of information. Also, such a situation can deny an inventor of a fair share of the income that is received from unconstrained use of information, which should belong to the inventor. This is particularly important when newly developed advanced technologies are integral to the successful completion of collaborative projects. Further complicating the situation is distinguishing new technological approaches—approaches that presumably are governed by contractual arrangements—and utilization of old technological discoveries, which presumably belong to the institution that had developed the technologies before entering into a contract.
More than a decade ago, the U.S. government decided to incorporate a standard IP clause in each relevant agreement signed by the two governments. The idea was to be sure that all parties agreed in advance as to how successful endeavors were to be handled. But the approach throughout the U.S. government is not completely standardized. Agencies have the flexibility to determine in negotiations with foreign partners the ownership aspects of discoveries resulting from a grant or contract that they are prepared to award.
Also highlighting differences in approaches, the U.S. Agency for International Development (USAID) has used the common foreign assistance practice of granting to recipients of assistance all IP rights for using results of activities that are carried out through joint efforts. This practice reflects the very purpose of USAID. It was established to be an assistance agency, not a promoter of U.S. commercial interests in the first instance.
The ISTC has had a different approach. Russian recipients of ISTC funds provided by the United States obtains exclusive IP rights within Russia for technologies that are developed. A U.S. collaborating organization has exclusive IP rights within the United States. The rights in other countries are divided on a case-by-case basis. However, the ISTC also has an exception clause, which permits the donor and recipient to decide for themselves how the rights are to be divided. This exception has often resulted in most, if not all, of the rights for products resulting from U.S. government investments going to collaborating U.S. institutions identified by the U.S. government.
Also of importance is the protection of IP belonging to U.S. organizations that is exposed during collaborative activities. The only enforcement mechanism in preventing the unauthorized use of IP belonging to U.S. organizations is the Russian court system, which in principle can resolve complaints of owners of IP who contend that others have used their IP without appropriate compensation. But the courts have little experience in this area, and demonstrating for perhaps the first time that a partner has unfairly used previously patented innovations may not be simple.