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.