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Intellectual Property 39 Intellectual Property Discoveries made through scientific research can have great value— to researchers in advancing knowledge, to governments in setting public policy, and to industry in developing new products. Research- ers should be aware of this potential value and of the interest of their laboratories and institutions in it, know how to protect their own interests, and be familiar with the rules governing the fair and proper use of ideas. In some cases, benefiting from a new idea may require establish- ing intellectual property rights through patents and copyrights, or by treating the idea as a trade secret. Intellectual property is a legal right to control the application of an idea in a specific context (through a patent) or to control the expression of an idea (through a copyright). Patent and copyright protections are legal mechanisms that seek to strike a balance between private gains and public benefits. They give researchers, nonprofit organizations, and companies the right to profit from a new idea. In return, the property owner must make the new idea public, which enables others to build on the idea. A patent owner can protect his or her intellectual property rights by excluding others from making, using, or selling an invention so long as the patent owner provides a full description of how the in- vention is made, is used, and functions. Researchers doing patentable work may have special obligations to the sponsors of that work, such as having laboratory notebooks witnessed and disclosing an inven- tion promptly to the patent official of the organization sponsoring the research. U.S. patent law provides clear criteria that define who is an inventor, and it is very important that all who have contributed substantially to an invention (and no one else) be included in a patent application. Copyright issues are becoming more prominent as digital tech- nologies have made copying and distributing information easier. Copyrights protect the expression or presentation of ideas, but they
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40 On Being a S c i e n t i s t do not protect the ideas themselves. Thus, when a researcher writes an article or a book, a copyright (which may be transferred to the publisher) applies to the words and images in the publication, but others can use the ideas in that publication with proper attribution. Someone can make fair use of copyrighted material for nonprofit uses, such as research or education, but they cannot use the material in a way that would reduce its market value. Industry often relies on trade secrets to maintain control over commercially valuable information generated through research. In this case, there is no requirement to make the idea public, though there is also no protection against the idea being developed inde- pendently at another research site. Legal action can be taken against someone who reveals a secret or against someone who obtains a secret illegally. Most research institutions have policies that specify how intel- lectual property should be handled. These policies may specify how research data are collected and stored, how and when results can be published, how intellectual property rights can be transferred, how patentable inventions should be disclosed, and how royalties from patents are allocated. Also, patent law differs from country to country, and researchers need to take these differences into account when they are working on projects in other countries or in collaboration with researchers in other countries. In some cases, the obligations of researchers who are doing potentially patentable work may delay the publication of scientific results. Thesis advisers and research supervisors need to make begin- ning researchers aware of this possibility, given the importance of publication in advancing their careers. Publication of researchers’ work should not be delayed for unreasonable amounts of time to protect potentially patentable results. Decisions on whether to file a patent application should be made as quickly as possible. University technology transfer offices are a useful resource on these issues. Institutional policies may or may not address some of the more
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Intellectual Property 41 challenging issues that arise when considering intellectual property. For example, to what extent should a researcher or an institution benefit from intellectual property? How should the rewards from intellectual property rights be shared among established researchers, beginning researchers, and research technicians? Can researchers take original data with them when they leave an institution? Generally, institutions own the data generated by a researcher, but contracts between researchers and their institutions typically specify the details of the arrangement, and researchers generally are entitled to a copy of the data they have generated. Furthermore, new laws, regulations, and policies continue to influence intellectual property rights, with important implications for researchers.
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42 On Being a S c i e n t i s t A Commercial Opportunity? Shen was always interested in bioinformatics and decided to use some of his free time to write a program that others in his microbial ge- netics laboratory would find useful. Starting with a popular spreadsheet program on his university-provided computer, he wrote the program over the summer and posted it on his personal Web page as a bundle that combined the spreadsheet program and his own program. Over the next academic year, he improved his program several times based partly on the feedback he got from the people in his laboratory who were using it. At national meetings, he discovered that researchers in other labora- tories had begun to download and use his program package, and friends told him that they knew of researchers who were using it in industry. When the issue arose in a faculty meeting, Shen’s faculty adviser told him that he should talk with the university’s technology transfer office about com- mercializing it. “After all,” his adviser said, “if you don’t, a company will probably copy it and sell it and benefit from your hard work.” The director of the technology transfer office was much more con- cerned about another issue: the fact that Shen had been redistributing the spreadsheet in violation of its license. “You do have rights to what you cre- ated, but the company that sells this spreadsheet also has rights,” he said. “We need to talk about this before we talk about commercialization.” 1. What obligations does Shen have to the developer of the original spreadsheet program? To the university that provided the spreadsheet and computer? 2. What are the pros and cons of trying to commercialize a program that is based on another’s product? 3. What conflicts and practical difficulties might Shen encounter if he tries to operate a business while working on his dissertation?