Patent law and 3D printing applications in response to COVID‐19: Exceptions to inventor rights

Abstract

Three‐dimensional (3D) printing technology offers promise in relation to much‐needed health technologies associated with COVID‐19. Additive manufacturing, which allows the rapid conversion of information from digital 3D models into physical objects, is uniquely well‐positioned to address the shortage of critical medical devices by enabling the fabrication and repair of medical devices in a timely and cost‐effective manner. This paper examines the issue of patent rights being at odds with access to critical 3D printable health technologies during COVID‐19 crisis. It undertakes an in‐depth analysis of the right to repair and calls for a clearer recognition of the right to repair exemption at the global level. It also evaluates the private and noncommercial use exception and proposes the use of a reasonably broad form of this exception to make it practically significant. It also considers the experimental use exception and calls upon World Trade Organization Member States to provide legislative clarity that a defense of an experimental use extends to repairs. This study is crucial because access to necessary health technologies, in a pandemic context, is a matter of life and death for millions of patients around the globe, especially for underprivileged patients in resource‐constrained countries.

The Medical Right to Repair: Intellectual Property, the Maker Movement, and COVID-19

“…The author's colleague Dr. Muhammad Zaheer Abbas also made a submission to the Productivity Commission, observing that repair with the help of 3D printing technologies was critically important for medical technologies during the COVID-19 crisis [157]. He later expanded upon the need for patent exceptions for the right to repair to better enable 3D applications in response to the COVID-19 crisis [158].…”

“…He has argued that 'legislative measures to assure the right to repair are fully consistent with the World Trade Organization's [TRIPS Agreement 1994]' [164]. Likewise, Muhammad Zaheer Abbas has explored whether a medical right to repair would be consistent with the TRIPS Agreement 1994 [158]. He has argued that 'Facilitating increased experimental and repair activity by creating a safe harbor for experimentation with medical devices will better prepare countries to deal with a future pandemic' [158].…”

“…Likewise, Muhammad Zaheer Abbas has explored whether a medical right to repair would be consistent with the TRIPS Agreement 1994 [158]. He has argued that 'Facilitating increased experimental and repair activity by creating a safe harbor for experimentation with medical devices will better prepare countries to deal with a future pandemic' [158]. Rosa Ballardini and her colleagues have explored what exceptions would be permitted for 3D printing in medical emergencies under the TRIPS Agreement 1994 [65].…”