Intellectual Property

Intellectual Property is under assault at five (5) Universities in Kansas, included of which is the University of Kansas and Kansas State University. What is intellectual property? Intellectual property is the right of an individual, who has not signed an agreement otherwise, to retain ownership of research, art, music, books, etc. which the individual creates. However, the Board of Regents has laid down a proposal which seeks to strip professors and students of their ownership rights to these things. According to the Regents' proposal, "greater than incidental use of University resources, facilities, or equipment" will result in the University taking over ownership of these creations. It is my opinion that this is exactly what the Board of Regents want.
What is happening here is that Universities are gaining the corporate mentality more than ever. Corporations have already laid to waste much of our society in their incessant drive to accumulate capital. Help us stand up to these authoritarian Regents and the Governor who appoints them while our Universities are still places of education, instead of just another place to be used to advance corporate interests.

We cannot stand against them alone. To help us in our efforts and to voice your outrage at this debacle, you may:

Below is the Board of Regent's proposal, word for word. As you read it, note how often the word CORPORATION is used.

DATE: May 6, 1997
TO: Faculty Senate and General Faculty
FROM: Don Viney (Lame Duck President of Faculty Senate)
RE: Draft of Board of Regents Intellectual Property Policy

Dr. Ratzlaff mentioned at last month's Faculty Senate meeting that the staff of the Board of Regents was working on a policy on intellectual property. The initial draft of that policy is attached. This policy will be discussed at the May meeting (May 14-15) of the Regents in both the Council of Presidents (of which Dr. Darling is a member) and the Council of Chief Academic Officers (of which Dr. Ratzlaff is a member). If those councils recommend this policy, it could be discussed at the June meeting of the Regents. It is important that Dr. Darling and Dr. Ratzlaff know what the faculty at PSU think about this policy so that they can better represent our interests. In addition, this policy is clearly relevant to the discussion of PSU's own policy on intellectual property that is on the agends for this month's meeting of the Faculty Senate (May 9). Finally, this policy is also clearly a matter for consideration by PSU-KNEA. I offer this for your consideration and comment.

25.INTELLECTUAL PROPERTY POLICY

Preamble and Scope

The purpose of the Board of Regents policy on intellectual property is to ensure that state resources are used appropriately to serve the educational missions of the Regents institutions and to support the development of knowledge and the implementation on resulting discoveries. Each institution shall adopt procedures appropriate to implement the Board's policy. Intellectual property encompasses all works defined and subject to protection by the laws covering patents, copyrights, trademarks, and trade secrets, as well as other research/scholarly properties that may not be clearly included in the definition of intellectual property. For the purposes of this policy, intellectual property is meant to include, but not be limited to: inventions (whether patentable or unpatentable); original works of authorship fixed in any tangible medium of expression (including literary, computational, and artistic), derivative works, and compilations and collective works; words, symbols, designs, or combinations of words and designs that identify and distinguish goods or services; mask works; and other legally protectable or unprotectable research/scholarly property.

a. Ownership and Control
(1) In conducting scholarly activites related to the institutional missions of teaching, research and professional service and in utilizing various institutional resources, university faculty, students, staff, and others participating in university programs, may create intellectual property. Ownership of all such intellectual property shall reside with the institution if said property is created: (1) within the scope of an employee's occupational or professional duties or is related to the academic or educational work of the creator, (2) as part of a student's educational activities where students are university employees or where they are assisting in a project primarily managed by a member of the university faculty or staff, (3) through greater than incidental use of university resources, equipment, or facilities, or (4) upon commission by the university.

(2) Ownership of intellectual property created as described in the preceding paragraph shall be retained and managed by the institution on behalf of the Board or the rights to the intellectual property may be assigned by the institution to an affiliated corporation (hereinafter referred to as "Corporation") if said Corporation has as one of its missions technology transfer and/or the commercialization of an institution's intellectual property. The institution may contract with the Corporation to develop or manage the intellectual property for the benefit of the institution and the Board. The institution may also establish procedures for transferring ownership of selected categories of intellectual property (including but not limited to copyrights on faculty textbooks/articles or other intellectual property that the institution determines has no potential commercial value) back to the creator, so long as these procedures are consistent with Federal and State statutes and regulations and other Board policies and the institution retains a royalty-free irrevocable license for the use of the intellectual property, including the right to publish data related to the intellectual property.

b. Reporting
Anyone who creates intellectual property shall report the creation to an administrator designated by the institution in accordance with procedures established by the institution. The institution administrator receiving a report of the creation of intellectual property shall recommend to the Chief Executive Officer or designee whether or not to assign it to the Corporation, transfer ownership to the creator, or retain management responsibility at the institution. The decision of the Chief Executive Officer or designee is final. In the event that ownership is transferred to the creator, the institution shall retain a royalty-free irrevocable license for use of the intellectual property, including the right to publish data related to the intellectual property.

c. Administration of the Institution's Intellectual Property:
Institutions shall establish procedures with respect to protecting and commercializing institutional intellectual property that includes the following requirements:

(1) The institution may assign management of intellectual property to an affiliated Corporation created for that purpose.

(2) After assignment, if the Corporation decides that the intellectual property does not warrant legal protection or commercialization, management of said property may be assigned back to the institution which may then retain the intellectual property or transfer ownership to the creator or to the project's sponsor, depending on the nature of any relevant sponsored project agreements. If ownership is to be transferred, the institution shall retain a royalty-free irrevocable license for use of the intellectual property including the right to publish data related to the intellectual property.

d. Royalty
(1) When any royalty is obtained by or on behalf of the institution from the development or licensing of intellectual property, not less than twenty-five percent (25%) of the royalty after the expenses incurred by the institution or Corporation to protect and/or commercialize the intellectual property have been deducted, shall be paid to the creator(s). In the event of multiple creators, the net royalty shall be paid upon reciept of an agreement signed by the creators designating how the payment shall be distributed.

(2) A portion of the institutional share of any royalty mentioned in paragraph (1) above shall be set-aside in a fund for the purpose of paying institutional expenses associated with the commercialization of intellectual property that has not yet generated sufficient royalties to pay its own expenses or when the attempt at commercialization has been abandoned. The remainder of an institution's share of any royalty shall be used to sponsor further research, education, service, and other institutional purposes at the institution. The institution may agree that the Corporation may retain a portion of the funds to be used for research purposes.

(3) In the case of a cooperative project sponsored in part by an outside entity or individual(s), a written contract shall be entered into between the institution and the cooperating agency. This contract should include a statement of policy substantially equivalent to the following:

"It is agreed by the parties to this contract that all results of experimental/scholarly work, including inventions and other intellectual property carried out by members of the institutions or under their direction, belong to the institution for the benefit of the public and shall be used and controlled so as to produce the greatest benefit to the public. It is understood and agreed that if intellectual property of commerical value results from this endeavor, the cooperating agency shall receive preferential consideration as a prospective licensee, with a view toward compensating said cooperating agency in part for the assistance rendered in the project."

"It is further agreed that the name of the institution shall not be used by the cooperating agency in any advertisement, whether with regard to the cooperative agreement or any other related matter."

(4) In the case of a sponsored project where it is proposed that all costs including overhead, salary of investigator(s), reasonable rent on the use of equipment, facilities and other related costs are to be paid by an outside party, the outside party and the institution shall negotiate the appropriate licensing arrangement or assignment of all intellectual property rights prior to the provision of any funding by the outside party or the beginning of any work on the project. The institution may only accept such projects when they possess research value. The institution shall retain a royalty-free irrevocable license for use of intellectual property which includes the right to publish all relevant data.

(5) Changes in the above policies may be made by the institution to conform to the requirements of the United States Government when contracting with the United States Government or a Federal Government Agency.

e. Persons Subject to this Policy:
All employees of an institution, whether full or part time, are subject to this policy including student employees and individuals receiving permission to use institutional resources, even if not compensated, for the creation of intellectual property. Also included are individuals who are assisting in a project primarily managed by a member of the institution's faculty or staff. Tenured faculty members and any other full-time faculty or unclassified staff appointed on less than a full year basis, are subject to this policy if said persons reasonably have an expectation of continuing employment. All persons subject to this policy who are not full-time employees shall have the following statement included in a written instrument signed by both parties: "All intellectual property created by you during your work at the University is considered 'work-for-hire' and will be owned by the University and subject to its Intellectual Property Policy."

f. Institutional Procedures:
Shall expressly include the procedures for determining institutional interests on (1)Patent, (2)Copyright, (3) Electronically Recorded Works, and (4)Software.

g. Dispute Resolution
All disputes arising under this policy will be finally resolved within the institution in a manner consistent with institutional procedures.

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If you have any questions, comments or suggestions, E-Mail me at: ms-wes02@vm.mssc.edu