Group, reordering of rankings by CIRM staff, notification of applicants, and process for making final decisions.5
INTELLECTUAL PROPERTY POLICIES
Intellectual property is a policy tool for motivating investments in innovation. CIRM has devoted considerable attention to the development of its intellectual property policies, repeatedly drafting and revising them in response to wide-ranging feedback from various stakeholders.
The argument for intellectual property rights differs for inventions developed with public funds and those funded privately. When the public bears the cost and risk of the research and development that yields an invention, it is arguable whether the public should not have to pay again for the same invention through higher prices as a result of the exclusionary rights conferred by patents. Often, however, substantial further private investment is necessary after government funding ceases, especially when the recipient of the latter funding is a research institution that is not in the business of translating new scientific discoveries into commercial products.
The Bayh-Dole Act of 1980 has been particularly influential in setting the ground rules for patenting of inventions by universities. While the intellectual property policies of CIRM follow the broad contours of the Bayh-Dole regime, there are some differences.
Consistent with the approach of the Bayh-Dole Act,6 Proposition 71 appears to assign a significant role to contracts as a mechanism for implementing CIRM’s intellectual property policies by binding grantees to its terms.7 In practice, however, CIRM has instead used regulations to govern intellectual property for CIRM-funded research results. By their terms, these regulations bind not only CIRM grantees and loan recipients but also their collaborators and licensees, and even third parties who subsequently acquire rights from them.8 Some flexibility is built into the regulations, but this flexibility also creates uncertainty as to how the regulations will be applied in the future. In addition, CIRM’s intellectual property poli-
5See main body of the report for full text of this recommendation.
635 U.S.C. § 202(c).
7Proposition 71 divides responsibility for CIRM’s intellectual property policies among the ICOC, which is assigned to “establish policies regarding intellectual property rights arising from research funded by the institute”; the chairperson, whose responsibilities include “to lead negotiations for intellectual property agreements, policies, and contract terms”; and the president, whose responsibilities include “to manage and execute all intellectual property agreements and any other contracts pertaining to the institute or research it funds.” Codified at California Health and Safety Code § 125290.40.
8California Health and Safety Code § 125290.40(j); interview with Scott Tocher and Elona Baum, January 24, 2012.