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Procedure for the allocation of Net Royalties if a Creator is lost or unresponsive

Approved October 24, 2018 by the Harvard University Committee on Intellectual Property.

In the discussion that follows, capitalized terms will have the meaning ascribed to them in the Harvard University Statement of Policy in Regard to Intellectual Property (the “IP Policy”). 

Section V of the IP Policy sets forth the rights of Creators with respect to Net Royalties in general and to the Creator personal share of Net Royalties in particular.  Effective implementation of the provisions of Section V depends in part on the ability of the University’s Office of Technology Development (“OTD”) to contact Creators, not only so that funds due to them personally will be properly directed and reported for tax purposes, but also so that they may participate in the allocation of Net Royalties among IP assets licensed as a package pursuant to Section V, paragraphs E(iii) and F, and among Creators of a particular IP asset pursuant to Section V, paragraphs E(i), E(ii), and F. 

This procedure, described as follows, is to facilitate the efficient distribution of Net Royalties, thereby fulfilling certain aims of the IP Policy:

  • It is the responsibility of each Creator (1) to ensure that OTD is provided with his/her current contact information (e-mail, telephone and/or physical address), and (2) to respond to communications from OTD, during:
    • the enforceable term of any patent application(s) or patent(s) that may cover such individual’s Supported Inventions; or
    • for non-patentable Creations, the period of time during which it is reasonable to assume that such individual’s Creation is licensed or, otherwise, continues to have commercial potential, such that it might become licensed.
  • If a Creator1 has not provided OTD with such information, and OTD after reasonable investigation has not been able to locate and contact the Creator, or OTD contacts the Creator but he or she is unresponsive to communications from OTD, then:
    • if such individual’s Creation has been licensed as part of a package, and the allocation of Net Royalties among licensed Creations has yet to be determined, the Creator will be deemed to have waived his or her right under Section V, paragraphs E(iii) and F to participate in or to appeal the decision as to how Net Royalties will be allocated among Creations included in such package; and
    • unless a different percentage was previously agreed among all Creators of such Creation (including the Creator who cannot be located), OTD will set aside for the Creator a 1/n share of Net Royalties allocated to his or her Creation, where “n” is the number of its Creators; and
    • after a period of time as specified under the law of Massachusetts or, if the Creator’s address last known to Harvard was in a different state, under the law of such state, OTD may instruct the University Controller’s Office to turn such share over to the Treasurer of the Commonwealth of Massachusetts or other state, as applicable, along with any supporting documentation required by law to accompany it, for management as unclaimed property.

Footnote

1Or, in the case of a deceased Creator, the administrator of his or her estate.

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