Guidelines, Policies and Forms
Harvard University's Intellectual Property Policy: A Concise Guide
I. Harvard's Intellectual Property (IP) Policy
In February 2008, Harvard University adopted and instituted a new policy governing Intellectual Property (IP). This concise Guide provides basic information that will assist members of the Harvard community to quickly understand the core elements of Harvard's new IP Policy. As a Guide, this document is intended for informational purposes only, and it therefore does not replace or supersede the formal terms of the IP Policy. Nor is it meant to be comprehensive. For those wishing to review the IP Policy, please click here. Questions regarding the IP Policy and how it is implemented should be directed to the Office of Technology Development (OTD) at 617-495-3067.
II. Disclosing Intellectual Property to OTD
Intellectual property must be reported to OTD when it is developed. The Policy explains reporting requirements that are specifically applicable to Inventions, both Supported and Incidental, to Computer Software and to Unpatented Materials. Appropriate forms should be obtained directly from OTD or may be downloaded from the OTD website. OTD will work with Inventors of Supported Inventions on the filing of patent applications and will keep Inventors informed during the patenting process. As legally required in the United States, Inventorship will be determined in accordance with U.S. Patent Law.
III. Who Falls Under the IP Policy?
This University-wide Policy applies to all investigators who use Harvard facilities or resources or who participate in University research and develop intellectual property. Specifically included are all full- and part-time faculty and staff; students who participate in research and use Harvard facilities; research fellows; and visitors to Harvard's faculties and schools, whether academic collaborators from other universities or collaborators from industry.
All such individuals are required to sign either the University Participation Agreement or the Visitor Participation Agreement, whichever is relevant, before beginning work. These Agreements restate the benefits and obligations arising as a consequence of developing intellectual property at Harvard. Copies may be obtained from the school or department of affiliation. Once signed, the original Agreement will be retained in the school or department of affiliation. Those individuals who have signed previous versions of such Agreements do not need to sign new agreements.
The Policy provides a process whereby Harvard's rights in Supported Inventions may be "released" to the inventor(s). Releases are discretionary and subject to terms to be arranged with OTD. For a list of conditions that may be applied to a release of rights in Supported Inventions, see Section I.G of the Policy.
IV. Intellectual Property Covered by the Policy
The IP Policy sets forth the University's rules governing a broad set of categories of intellectual property that are most likely to be subject to Harvard's agreements with third parties (i.e., industry) and/or to have commercial potential. These categories are: Inventions, whether they are patentable or not; Copyrights that derive mainly from research or are created with more than incidental use of Harvard's resources; Computer Software; and Unpatented Materials (biological, chemical and the like).
Inventions
For purposes of the Policy, Inventions are defined as ideas, discoveries and/or know-how that are patentable or potentially patentable and include any associated or supporting technology. Inventions fall into two subcategories: Supported Inventions and Incidental Inventions.
§ Supported Inventions are Inventions in which Harvard has rights of ownership. They generally result from research and other programs at Harvard with funding support by third parties (e.g., government, foundations and private industry) or where internal Harvard funds or facilities have been used.
§ Incidental Inventions are Inventions made with incidental use of Harvard facilities and resources and that do not otherwise fall within the Supported Inventions category. Incidental Inventions are owned by their inventors, subject to a royalty-free, non-exclusive license granted to Harvard for educational and research use.
Copyrights
Recognizing long-held customs that have evolved concerning academic Copyrights, the Policy generally recognizes a right of Authors to retain copyright in their content-based scholarly works. The Policy makes an exception where Harvard enters into agreements with third parties that require Copyrights to be handled differently. Where Authors make more than incidental use of Harvard resources in developing their Copyrights, such as use of Harvard's funds or facilities, the Policy suggests an equitable allocation of benefits and encourages agreements to be made between Harvard and Authors in advance. The University is the copyright owner of copyrightable works created as works made for hire by non-teaching staff. Under the Policy, Harvard also has ownership rights in copyrightable works that it commissions, whether from faculty, students or third parties.
Computer Software
Computer Software represents a special case because, while copyrightable, it may under some circumstances also be patentable. To make clear a distinction between Computer Software that may be both patentable and copyrightable and Computer Software that is copyrightable only, the Policy covers Computer Software in a separate section from Copyrights. The section on Computer Software also applies to user manuals and computer databases. The following guidance will help software developers understand how their Computer Software is treated under the Policy.
§ Sponsored Computer Software. Computer Software is considered Sponsored Computer Software if developed under Harvard's agreements with third parties or using funds or resources supplied by Harvard that are more than incidental. Harvard has the right to own the patents, copyrights and other intellectual property associated with it. However, to avoid imposing an obligation on software developers to report all Sponsored Computer Software as Inventions, the Policy distinguishes between Sponsored Software Inventions and Sponsored Computer Software that is subject to copyright only. The Policy provides procedures for release of Harvard's ownership rights in Sponsored Computer Software and Sponsored Software Inventions under certain conditions. For further details, please see Section III. D of the Policy.
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- *** Sponsored Software Inventions. In those cases where Sponsored Computer Software is patentable or potentially patentable, it will be treated as a Sponsored Software Invention under the Policy only if:
(i) it was developed under an agreement between Harvard and a third party; or
(ii) the software developers believe the Sponsored Computer Software has commercial value as a patented Invention or for other reasons wish to seek patent protection for it.
If neither (i) nor (ii) applies, Sponsored Computer Software will not be treated as an Invention and is not required to be disclosed as an Invention. However, the Policy applicable to Sponsored Computer Software Copyrights will apply and will control the ownership and disposition of this intellectual property.
*** Sponsored Computer Software Copyrights. The Copyrights on Sponsored Computer Software are owned by Harvard. The University has the right to dispose of the Sponsored Computer Software Copyrights as it deems appropriate and will work with software Authors to ensure use in the public interest.
§ Computer Software (unsponsored). Computer Software that is not sponsored, as defined above, is generally treated like any other copyright under the Policy. However, diverging from the general Policy applicable to copyrights, where Sponsored Computer Software is an Invention owned by Harvard and is patented, any associated copyrights, whether sponsored or not, will be also be owned by Harvard in order to provide unity in intellectual property ownership rights.
§ Open Source. In certain cases, there is a desire by faculty to make Sponsored Computer Software Copyrights or unsponsored Computer Software available via an open source license. Generally, the Policy will allow this, and a separate set of open source guidelines is being created in order to provide guidance in this area. In the meantime, please contact the Office of Technology Development for questions regarding release of software via open source.
Unpatented Materials
Unpatented Materials (predominately biological materials, but including other materials useful in research), will generally be owned by Harvard under circumstances similar to those that apply to Inventions. Individuals making a contribution to Unpatented Materials ("Contributors") will be identified by principal investigators or heads of laboratories and will be entitled to shares of royalties.
V. Royalty Sharing
A key provision in the new IP Policy mandates an increase in the royalty share that accrues to Inventors, Authors and Contributors. OTD is responsible for distributing Net Royalties received by Harvard from the licensing or other distribution of its intellectual property or technology covered by the IP policy. Net Royalties are calculated based on gross receipts consisting of cash and securities (or other equity shares in an enterprise) received by Harvard in return for use of its intellectual property, but do not include other non-cash benefits, sponsored research funding or revenues such as gifts. Net Royalties equal those gross receipts that Harvard is entitled to retain, less Harvard's out-of-pocket costs and fees associated with intellectual property protection, minus any out-of-pocket costs incurred in the course of licensing the intellectual property.
The new Policy provides that, effective January 1, 2008, all royalties and fees received by Harvard from its commercialization activities are to be shared as follows:
Inventor/Author personal share - 35%
Inventor/Author research share - 15%
Inventor/Author's Department/Center-directed share - 15%
Inventor/Author School share - 20%
President's share - 15%
For other particulars concerning royalty sharing, including distribution methods in cases of multiple inventors or multiple patents licensed as a package, please see Section V of the Policy.
VI. The University Committee on Intellectual Property
The University Committee on Intellectual Property, a standing committee appointed by the President, has overall responsibility for interpreting the IP Policy, and resolving questions and disputes concerning it. Other responsibilities of the Committee include the hearing of appeals as provided under the policy and such other duties as may be assigned from time to time by the President and Fellows of Harvard College.
VII. The Role of the Office of Technology Development
Protection of Intellectual Property
OTD is responsible for managing the intellectual property assets of Harvard University in the public interest, and for the benefit of the faculty and the University at large. Although we take into consideration the interests of all the stakeholders (inventors, departments and schools), ultimately OTD's licensing decisions are made on behalf of the University. As the primary steward of intellectual property developed at Harvard, OTD is responsible for all activities pertaining to the evaluation, patenting and licensing of new inventions and discoveries made by the faculty. OTD is the primary resource and service provider for faculty developers of intellectual property at Harvard with respect to the protection of research results that may have potential commercial value.
Commercialization Activities
OTD is charged with making decisions that, in the exercise of its professional judgment, best serve the public, result in the effective development and transfer of the technology, and are consistent with University policy and procedures. OTD spearheads the commercial development of innovations made by Harvard faculty by proactively marketing new technology development opportunities to industry, designing attractive value propositions, and fostering strategic collaborations with industry through licensing, research alliances and the formation of new ventures, all of which require agreements that OTD structures, negotiates and concludes.
Where OTD is commercializing an invention covered by the IP policy in which the inventor has, or may have, a personal financial interest, such as a start up company or a new venture, the inventor(s) activities are governed by, and the inventor(s) are obligated to abide by Harvard University's Policy Regarding Conflict of Interest in Licensing. For those wishing to review this policy, please see: