The Need for the Tort Law Necessity Defense in Intellectual Property Law

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University of Chicago Legal Forum

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The COVID-19 pandemic has laid bare inherent tensions between the protection of intellectual property (IP) and the health of individuals touched by life-threatening medical conditions. A few examples have even made front page news. Hospitals are searching desperately for ventilator parts while 3-D printing instructions for such parts remain unshared for fear of liability. And potentially lifesaving medicines remain out of reach because their manufacture and distribution on sufficient scale is limited by the threat of patent infringement. The threat of liability for IP infringement also dampens the ability to innovate under emergency conditions, intensifying the tension between the protection of IP and the protection of human lives. A number of policy responses have been proposed to address this tension, including the exercise of government rights under the Defense Production Act to IP contexts; government use of patented technologies; compulsory licensing; legislation that would allow for emergency overrides to IP protections; and efforts to encourage companies to make their IP freely available on a voluntary basis, most notably through the Open COVID Pledge. But fears of disrupting IP protections have curtailed the use of these measures, leaving the tensions between IP protection and lifesaving access largely untouched. Instead of looking for solutions that would entail legislative action, a stretch of emergency powers, or vague private commitments, we suggest that the law already provides a mechanism for addressing this tension in the form of the age-old common tort law doctrine of necessity (aka lesser-harm or lesser-evil defense). Our proposed use of the necessity defense is specifically designed to address the lack of adequate mechanisms within IP law to balance the social value of preventing harm through unauthorized use of IP against the social value of providing strong property rights in lifesaving technologies. Even where the public interest is explicitly taken into account--such as in the case of judicial decisions to grant an injunction against a patent infringer or under the copyright fair use doctrine--the nature of this public interest remains amorphous, the weight it carries limited, and it is usually untethered from concerns about access to lifesaving technologies. We suggest that the defense of necessity can help inject responsiveness to urgent public health needs into the IP ecosystem in a way that avoids significant changes or impediments to its functioning. While drawing from examples that are specific to a highly disruptive public health crisis, our proposal also responds to broader, systemic shortcomings in the way IP law impacts access to lifesaving technologies


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Recommended Citation

Yaniv Heled et al., The Need for the Tort Law Necessity Defense in Intellectual Property Law, 2021 U. Chi. Legal F. 127 (2021)





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