A race against time for ventilators
A recent article published by News24 examined the shortage of ventilators in South Africa in the midst of the coronavirus pandemic, presenting possible solutions to avoid a catastrophic loss of life.
It is reported that South Africa has only 4 000 ventilators available, most of which are to be found in the main metropolitan areas. To worsen this situation, help is not coming soon, since Africa’s call for additional ventilators has taken a backseat. As a result, South Africa must come up with an alternative arrangement to produce and/or procure ventilators for its most vulnerable people.
The Nuffield 200 ventilator
One option under consideration by the South African government is producing its own ventilators, with the Nuffield 200 ventilator as its first choice. The Nuffield 200 ventilator is a pneumatically driven time-cycled ventilator with preset volume and flow rate. The reason it is such an attractive option is because it is O₂-driven, without the need for electrical power.
Because the Nuffield 200 ventilator is almost 40 years old, any patent or design registration it might once have had, has expired. The only form of Intellectual Property that could prevent the South African government from producing the Nuffield 200 ventilator comes in the form of copyright.
But believe it or not, the Nuffield 200 ventilator could be considered a work of craftsmanship, afforded protection under the provisions of the Copyright Act as an “artistic work”.
Should it comply with the requirements for copyright in South Africa, the owner will have the exclusive right to reproduce the artistic work in any manner or to convert the two-dimensional drawings into three-dimensional form. The Copyright Act is generous in that it affords the copyright owner protection over its copyrighted work for the life of the author/creator, plus 50 years.
As such, the Nuffield 200 ventilator will still be afforded copyright protection in South Africa, and this could put a stop to the South African government’s plans to produce it.
An exception to the rule
However, the Copyright Act also makes provision for an exception to this right in the form of Section 15(3A) of the Act. In terms of this section, the copyright in an artistic work of which three-dimensional reproductions were made available to the public with the consent of the owner, is not infringed by further three-dimensional copies or adaptions of the original work – provided that the original work has a utilitarian purpose and is made by an industrial process.
What this section therefore allows is reverse-engineering of the ventilator.
Any entity would be entitled to take the actual Nuffield 200 ventilator and reverse-engineer it. What they would not be entitled to do is obtain the original drawings and create the ventilator from those.
Section 15(3A) was introduced in 1988 and constitutes a compromise between the wide protection offered by Copyright Law, and free enterprise, which promotes the reproduction of purely functional items that are in the public domain, in the absence of other forms of protection like a patent.
In practice, three-dimensional works are typically created from two-dimensional drawings, and reproducing the product by reverse-engineering the three-dimensional version in the market can be a slow and costly process. That’s the protection that Section 15(3A) affords the copyright owner: “Your drawings are safe, but if a competitor wants to go to the trouble and expense of reverse-engineering your actual product in the market, he or she may do so.”
An approach to the manufacturer
To avoid a delay in the production of these ventilators, a group of South Africans led by Justin Corbett, wrote to the manufacturer of the Nuffield 200 ventilator, Penlon, with a request for the production drawings and quality documents to facilitate the production of the Nuffield 200 ventilator in South Africa. Unfortunately, Penlon responded that they are “currently marketing Nuffield ventilators and hence transferring all drawings etc would be difficult”.
From a legal point of view, their answer is correct. But there’s nothing difficult about making the drawings available, and Penlon cannot stop the more laborious reverse-engineering process, so all it has done is buy itself some time to market its Nuffield 200 ventilator without competition.
But at what cost to society?
During this time of crisis, we can expect many other companies to follow in Corbett’s footsteps, by reverse-engineering certain medical equipment to assist in combatting an unprecedented pandemic. Fortunately, as illustrated above, the South African legal system provides some sort of relief for manufacturers like Corbett and his team, but perhaps what society really needs right now is cooperation in sharing original drawings to facilitate the process.
* Reinard Krüger is a Trade Mark and Copyright Attorney with LLB and LLM cum laude degrees. He is a partner at Spoor & Fisher, South Africa.
Originally published in IOL