STATEMENT OF POLICY IN REGARD TO INVENTIONS, PATENTS, AND COPYRIGHTS*

Introduction

Concern for the public interest in potential new products and processes resulting from discoveries or inventions made by members of the University in connection with and related to their University activities, and the growing application and use of communications media, educational technology, and computer programs in the work of the University, raise new and complex problems relating to the proper and equitable distribution of rewards and obligations. The production of such materials may involve the inventors or authors, the University, and outside sponsors. The situation is further complicated by evolving Federal policy and legislation in the area of both copyrights and patents. All of these considerations made it desirable for the University to reconsider its past policies in this area, and to develop and reduce to writing a policy which will be understandable to members of the Harvard community, and which will provide the basis for equitable adjudication between the various interests involved.

In November 1975, the University adopted a patent and copyright policy to codify existing practices and to replace the 1934 policy regarding patents in the field of health and therapeutics. The present document incorporates three subsequent revisions to the 1975 policy: (1) amendments of 1986, which clarify the terms in regard to inventions or discoveries for which patents are not sought, such as many biological materials, and in regard to copyrightable works made for hire by non-teaching staff; and (2) two amendments of 1998, which specify further principles and procedures to cover University involvement in the creation of intellectual property, including information technology products, and the use of the Harvard names and insignias.

Since activities in the University are too diverse and are evolving too rapidly to permit a statement of a University-wide general policy which can be mechanically and unambiguously applied to every possible situation that might arise, it is felt necessary for detailed policy to evolve by the making of decisions on individual cases based on interpretation of the general policy and principles enunciated below.

Therefore, a Standing University Committee on Patents and Copyrights was created in 1975. This committee has representation from the principal faculties potentially affected by policies in this area and from the administration, and its chairman is a senior administrative officer of the University reporting directly to the President. It is charged with responsibility for interpreting and applying University policy in individual cases, and for recommending such changes in University policy as may from time to time be required.

The following principles govern the development and application of the University’s policy for inventions (including certain tangible results of research, such as biological materials, devices, and certain software), patents, and copyrights.

First, the policy should encourage the notion that ideas or creative works produced at the University should be used for the greatest possible public benefit. This would normally mean the widest possible dissemination and use of such ideas or materials. Thus, every reasonable incentive should be provided for the dissemination into use of ideas, and the production and introduction into use of creative works or educational materials generated within the Harvard community. While this policy places benefit to the public before financial gain, it recognizes that it is also appropriate and desirable for the University and individual inventors or authors to benefit financially from the sale of products based on their inventions or other creative works. In deciding how to proceed in regard to a particular invention or creative work, the University will consider the benefits and consequences for the public and the University, as well as the individual inventors or authors.

Second, the policy should protect the traditional rights of scholars with respect to the products of their intellectual endeavors. For example, the policy should not interfere with the right of a scholar to decide to publish a book or an article and, if so, when and under what circumstances. With respect to works in which the University takes ownership or has any form of control, the person(s) who created the intellectual property shall be consulted in the determination of how it is to be made public, developed, modified, and/or commercialized.

Third, when University support makes the enterprise possible or when it provides extra or special support, either with money, facilities, equipment, or staff, for the development of ideas or the production of works, it is reasonable for the University to participate in the fruits of the enterprise and/or to be reimbursed for the University’s extra or special costs, if such ideas or works are introduced commercially.

Fourth, the policy should ensure that the privacy rights of staff, students, and faculty are protected. For example, the voices and images of identifiable students and staff should be used in works to which this policy applies only with the consent of the individuals involved and with the approval of a responsible Dean or other independent University official.

Fifth, the policy should protect the interests of the University and its members in the use of the Harvard names and insignias, as described in Appendix B. The University has a responsibility to ensure that the use of its name to imply association with the institution is accurate and appropriate, and that it receives a fair share of any commercial fruits from the use of its names.

The following general policy is applicable to all members of the University, including students, in connection with their University work.

Inventions and Patents

1. A member of the University is expected to notify and to disclose to the University in a manner stipulated by the Committee on Patents and Copyrights (the "Committee") any discovery or invention the individual has made and has reason to believe might be useful, patentable, or otherwise protectable, including potentially useful biological materials, devices, and certain software, even if not patentable ("Inventions").
   
   Except in cases of Inventions primarily concerned with medical diagnostics/therapeutics or public health – such determinations to be made in each case by the Committee – an individual may elect to pursue the patenting and/or commercial introduction of potential Inventions without assistance from the University.1
   
   The University must be notified of such election and the individual’s plans must be briefly described in writing at the time of disclosure. The inventor then shall have the right to pursue the patenting or commercial introduction of the Invention, subject to the diligent prosecution of same. (The University may require a showing from time to time that the Invention is indeed being pursued. If the University is convinced that the inventor is not diligently pursuing the introduction of the Invention into public use, it may require submission of a further disclosure in a form prescribed by it for processing by the University.) An individual who obtains a patent or introduces an Invention into public use without assistance from the University, and without substantial University involvement as described in Section 7 below, shall be entitled to all royalties or other income resulting therefrom. It is expected that in pursuing the introduction of an Invention into public use, individuals will make arrangements that best serve the public interest, and the Committee will be available to advise individuals on this question.
2. If a member of the University elects not to pursue or fails to pursue a patent and/or the introduction of an Invention into public use, and in any case arising in regard to Inventions primarily concerned with medical diagnostics/therapeutics or the public health, the University has the sole right to determine whether title shall vest in the University. If title is to vest in the University, the University shall have the right, either directly or through an outside agent, to evaluate and seek patent or other protection of the Invention, and to undertake efforts to introduce the Invention into public use. The individual is then expected to cooperate in every necessary way (but at no expense to the individual) with the University and/or the outside agent, including assigning to the University any ownership rights the individual may have in order to permit the University or the outside agent to evaluate the Invention, to seek a patent, and/or otherwise to introduce the Invention into public use. Royalties or other income resulting from the Invention will be shared among the inventor, the University and the outside agent (if any) in accordance with the University’s policy and any relevant terms of any agreement between the agent and the University. The University's arrangements with an outside agent and/or a licensee for handling Inventions should reflect the importance of serving the public interest in these matters.
3. Notwithstanding paragraphs 1 and 2, whenever research or a related activity is subject to an agreement between an external sponsor and the University that contains restrictions as to disposition of Inventions, any such Inventions shall be handled in accordance with such agreement. As at present, all participants in externally sponsored research will continue to be required to accept the conditions in the agreement between the University and the sponsor before being permitted to participate in the sponsored research. In negotiating with sponsors, project directors and other representatives of the University should strive to advance and protect the public interest as well as to obtain the greatest latitude and rights for the individual inventor and the University consistent with the public interest and this policy.

Copyright

4. Except as qualified below, a member of the University is entitled to ownership of copyright and royalties or other income derived from works, including books, films, cassettes, software, works of art, or other materials. It is expected that when entering into agreements for the publication and distribution of copyrighted materials individuals will make arrangements that best serve the public interest.
5. Notwithstanding paragraph 4, whenever research or a related activity is subject to an agreement between a sponsor and the University that contains restrictions concerning copyright or the use of copyrighted materials, all materials shall be handled in accordance with such agreement. In negotiating with sponsors, project directors and the University should strive to protect and advance the public interest as well as to obtain the greatest latitude and rights for the individual author and the University consistent with the public interest and this policy.
6. Notwithstanding paragraph 4, whenever a copyrightable work is created by a member of the non-teaching staff as part of the individual’s University responsibilities, the work shall be treated as a work-for-hire under the terms of the Copyright Act of 1976, and ownership will ordinarily be retained by the University.

General Provisions (applicable to Inventions, Patents, and Copyrights)

7. In circumstances in which there is substantial University involvement in the creation of an intellectual product, the foregoing provisions concerning rights to obtain a patent or copyright or the rights to royalties or other income, or both, may be varied in favor of the University by explicit agreement between the creator(s) and the University. These circumstances include:
   1. substantial University financial, staff, or other assistance2;
   2. extensive use of special or rare University holdings, such as museum collections;
   3. significant use of voice or image of students or staff in a product, or substantial creative contribution by staff or student3 to the preparation of the product; or
   4. use of the name or insignia of the University or any of its units (other than for purposes of identification of individual faculty members) to identify or to promote the distribution of a product, or other identification or promotion that implies the approval or endorsement by the University or one of its units.
8. When the responsible Dean (in the case of Schools) or administrative director (in the case of independent units4) determines that any of the circumstances described in Section 7 obtain, the individual creator(s) shall enter into an explicit agreement with the University.
   1. The Dean or administrative director normally concludes the agreement with the creator(s) on behalf of the University, in consultation with the Office for Technology and Trademark Licensing. The Director of the Office for Technology and Trademark Licensing shall report such agreements to the Committee on Patents and Copyrights.
   2. Any such agreement should protect the appropriate ownership rights of the creator(s) and establish the University’s share of any royalties or other income derived from the product. For Inventions or copyrightable works to which the University has taken title, royalties or other income shall be allocated in accordance with Appendix A. For all other works, allocation of the creator(s)’ share of royalties or other income shall be determined by agreement between the creator(s) and the Dean or administrative director, and allocation of the President and Fellows’ share shall be determined by agreement between the Provost and the Dean or administrative director. In all cases covered by the preceding sentence, the schedule in Appendix A shall normally govern unless the parties agree on a different allocation within a reasonable time. Any such agreement shall also assure the University’s right to use the product in its own non-profit educational activities on a royalty-free or reduced-royalty basis. In the case of copyrightable products that do not bear Harvard's name or insignia in the title, the creator(s) shall normally retain ownership.
9. Individual Faculties may adopt different procedures and policies regarding ownership, disposition, and royalties or other income of the products that are subject to the agreements described in paragraph 8, provided those procedures and policies are consistent with the principles stated in this document, and are approved by the Corporation upon the recommendation of the Committee on Patents and Copyrights.
10. In the case of sponsored works, the agreement with the sponsor shall provide either that the sponsor reimburse the University for reasonable expenses and/or that the University shall have the right to recover its reasonable expenses, including charges for special equipment used and the cost of obtaining patent protection out of royalty income, unless the University, in exceptional cases, specifically agrees in advance to waive a portion or all of such expenses for reasons of public policy, e.g., in the case of educational materials for disadvantaged children.
11. In the past, inventors and authors who have derived substantial income from their Inventions or works have seen fit to make a gift to the University, in some cases in recognition of the contribution made by the availability of University facilities. It is the hope that this practice will continue, and even become more widespread, but the matter should be left to the judgment and good will of individual inventors and authors, without any expectation on the University's part.
12. The University Committee on Patents and Copyrights, appointed by the President, shall have the responsibility for interpreting these policies, resolving disputes concerning the interpretation and application of these policies, and recommending changes to the President and Governing Boards from time to time as experience suggests the desirability of such changes. Inventors or creators may submit appeals to the Provost regarding the University’s handling of Inventions, Patents, or Copyrights assigned to the University under this policy.

Footnotes

* Adopted by the President and Fellows of Harvard College on November 3, 1975 and amended on March 17, 1986, February 9, 1998, and August 10, 1998

1. The individual may elect to propose to the Committee that the patenting and/or commercial introduction of the Invention be pursued by the University.

2. The references in Paragraph 7(a) to "substantial University financial, staff, or other assistance," and in Paragraph 7(b) to "special or rare University holdings, such as museum collections" mean the use of University funds, facilities, equipment, or other resources significantly in excess of the norm for educational and research purposes in the department or unit in which the creator holds his or her primary appointment. The University does not regard the provision of academic year salary, office, usual library resources, usual facilities and office staff, or personal computers as constituting "substantial University financial, staff, or other assistance" or "special University ... holdings" unless such resources were made available specifically to support the development of certain materials to be acquired by the University.

3. The reference in Paragraph 7(c) to "substantial creative contribution by staff or students" means providing original ideas or new techniques that are essential to the creation of the product or significantly improve its value. For example, devising a new way to test one of the major hypotheses in a study would normally count as such a contribution, but providing ordinary research assistance or conducting standard data analysis would not.

4. "Independent unit" means any department or organization that is part of the University (or one of its affiliates or subsidiaries) but not part of any School. Examples of such units include the Harvard University Health Services, the Harvard University Art Museums, and the Arnold Arboretum.