Drawing analogy to tort law, this Article proposes Good Samaritan exemptions to certain intellectual property laws in the wake of the novel coronavirus pandemic. As exemplary of the need for Good Samaritan laws in the context of IP, we consider, as a case study, the massive risk of infringement and subsequent liability in connection with widespread shortages of personal protective equipment (PPE) imperative to frontline healthcare workers.

On January 20, 2020, the U.S. recorded its first case of coronavirus 19. By April, numerous hospitals had exhausted entire PPE supplies, with looming uncertainty as to when they would be replenished. As infection number increased exponentially, PPE manufacturers across the globe received production requests that well-exceeded their capacity by 2–3 times. Automotive part manufacturers were repurposed to reconfigure their infrastructure to produce components to life-saving medical ventilators. Yet even still, shortages persisted, many months after the first reported COVID-19 case.

Volunteers across the nation assembled teams of makers—some professionals, but also scores of amateurs—to craft the critical equipment needed to slow down the onslaught of the pandemic. From cloth masks to ventilator pistons, nonprofits and everyday citizen volunteers were able to partially alleviate a need the private sector could not meet, a problem only exacerbated in rural regions of the country. In Arkansas, for example, a small, understaffed nonprofit produced 10,000 pieces of PPE within a three-month window following the first case of the virus in the state.

There exist vast potential liabilities for IP infringement for these Good Samaritans whose intentions can be directly, and in many cases entirely, related to other imminent need for protection against disastrous plague-like conditions. For example, using open-source, freely dispersed blueprints could in fact be in unwitting violation of an obscure, pre-existing invention whose patent is buried within the unwieldy database of the U.S. Patent and Trademark Office. And, unlike tort law, there is no Good Samaritan safety valve relating to patent law or other IP regimes. This risk of IP infringement no doubt dissuades would-be heroes from assisting during a great time of need.

Using this PPE production dilemma as a case study, this article considers the logistical and legal obstacles to accommodating Good Samaritan uses of intellectual property. The analysis recommends a procedure to limit or defer liability and provide appropriate remedies, as well as incentive crucial and well-meaning acts in times of pandemic.