Help Was Not on the Way: Intellectual Property Liability Relief in a Pandemic Era

Abstract

This Article argues for certain exceptions to intellectual property liability—particularly regarding patents and copyrights—during times of crisis, especially for those who are volunteers contributing to response efforts. The authors first consider the massive risk of liability associated with the good faith efforts of nonprofits and individuals who are micro-manufacturing personal protective equipment (PPE) and other medical devices during a public health crisis. The Article discusses potential relief options such as compulsory licensing, march-in rights, and Defense Protection Act rights by proxy, and also draws on analogy to tort and real property doctrines including Good Samaritan laws, the doctrine of public necessity as a defense to trespass, and postponement of evictions during COVID-19 in real property to the extent that each may be helpful in fashioning an analogous statutory emergency declaration as to certain forms of intellectual property liability.

Keywords: TRIPS waiver, march-in rights, intellectual property, COVID-19