensed under CC BY 2.0

15. Photo by PhotoAtelier, CC BY
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Questions

16. ocpinfo@creativecommons.org
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17. More Resources
Reading and Resources: https://opencovidpledge.org/about/
General Information: https://opencovidpledge.org/
News: https://opencovidpledge.org/category/news/
FAQs: https://opencovidpledge.org/faqs/
Connect
Follow on Twitter: #opencovidpledge
Join OCP on Slack: [TK]
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18. Speaker Contact Information
• Diane Peters (diane@creativecommons.org)
• Jorge Contreras (cntreras@gmail.com)
• Jenny Molloy (jcm80@cam.ac.uk)
• Isabella Fu (isabella.fu@microsoft.com)
• Ryan Kennedy (rbkenne@sandia.gov)
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