26/03/2020
The COVID-19 pandemic has created a worldwide shortage of ventilators, and in the UK, the National Health Service (NHS) is soon expected to require significantly more ventilators than are currently in circulation. As a result, on Monday 16th March, the UK government called for businesses to help make ventilators and ventilator components in an attempt to dramatically increase the number of ventilators available to the NHS in a matter of weeks.
In response, existing manufacturers of ventilators in the UK are increasing production to try to meet the government’s ambitious targets. Breas Medical, a Swedish company that makes ventilators in the UK, has said that they have increased production staffing and are operating seven days a week. Smiths Group has announced that it is significantly ramping up production at the Smiths Medical facility in Luton of the PARAPAC Plus ventilator, which is a lightweight ventilator typically used by paramedics and respiratory therapists. Penlon, an Oxfordshire based manufacturer of anaesthesia machines, which include ventilators, has also developed an action plan, and has published instructions of how to use the Nuffield 200 Anaesthetic ventilator when ICU ventilators are limited in supply.
In addition to existing manufacturers of ventilators, other businesses in the UK manufacturing sector that do not currently manufacture ventilators are also responding to the government’s call. A consortium of aerospace and automotive companies, including Meggitt, Airbus, GKN, and McLaren are leading the efforts to fast track a simpler ventilator system that can be rapidly manufactured in large volumes. The efforts to produce a new design for a rapidly manufactured ventilator system (RMVS) are being co-ordinated by the High Value Manufacturing Catapult, whose Chief Executive Officer, Dick Elsy, has deferred his planned retirement to support the manufacturing sector’s response. Dyson has also separately announced that it is developing a new type of ventilator in collaboration with The Technology Partnership, a medical company based in Cambridge.
It is possible that existing IP rights may be infringed by one of the new ventilator designs, and as such, there is a chance that existing IP rights may present an obstacle to bringing the new ventilator designs to market. However, in this author’s opinion it is unlikely that existing IP rights will slow the route to market for any newly designed ventilator in view of the current pandemic.
Firstly, some owners of relevant existing IP rights may simply be willing to voluntarily share the IP rights with the UK government, and others, in response to the government’s call. For some businesses, the decision to share relevant IP rights may be made because it is considered to be the right thing to do. For other businesses, the positive PR resulting from sharing relevant IP rights may be sufficient compensation.
Examples of sharing of relevant existing IP rights are already emerging. For example, in addition to increasing production of the PARAPAC Plus ventilator, Smiths Group has also announced that they will provide IP and technical advice to others.
Secondly, where a holder of an existing UK patent or design registration is not willing to cooperate voluntarily with the UK government, the government may make use of so called “Crown use” exemptions to allow others to make use of the patent or design registration for the services of the Crown, without the prior agreement of the owner. Crown use exemptions have been invoked rarely in the past, but some experts believe it is very possible that the UK Government could invoke Crown use exemptions in the current circumstances to allow for rapid delivery of new ventilators to the NHS.
So far, the UK manufacturing sector has reacted swiftly and commendably to the UK government’s call to action. However, it seems that the efforts in this sector will need to continue at a pace for some time to come in order to produce the necessary numbers of ventilators to meet the government’s ambitious targets.
The UK government is still looking for businesses who can support the UK supply of ventilators and ventilator components as part of the response to COVID-19. As well as manufacturers, the UK government are looking for businesses with the following skills:
• design/specification
• rapid prototyping
• contract/product assembly
• certification/regulation/testing
• logistics
• medical training
If you think your business can help, please register your details with the Department for Business, Energy & Industrial Strategy (BEIS) here.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
