Taking ownership of IP

The Francis Crick Institute: The search for gold and intellectual property

By Paul Harris, Partner, Pillsbury Law

 “It’s true that by blundering about we stumbled on gold, but the fact remains that we were looking for gold” Francis Crick.

This quote, from the man after whom the new Institute has been named, somehow epitomises the English innovators of yesteryear, whose unassuming intelligence and demeanour, with a touch of eccentricity, conjures the image of the surprised man or woman achieving Nobel prize status, a bemused look upon their face as the reward is handed to them.

But just what is the ‘gold’ for this new Institute that combines the power of the MRC, Cancer Research, the Wellcome Trust, and the academics at Imperial, UCL and KCL? The strategy document indicates the Institute’s vision as being one of diagnosing and preventing human disease, whilst creating economic opportunities for the UK. This latter aspect is no doubt designed to ‘tick the box’ of the Government’s ‘Strategy for Life Sciences’. The assumption being that somehow, intellectual property rights will aid those economic opportunities. However, the Government’s strategy paper gives only two references to intellectual property, the first being the transfer of ideas and IP from academia to industry, which is ‘…imperative for innovation to be accessed by the public’. The second is a statement that there needs to be a review of the NHS IP strategy and to develop a model of contracts that is ‘fit for purposes’. No prizes for guessing that it was probably written by a civil servant, not an IP lawyer.

However, the Institute’s own strategy paper fairs little better as it states: “The Crick’s intellectual property strategy will aim to maximise the uptake and exploitation of knowledge and inventions developed at the Crick. We will operate in a spirit of openness and sharing, managing intellectual property in a way that facilitates interactions and reduces barriers to access, so that laboratory discoveries are turned into inventions and applications that deliver public benefit as quickly as possible.” 

I doubt the author knows just how long a pharmaceutical preparation takes to get through all phases of clinical trials before acceptance and market authorisation is granted. “As quickly as possible” is therefore a relative term.

‘Perhaps the Crick Institute may well prove to be that Government model that breaks the mould and is able to sit around the negotiating table to carve out for itself a better deal than universities on their own otherwise can’

Nevertheless, with the muscle of the technology transfer offices of the three universities, one might consider that academia has produced for itself the 800lb gorilla necessary to face up to industry so that all of the economic benefits do not flow only to those who paid for the work to be done, as most universities will have discovered over the years. Never mind that the Lambert Working Group over a decade ago provided universities with a suite of template agreements to be used for a variety of occasions. All well and good, but in the end, he who pays the piper calls the tune.

Back in the early 90’s, I wrote an article appearing in the Royal Society of Chemistry Journal, pointing out the difficulties of identifying who it was that has invented the patentable concept, and who owned the intellectual property rights in any event. This arose because undergraduates, PhD students as well as academics had no or little guidance as to how any invention was to be treated (in other words was it owned by the individual or by the university). Universities have become more sophisticated, and to a large degree this particular aspect of ownership has been resolved. Even so, when it comes to multi-entity collaborations, the difficulties remain.

Perhaps the Crick Institute may well prove to be that Government model that breaks the mould and is able to sit around the negotiating table to carve out for itself a better deal than universities on their own otherwise can. A blueprint for a common market of universities to come together with shared aims and goals giving them a greater say at the table. Yet at the end of the day, industry is the one that has to take the risks on clinical trials and exploitation and sales and the other economic ill winds that blow. It remains, therefore, to be seen whether the Institute is a game changer.

Paul Harris is an Intellectual Property Litigation Partner at Pillsbury (paul.harris@pillsburylaw.com)

MAIN IMAGE: The Francis Crick Institute. View of the Crick from St Pancras 2/23 © HOK and Glowfrog

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