Governmental Use of Patented Inventions during a Pandemic: A Global Survey

Key Contacts: Jeffrey Lewis (New York), Jenny Shum (New York), Clemens Rubel (Munich), Seiko Hidaka (London), Justin Davidson (Hong Kong SAR), Jackie O’Brien (Sydney)

Around the globe, pharmaceutical and medical device companies are helping in the fight of the COVID-19 pandemic. Many of these companies may have patents pertaining to technology that could be used for the benefit of the broader public during this time of crisis, such as patents on ventilators, diagnostic tests, pharmaceuticals or personal protective equipment. Governments around the globe have mechanisms in place that can mandate the use of patented inventions during a national emergency. In the event of such an occurrence, companies need to be aware of their rights and the variations that jurisdictions are taking to balance the use of patents for emergency relief and the public good.

Norton Rose Fulbright is at the forefront of helping pharmaceutical and medical device companies navigate the various patent regimes around the globe. Our team of experts has put together a quick-reference guide illustrating how various key jurisdictions may approach the use of patented inventions during an international or national crisis. The reference guide provides a high-level overview of the governmental authorization provisions in Canada, the United States, France, Germany, the Netherlands, the United Kingdom, Hong Kong, China, Singapore and Australia.

Of the jurisdictions included in this article, to date, Canada, France and Germany have made legislative changes, stemming from the COVID-19 pandemic, which could have an effect on the use of patented inventions. However, all of the discussed countries have existing regimes that allow for the use of patented inventions in times of an emergency such as the COVID-19 pandemic. Based on publicly available information, none of the discussed countries have yet to engage the emergency relief provisions in the face of the current pandemic. The willingness of pharmaceutical and medical device companies worldwide to work together to find solutions to COVID-19 may be why none of jurisdictions have needed to exercise their powers under these emergency relief provisions.

A link to the reference guide can be found here.

Any specific inquiries regarding local or global implications of emergency relief provisions impacting patent rights and their use can be directed to the key contacts.