UK patent system ‘no obstacle’ for ventilator production

As part of the UK government’s response to the COVID-19 crisis, British engineers and manufacturers are responding to the UK government’s request for more intensive care ventilators to be produced as fast as possible.

In addition to the problems of sourcing sufficient components and rapidly training up a skilled workforce, there are a number of legal issues to consider in a sector where product safety is paramount. However, it will be of some comfort to know that, from the perspective of IP rights, patent infringement concerns should not pose any real obstacle.

The “Crown use” statutory exemption to patent infringement is a powerful tool for the government to deploy in circumstances where it needs to take decisive action. It can operate in two ways, depending on whether the government has declared a period of emergency.

The options

In non-emergency circumstances, the exemption provides wide-ranging powers for the government to give written approval for acts that would otherwise not be possible without the permission of the patent owner (such as manufacturing and using an invention).

These can be sanctioned to the extent that they are “for the services of the Crown”. As a consequence of approving Crown use, the relevant government department must seek to agree compensation with the patent owner. This applies in particular for any lost profits to the extent that the patent proprietor had spare manufacturing capacity it could have used itself to supply the goods.

The government’s approval can be given in advance or retrospectively.

During a period of emergency, as declared by an Order in Council, the government may approve the use of inventions for a wider range of purposes. These include securing and maintaining sufficient supplies and services essential to the life of the community.

If there were any doubt as to whether the manufacturing of ventilators for use by the NHS would fall under the non-emergency provision of “services of the Crown”, this activity could certainly be covered by the emergency use provision.

To date, the courts have dealt with the Crown use exemption only on rare occasions. In the late 1990s, it was deployed in relation to technology for protecting Northern Irish police stations from bomb blasts.

However, its utility in the context of public emergency situations was demonstrated once again in recent months when it was used successfully by Vodafone in the defence of litigation regarding a telecoms patent that concerned emergency access to the mobile phone network.

Media statements made at the weekend by UK health minister Matt Hancock indicate that the government stands ready to approve any manufacturing efforts which can be marshalled. As British industry rises to the challenge it is reassuring to know that our patent system will not stand in its way.

Richard Fawcett is a senior associate at Powell Gilbert. He can be contacted at:  richard.fawcett@powellgilbert.com