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The Higher Education Authority (HEA) and Knowledge Transfer Ireland (KTI) are to commission a review of Intellectual Property (IP) policies and their implementation and the policies and procedures in the HEIs for the management of Conflicts of Interest in respect of the commercialisation of intellectual property.

The first National IP Protocol was published in 2012 and a revised version was subsequently published in 2016. It is now an opportune time to commence a review of the policies and procedures that are in place.

The Department of Education and Skills, the Department of Jobs, Enterprise and Innovation, the HEA and KTI have now finalised the terms of reference for the review. The HEA and KTI will oversee the review and will commission an independent international expert in the commercialisation of IP to lead on the project.

It is envisaged that the project will commence on 1 July and with a final report delivered by the end of November.

Welcoming the review Minister Bruton said that “Higher education institutions play a key role in the commercialisation of research and I welcome this joint project by the HEA and KTI to review the policies and procedures in the institutions. I am a strong believer in international benchmarking so that we can improve our own performance. This review, to be carried out by an international expert, provides the opportunity to identify any areas for improvement in the institutions and ensure that their policies and systems to commercialise intellectual property are in line with international best practice.”

Minister Halligan added that “Innovation 2020 places a strong focus on increasing enterprise engagement with research and development and increasing success in translating intellectual property or new thinking into commercial products and services. Policy has developed significantly in this area in recent years and I welcome the review to ensure the implementation of the recently refreshed National IP Protocol which will promote good practice and success in this area.”

The terms of reference for an external review into issues related to the commercialisation of research at Waterford Institute of Technology is expected to be finalised shortly.

Notes to Editor:
Terms of Reference for Rolling Review of Intellectual Property (IP) Policies and their implementation within Higher Education Institutes (HEIs) and the management of conflicts of interest in respect of IP commercialisation by the Higher Education Authority and Knowledge Transfer Ireland

Background
The Higher Education Authority (HEA) and Knowledge Transfer Ireland (KTI) wish to commission a review of (i) HEI IP policies and their implementation as described in the national IP Protocol and (ii) the policies and procedures in the HEIs for the management of Conflicts of Interest in respect of the commercialisation of intellectual property. This document sets out the approach that will be adopted to the review.

Higher Education Authority
The Higher Education Authority (HEA) oversees governance and accountability in the higher education sector. The governance framework for the higher education system is available here www.hea.ie/en/funding/governance As part of its role to promote, monitor and ensure good practice with regard to governance and accountability for the higher education sector, the HEA is required to review and improve processes for monitoring higher education institutions’ (HEIs) compliance with codes of governance and take appropriate action where required. In order to discharge this role more effectively, the HEA has instigated a number of changes to governance oversight processes since 2015 including reviewing the annual governance reporting formats submitted by HEIs with a view to achieving more consistency and depth in returns and putting in place a process of ongoing engagement with the C&AG to serve as an early warning system of potential issues.

Under the relevant codes of governance in place in the higher education sector, HEIs are also expected to have in place codes of conduct for Governing Body members and employees. Such codes should embrace procedures for addressing conflicts of interest. HEIs are also subject to the relevant reporting requirements under the Ethics in Public Office Acts 1995 and 2001.

As part of the process to review and strengthen HEA processes in relation to oversight and follow-up on governance and internal control statements, the HEA has introduced a programme of rolling reviews. The rolling reviews cover specific elements of governance processes by combining desk research of the approach across the higher education sector with more detailed review of practice across a sample of institutions, with four key objectives:

· to provide assurance that governance processes are operating effectively;
· to inform understanding of how particular aspects of governance are implemented within HEIs;
· to assess whether there are any deficiencies to be addressed;
· to assist in the development of best practice approaches across the sector.
The HEA’s objective for its rolling reviews is to consider the operation of corporate governance in the individual institution concerned, to assess whether there are any deficiencies to be addressed and more generally to identify any wider learnings that might be applicable across the sector and disseminate such learnings accordingly.

Knowledge Transfer Ireland
Knowledge Transfer Ireland is the national office, established in September 2013 as the result of the recommendation from a Government-led task force that reviewed the state of business-research base engagement in 2012 and is embedded in the Government Report ‘Putting Public Research to work for Ireland’.
KTI’s role is to make it simple for enterprise to engage with the State funded research base in Ireland through increasing visibility of opportunity and routes to engage with the research base and providing guidance for industry and RPOs on approaches to transactions. Clarity in respect of commercialisation policy and practice assists both public bodies and companies to do business more efficiently and successfully.

The national IP Protocol provides an overall framework to support intellectual property transactions between public research performing organisations (RPOs) and enterprise. It was first published in 2012 and after extensive review and consultation by KTI, as part of its remit, during 2014 and2015recommendations for change were delivered to the Minister for Jobs, Enterprise and Innovation and Minister of State for Skills, Research and Innovation and an updated version of the Protocol was published by the Department for Jobs, Enterprise and Innovation in 2016. . A wide range of practical resources to support the Protocol, including Model Agreements and Practical Guides, have been developed by KTI. The Protocol is available here: http://www.knowledgetransferireland.com/ManagingIP/KTI-Protocol-2016.pdf

The Protocol provides certain policy guidelines which are required to be translated into action by RPOs. While the Protocol does not have binding legal force, it has been developed as national policy and is accepted by the public bodies which perform research and generate intellectual property. Each of those bodies has its own statutory frameworks through which the terms of the Protocol are effected. Key amongst these are the respective Universities and Institutes of Technology Acts.

The State requires that each Irish RPO shall have in place and operate an IP management system that meets the National IP Management Requirements. KTI is responsible to ensure independent audit of the IP management system to be operated by each RPO to ensure that such a system is in place. An RPO which does not have an IP management system that meets the National IP Management Requirements, or which is not able to demonstrate full compliance with its IP management system, should agree with KTI a plan for the progressive development of its IP management system in order to achieve compliance. National IP Management Requirement No. 8 relates to conflicts of interest in respect of IP and includes that RPOs have published policies and procedures in place which minimise and manage potential or actual conflicts concerning the commercialisation of IP. Included within Requirement No. 9 is that RPOs shall have IP and commercialisation policies and procedures in place which include provision for the sharing of royalties and other RPO income from the commercialisation of their IP.

Terms of Reference for the Review
KTI and the HEA intend to commission an international expert in the commercialisation of IP from the HEI sector to undertake an independent review with the following terms of reference:

· IP Policies: Review current IP policies across all the HEIs including:
o Documenting the range and scope of these IP policies
o Identifying any gaps in the suite of policies and/or within specific policies
o Documenting revenue share as described within these policies to ensure that this is consistent with the national IP Protocol’s Management Requirement No. 9 requiring RPOs to implement systems for the sharing of income from the commercialisation of IP within the RPO, including with the HEI contributors to the IP
· IP Management Systems: Review internal IP management systems within all HEIs including:
o Documenting the IP management systems currently in place including:
· Gathering process maps of all key internal decision-making processes regarding IP commercialisation activity such as IP protection, licensing and spin-out company formation;
· Understanding the structure and membership of all key committees and other decision-making structures related to IP commercialisation decision-making and their relationship with the overall management and governing structures (including the Governing Authority) of the institution.
o Assessing the extent to which these meet the National IP Management Requirements
o Identifying any gaps in best practice
· Conflict of Interest: Examine relevant codes and policies relating specifically to conflicts of interest in respect of IP and commercialisation in place in HEIs and whether such procedures meet the relevant HEI Code of Governance in relation to the management of actual or perceived conflicts of interest, including:
o Documenting the codes and policies and whether these are stand-alone or embedded within other policies
o Documenting whether such codes and policies are published and their location
o Identifying any gaps
o Gathering process maps for reporting of conflicts of interest including the understanding the process of review of reported conflicts of interest and which function(s)/role-holder(s) is/are involved in that review, taking into account all grades of HEI staff including senior management
· In-depth Analysis of Implementation: Consider the IP practices in a sample of 5 higher education institutions (agreed in advance with KTI and the HEA) to assess compliance with the national IP Management requirements including:
o Review of the availability of published policies and procedures that cover timely identification of IP arising from research, protection of this IP including the maintenance of laboratory records and the prevention of premature public disclosure of IP.
o Review of awareness of IP policy and conflict of interest requirements at senior management and researcher level including:
· Availability of IP and COI policy and practice documents and guidance
· New staff induction processes related to IP and COI
· Relevant information-sharing, training or development activities to ensure staff have capability and knowledge to apply good IP practice;
o Review the practices in place to:
· Encourage researchers promptly notify the HEI Technology Transfer Office (or equivalent) whenever IP with commercialisation potential is identified
· Evaluate IP that may have potential commercial value to establish, as far as possible, what the commercial value might be and how that value might be realised.
· Decide what form of protection is appropriate for each new item of IP and to undertake that protection
· Identify, for each item of IP for which protection is sought and/or which will be commercialised, the originating individual(s), within the HEI or elsewhere, any Background IP used in its development and the sources of research funding, and associated obligations, from which the IP is derived.
· Identify, for each item of IP for which patent protection is sought, the individual(s), within the RPO or elsewhere, to be named as Inventor(s) or, where design or other registered rights are sought, the originator of the subject matter of the right.
· Ensure that all staff, contractors and consultants, assign to the HEI all rights to IP arising from their research for or on behalf of the HEI and that arrangements are in place for the assignment of rights to the HEI for research arising from research Projects with industry undertaken by students

· Conclusions and Recommendations: Draw conclusions on the availability, extent of coverage and implementation of IP policies including the adherence to the national IP Management requirements across the HEI sector. Identify any gaps and make recommendations on any changes that should be implemented. This should include recommendations on best practice with regard to management of conflict of interest as it relates to IP and commercialisation of research. It should also consider the ongoing monitoring arrangements that should be put in place.


Governance of the Review

It is anticipated that a small Steering Group will be set up to oversee the review, receiving regular reports from the appointed consultants and reviewing the draft and final outputs. The Steering Group will comprise representatives from KTI and the HEA. Meetings will be scheduled with the Steering Group at the outset of the review and on a monthly basis until completion.

Timescale

External consultancy will be engaged through appropriate public procurement processes by KTI in consultation with the HEA. It is therefore envisaged that the project will commence on 1 July and with a final report delivered by the end of November.