The last few weeks have been unprecedented both in terms of the devastating impact of Covid-19 and the incredible innovation unleashed to help protect and save lives. The “Ventilator challenge” has brought together companies and organisations across many sectors – automotive, med-tech, domestic product manufacturers, Universities and health to name a few – to design new ventilators, alternative solutions or modify existing ventilators designs to make them suitable for mass production at speed.

It has just been announced that Innovate UK, as part of UK Research and Innovation will invest up to £20 million in innovation projects. The aim of this competition is to support UK businesses to focus on emerging or increasing needs of society and industries during and following the Covid-19 pandemic. This highlights how important the UK government considers innovation to be in solving the problems presented by Covid-19.  In particular by fast-tracking innovation, the UK will be better placed to deal with the current crisis and to more quickly adapt to any future epidemics. Fast-tracking innovation will also help improve the services offered by the NHS and thus maintain the high standard and global recognition of the NHS as a world leader in healthcare.

It is uplifting to see people from different backgrounds, clinicians, businesses and research institutions alike, coming together in the spirit of open innovation to solve the problems of the day. This is only right and proper given the crisis situation we are all finding ourselves in.

Innovation in the NHS

Many innovations arise from the NHS with staff often innovating to improve existing products to make them better, or have ideas for a whole new product. The NHS has an established system of technology transfer managed by organisations like MidTECH that liaise with NHS Trusts and industry. These times will be no different and NHS staff will increasingly be collaborating with companies and organisations to find innovative solutions to help with the Covid-19 challenge.

In doing so, its staff should follow existing IP processes around managing innovation when openly innovating with third parties so that the NHS can be sure to harness the benefits (and avoid the pitfalls) that may arise, not only during the present phase, but also after Covid-19 recedes. The innovations developed now will have value beyond Covid-19 and could form the basis of diverse technology applications in many sectors.  Capturing that value, mainly in the form of intellectual property rights such as patents, designs, and copyright, could provide revenue streams to help the NHS in the future.

But isn’t intellectual property contradictory to collaboration and open innovation?

One of the most extensive forms of open innovation, open source software, can only happen because open source software is subject to copyright and so the creator may grant licences to subsequent users on the creator’s terms to keep the software open, rather than closed (i.e. proprietary), as it is subsequently developed. The licence permits the creator to control (through legal action) the behaviour of subsequent actors that breach the licence terms.

The same principle is borne out by some of the largest corporations that engage with open innovation models. IBM, Google, Microsoft, and Philips are prolific patent filers (IBM one of the largest) which allows these businesses to engage with open innovation in a way that they can control. In other words, they can protect their interests and prevent inadvertently damaging them instead.

Tesla and Toyota recently opened up parts of their patent portfolios to businesses for the purpose of advancing the proliferation of electric and fuel cell vehicle infrastructure. These companies have not stopped filing patent applications in these areas. The patents are important to defining what technology has been licensed, and gives them, as the owners, control over how companies engage with and use that technology into the future. In the same way, the NHS can encourage innovation and maintain control over how companies engage with the NHS whilst still reaping the benefits of the subsequent development of the technology.

Can IP associated with innovations be protected after disclosure to third parties?

Due to the urgent requirement to supply solutions for the Covid-19 crisis, there is pressure to bypass the normal processes including that of securing IP or completing non-disclosure agreements (NDAs) before sharing or disclosing innovations at avoid losing the ability to protect IP associated with innovations.

You may think that once a disclosure has occurred all is lost. However, this may not be the case for the following reasons:

  • depending on the circumstances and details, a disclosure may not be prejudicial because there could be an implicit obligation of confidence which applies to the parties involved;
  • certain countries, most notably the US, have grace periods in patent law for a company’s own disclosures of an invention, e.g. public disclosures, and product sales that allows a patent application to be validly filed during the grace period; and
  • design registrations could still be validly filed within a grace period, generally one year, from a company’s own disclosure. This includes the US, UK and EU.

So, even if a disclosure has occurred you should still reach out to the relevant person to enable them to take a call on whether or not protection can still be obtained.

If you would like to discuss your innovation then please contact James Turner at or the relevant individual to you for protecting IP, for further assistance regarding any of the points raised in this article.

Dr Jagvir Purewal                                                       Greg Smith                              

Senior Associate                                                         Associate

Technology and Engineering                                     Technology and Engineering