Research bureaucracy and research contracts

bureacracyIt is a fact of life that those of us who negotiate contracts are accused by others of being slow, bureaucratic, risk-averse, and worse. Sometimes, the accusation is justified; often it is not. How quickly and freely you can agree contract terms depends in part on whether you have a manageable workload, how risk-averse the organisation is, whether the terms being proposed are reasonable, the approach of the other parties in the negotiations, and what guidance and training you are given by your employer.

In the UK, we saw this complaint about universities negotiating IP terms with industry, over two decades ago. It led to the Lambert Review and subsequently the Lambert Agreements – a set of alternative, standard contracts with different IP terms in them. As originally envisaged, negotiating parties were to discuss a flow-chart of criteria (funding, building on previous research, etc). Once the criteria were agreed, the correct Lambert Agreement would pop out and be signed, without revision. Some hope!

Now, we have another flurry of activity, with the publication (back in the Summer) of Professor Tickell’s Independent Review of Research Bureaucracy.

The Review looked at the different stages of research projects, from application, through funding, contract negotiation and signature, to post-contract reporting. From IP Draughts’ perspective, a striking feature of the Review, and of Annex C, which summarised stakeholder responses, was just how unimportant contract processes and delays were in the grand scheme. Yes, they were a source of frustration, but stakeholders seemed more concerned about issues like funding requirements, due diligence, legal compliance and reporting obligations.

This was eye-opening for IP Draughts. It is too easy to sit in a silo and assume that complaints about contract negotiations are made in the context of an otherwise streamlined and efficient process. Far from it, suggests Tickell. The issues with research bureaucracy are much wider and reflect institutional risk-aversion.

Some extracts from the stakeholder submissions to the Review give colour to the perceived issues with contract negotiations.

Question 13: what specific changes do you think could bring the biggest reduction in unnecessary bureaucracy?

There is also a need for more rapid and efficient processes for agreeing contracts between universities. Standard collaboration agreements should be implemented for use by all research organisations and other partners.

Question 17: in addition to your responses to previous questions, would you like to add any further evidence and examples of unnecessary research bureaucracy which could be streamlined?

Institutional bureaucracy: A number of respondents followed a similar theme with the vast majority of the bureaucracy issues with institutions being driven by funder requirements, government requirements, and other similar obligations. Others noted risk aversion within universities as a driver of bureaucracy. In addition, some university processes (including HR and procurement) were highlighted as being overly burdensome.

Post-award stage: It was noted that implementing research contracts between the increasing number of parties involved in projects had become particularly complicated. Clearer definitions and consistency by funders on terms and conditions would reduce the bureaucratic burden. The process for applying for grant extensions or changes to projects should be streamlined.

Any reforms should be evidence based: The overall costs and benefits of activities across the whole system, and their interactions, should be the starting point for steps to reduce bureaucracy. An Equality Impact Assessment should form one test of both current practice and any changes.

Deadlines and timings: The deadlines for submissions should be lengthened and rolling funding calls with deadlines provided 18 months ahead. There needs to be greater flexibility with either more lead time built in to complete agreements, or more flexibility in the overall project timeframes.

There are some interesting themes in the above extracts, including:

  1. There should be more standardisation of contracts
  2. Risk aversion on the part of universities (which leads to more time being spent on contracts)
  3. Funder requirements add to the complexity of contracts (greater simplicity and standardisation by funders would be desirable)
  4. Allow sufficient time for contract negotiations.
  5. Reforms to the system should be “evidence based” (in other words, let’s plan for a better future rather than stumble into changes which may or may not work)

Turning to the Review itself, a search of the word “contract” reveals some interesting observations and conclusions about this subject, including:

Contracting and collaboration agreements are a major source of delays because many research organisations prefer to use their own version rather than standard formats such as Brunswick or Lambert Agreements.

To address these issues we recommend that:
• Universities and research organisations should wherever possible use standard templates for contracts and collaboration agreements, recognising that this would not just be faster, but would also facilitate third-party collaborations

Use of generalist professional services department to provide key elements of research support – for example, legal services – can lead to longer delays because of a lack of familiarity or confidence with handling research grant agreements or contracts.

To address these issues we recommend that:
• Wherever possible, research organisations should examine the feasibility of delegating research-related approvals to research managers and officers who are closer to research;
• Universities UK should bring universities together to find new platforms and methods for working together on research management issues such as increasing risk appetite, streamlining burdens including through greater standardisation;
• If they do not already have them, research organisations should establish “Trusted Funder” policies to enable projects to proceed at risk, within certain parameters

Other forms of collective resource include templates and model clauses for assurance documents such as contracts, collaboration agreements, and approval forms. These are currently used in specific contexts and to a limited extent; they should be updated where necessary and shared across the entire sector as a priority. For large collaborative or consortium-based projects in particular, these have the potential to reduce the bureaucratic burden significantly.

Some of these themes are expanded upon in pages 40-41 of the Review – too lengthy to repeat here, but worth reading if you work in the field of research contracts.

Finally, the Review makes some formal recommendations, including:

Recommendation 15: Universities and research organisations should, wherever possible, use standard templates for contracts and collaboration agreements, recognising that this would not just be faster, but would also facilitate third-party collaborations. This could build on existing work carried out by the Russell Group.

Amendments to these templates by individual institutions, or the use of non-standard templates for collaboration agreements and contracts, should be the exception rather than the norm. While uniformity will clearly not be possible, a fundamental shift is required in universities and other research providers concerning their willingness to accept standard contract clauses and use model agreements.

If these ideas are to be implemented, they require an investment of time and commitment by both funders and universities:

  1. To agree on a general approach (including as to risk acceptance)
  2. To prepare simplified and well-drafted template agreements that they can live with
  3. To coordinate revisions to those templates so as to future-proof them but avoid “nice to have” revisions that are not necessary
  4. To move away from individual negotiations at the level of contracts managers in most cases

A sometimes overlooked question is who is to do these things within funders and universities? Do they have sufficient numbers of suitably skilled staff? In IP Draughts’ mind, these tasks require action by people who understand the detail of contracts but are also sufficiently senior within their organisations to take strategic decisions.

To assist them in their discussions and decision-making, stakeholders may find it useful to involve outsiders who know their way around the sector and can provide an independent eye. IP Draughts would be very interested to help facilitate this process. He has relevant experience as an IP lawyer who has worked with people in the sector for many years, understands the issues, and is a qualified mediator.

8 Comments

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8 responses to “Research bureaucracy and research contracts

  1. Some universities are better set up than others to do commercial work, eg via a subsidiary company.
    As for students, they typically sign up to terms as part of enrolment. Or when assigning (revenue sharing agreement). Yes, consumer laws need to be considered, and possible duty of care particularly for undergrads.

    • t2kpatents

      Yes, undergraduates are consumers and protected by the Consumer Rights Act, and a blanket assignment of all IP created by a student has a good chance of being deemed unfair, in my view. Reliance by an industrial partner on a University’s claim to ownership of student IP should be taken with a pinch of salt. Assignments made under a revenue sharing agreements after the IP has been created could be open to student negotiation – if only they knew – good luck to them.

      My view on postgraduate studentships is a little more open as to whether the Consumer Rights Act applies – it may depend on who is funding the studentship. Many PhD’s are self-funded.

      On a brief search for information on the application of the CRA, I found the following govt document. It raises the same issues, but it’s guidance on postgraduates appears a little hopeful as the points raised appear irrelevant.

      Click to access Undergraduate_students_-_your_rights_under_consumer_law.pdf

  2. t2kpatents

    IP risks regarding ownership issues are critical for industry, not necessarily for universities. IP ownership based on inventive contribution is usually fair, as is ownership based on funding for a CRO arrangement.

    However, universities tend not to consider themselves a CRO on the occasions they are acting as such, and expect to take the money, own or share the IP, and have a right to publish and use results internally for teaching. I have not seen a university agreement with IP terms mirroring Lambert agreement 5 (CRO).

    Rights to publish with a short period for filing patent applications does not mirror real-life requirements. Universities may believe patent filings are like papers, rushed out when results are in, but suitable IP protection for an industrial project requires confidentiality to be maintained for significantly longer periods.

    Outside of collaborations, filing patent applications too early (and overvaluing such IP) is a common UK university mistake.

    There is simply a clash between the needs of industry and the aims of universities when it comes to collaborations. It works well where the university is providing access to cutting edge science/proprietary technology/know how and a commercial licence is available, or where publication has upsides that outweigh the downsides.

    The studentship agreements I see that are based on Lambert, usually incorporate the IP terms fully.

    • t2kpatents

      Edit: For perspective, I only see a small number of studentship agreements, both in absolute numbers and relative to those of IPDraughts!

    • Interesting. What you describe does sound like a clash of needs. A solution may be to fund the work as a commercial project, rather than an academic research project. Then you don’t run up against the academic needs of prompt publication, control of IP (to ensure good stewardship for the benefit of society), etc.

      • t2kpatents

        We would be happy to enter such a commercial arrangement, but universities have their standard agreements. Once these exist, I suspect tech transfer staff are loathe to accept changes, which would involve higher-level approvals. Internally, science managers push against requiring changes because of delays to their projects, well planned in good time that they are!

        Collaborations with US universities and other research institutions (charities) cause bigger IP headaches, because they have blanket no-assignment policies. I’ve not tried to research the origins of these policies, but suspect it must come from the Baye Dohl Act, or a convenient interpretation thereof.

        I see Oxford are still laying claim to all student IP in their statutes (https://www.ox.ac.uk/students/academic/guidance/intellectual-property).
        Personally, I believe such claims may be unenforceable.

  3. Thanks for your comments. The original Lambert agreements were agreed by a committee that included industry representatives. I agree that the Lambert agreements aren’t perfect, but there is sometimes a benefit in taking imperfection in return for streamlined transactions, particularly where there is high volume (as there is nowadays in university research contracts). And then have a good process for updating and improving them over time. Sometimes, a Lada is a better investment than a Bentley.
    You seem to be commenting on documents that are “based on” Lambert, and on individual university processes. Sometimes they aren’t great. We could also have a debate about industrial sponsors and whether their processes are fit for purpose; I have seen some very strange examples.
    Risk aversion is a problem in universities and industry.

  4. t2kpatents

    From my previous reviews of the Lambert agreements, what I seem to remember is the IP terms of the collaboration agreements were of little value. Some comments after a very very brief skim of the more basic agreements:

    Sample patent assignment Oct 2005: Why assign a patent if obligations on exploitation are required with a reassignment option? How did terms relating to “licensee” slip in? What action against the assignor may be taken that the assignee needs to indemnify (3.6). No rep/warranty that the patent is subsisting when assigned (3.3.2)?

    Studentship agreement (those I see are based on Lambert): Student inventions belong (primarily) to the university. Do they? Is a postgraduate an employee of the University? Not that I’m aware of. What agreement exists between the student and university providing the latter with rights to the former’s inventions? If it exists, the industrial sponsor should be provided with a copy. If it exists, does it give the university more rights in inventions than they could obtain from an employee under the Patents Act? I’ve seen the university agreeing to pay for patent filings to be the consideration to the student – together with access to the university’s compensation scheme. Is the agreement re IP binding on the student? If student IP does not vest in the university there is a risk to the sponsor.

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