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Ultimately to save lives, UK government vows to indemnify ventilator manufacturers against potential IP and product liability claims

On 3 April 2020, Minister for the Cabinet Office, Michael Gove, wrote to the Chairs of the Public Accounts and the Public Administration and Constitutional Affairs Committees to set out the government's offer to indemnify manufacturers of ventilators against potential intellectual property (IP) infringement or personal injury claims (see COVID-19 : Contingent liability for ventilators). While the government has not commented on the monetary value of the protection it is offering, Gove's letters note that "It is normal practice, when a government department proposes to undertake a contingent liability in excess of £3m … for the Minister concerned to present a departmental Minute to Parliament".
As has been widely reported, companies in various sectors, such as Dyson and Rolls Royce, have recently started manufacturing ventilators in order to meet the increased demand caused by the COVID-19 pandemic. Where the ventilators are based on existing models, manufacturers could face the risk of being sued for infringement of any third party patents or design rights in those models. The government's indemnity intends on shielding manufacturers from such IP infringement claims, so that they can meet increased public demand without the fear of facing costly and time consuming litigation.
The level of comfort this will provide to new manufacturers of ventilators will depend on the monetary value of the government's indemnity. Manufacturers may also derive some additional comfort from the fact that in the current climate, IP rights holders will perhaps be less likely to bring a claim against a manufacturer which is producing life saving devices during a time of national crisis. In fact, British technology firm Smiths Group indicated that it is making the details of one of its ventilators available for other manufacturers to produce in an attempt to tackle the shortage of equipment.

David Knight, co-author of this blog, was quoted on this recent government announcement in Life Sciences IP Review (UK Government backs ventilator makers against potential IP complaints) and MedTech Innovation (Ventilator manufacturers protected against IP rights and product malfunction).

 Please review our Covid-19 hub for updates and get in touch if you require further information.

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