NOTICE OF MEETING∗
BERKELEY DIVISION OF THE ACADEMIC
SENATE
Thursday, November 13, 2008, 3:00 p.m. – 5:00 p.m.
Lipman Room, Barrows Hall, 8th Floor
Items on the agenda for the fall meeting of the Berkeley Division include:
•
The implications of increasing dependence on private funding for research,
teaching and service at Berkeley
A panel of Berkeley faculty and administrators will discuss how the University
is changing in response to its increasing dependence on private funding.
Panelists include: Executive Vice Chancellor and Provost George Breslauer;
Janet Broughton, Dean of Arts and Humanities; Fiona Doyle, Executive
Associate Dean, College of Engineering; Carla Hesse, Professor of History; and
Richard Mathies, Dean, College of Chemistry.
•
Announcements
Chancellor Robert J. Birgeneau
Division Chair Mary K. Firestone
Graduate Assembly Campus Affairs Vice President Triffid Abel
• Reports of standing committees
Committee on Admissions, Enrollment, and Preparatory Education
Divisional Council
• Reports of special committees
Task Force on University–Industry Partnerships
•
Proposed legislation
Proposed amendment of Division Bylaw 162
Proposed amendments to Berkeley Division Regulations 350, 352, and 353
Proposed amendments to Berkeley Division Regulation 952
•
New business
Proposed amendments to Berkeley Division Bylaw 17.B
* Communications may be directed to the Academic Senate e-mail address: acad_sen@berkeley.edu.
•
Information items (Information only)
In Memoriam
In Memoriam is a compilation of commemorative statements honoring deceased
members of the Division, their lives, and service to the University. Memorials are
produced by various sources, including colleagues of the deceased and the Office of
Public Affairs, and are published by the systemwide Academic Senate in In
Memoriam. The Committee on Memorial Resolutions has approved memorials for
the following Berkeley faculty since April 2008. The authors of the memorials are
listed in the column to the right.
Frederick E. Balderston (Business
Administration)
John G. Myers, Raymond E. Miles
George
Webber
(Integrative Biology)
Stephen E. Glickman, Roy L. Caldwell,
William Z. Lidicker Jr.
Barlow
Seth Bertram Benson Zoology)
William Z. Lidicker Jr., Karen Klitz
Albert Hosmer Bowker (Statistics)
Nicholas P. Jewell
Gerard Ernest Caspary (History)
Paula S. Fass,
Scheiner
John Andrew Chemsak (Essig
Museum of Entomology)
Jerry A. Powell
VèVè A. Clark (African American
Studies)
Ula Y. Taylor, Sara E. Johnson, Trica D.
Keaton, Lisa Ze Winters
Gerald D. Feldman (History)
Margaret Lavinia Anderson, Thomas A.
Brady, John Connelly
Joseph Tracy Gregory
(Paleontology)
W. A. Clemens, Kevin Padian
Thomson Gunn (English)
Cathy Cockrell, Office of Public Affairs
Cadet Hammond Hand Jr.
(Zoology)
Robert Sanders, Office of Public Affairs
Harold C. Helgeson (Earth and
Planetary Science)
Robert Sanders, Office of Public Affairs
F. Clark Howell (Anthropology)
Robert Sanders, Office of Public Affairs
David L. Jones (Earth and
Planetary Science)
Walter Alvarez , Mark Richards
Donald Robert Kaplan (Plant and
Microbial Biology)
Darleen A. DeMason, Ann M. Hirsch
Geoffrey Koziol, Irwin
2
Cathleen Keller (Near Eastern
Studies)
Kathleen Maclay (Office of Public Affairs),
Carol A. Redmount
Jorge Mario Liderman (Music)
Christy Dana
R. Burton Litton Jr. (Landscape
Architecture)
Joe McBride, Russ Beatty
Peter Lyman (School of
Information)
Martin Meyerson (City and
Regional Planning)
Kathleen Maclay, Office of Public Affairs
Robert I. Mishell (Molecular and
Cell Biology)
Leon Wofsy, Claudia Henry
Douglas R. Powell (Geography)
Paul Groth, G. Donald Bain, Daniel Plumlee,
Richard Walker
Michael C. Rogers (East Asian
Languages and Cultures)
Kathleen Maclay, Office of Public Affairs
Esmond Snell (Molecular and Cell
Biology)
Robert Sanders, Office of Public Affairs
Edward C. Stone (Environmental
Science, Policy and Management)
Joe McBride, John Helms
Robert Brady Williamson (Civil
and Environmental Engineering)
Paulo Monteiro, P. Kumar Mehta, Claudia P.
Ostertag
Michael B. Teitz
Memorials for deceased Senate members are published in In Memoriam at two online
locations:
UC Academic Senate (editions 2002+)
http://www.universityofcalifornia.edu/senate/inmemoriam/welcome.html
UC History Digital Archives (editions 1928-2001)
http://sunsite.berkeley.edu/uchistory/archives_exhibits/in_memoriam/index.html
Professor John Polt (Spanish & Portuguese)
2008-09 Chair, Committee on Memorial Resolutions
3
ORDER OF BUSINESS
I.
Minutes
Minutes of the November 8, 2007 meeting of the Division (Enclosure 1)
Minutes of the April 24, 2008 meeting of the Division (Enclosure 2)
II.
Announcements by the President
President Mark Yudof is unable to attend.
III.
IV.
Other Announcements
A.
Chancellor Robert J. Birgeneau
B.
Berkeley Division Chair Mary Firestone
C.
Graduate Assembly Campus Affairs Vice President Triffid Abel
Special Orders-Consent Calendar
For proposed legislative amendments, additions to the current text are noted by an
underline; deletions to the current text are noted by a strikethrough line
A.
Proposed amendment of Berkeley Division Bylaw 162
Given that the electronic distribution of documents is becoming the norm
on campus and the potential cost savings, the Berkeley Division has been
exploring the possibility of distributing Notices of Division Meetings
electronically. While there is no bylaw that addresses Notices of Division
Meetings explicitly, Berkeley Division Bylaw 162.A addresses proposed
legislative amendments, which are included in Notices of Division
Meetings. The proposed amendment to Berkeley Division Bylaw 162.A
would allow for the distribution of proposed legislative amendments by
electronic or paper means. The Committee on Rules and Elections
approved the amendment.
162. PRIOR NOTICE
VI.
B.
Legislative Changes
The full text of proposed modification of Divisional or
Senate legislation that is to be acted on at a meeting of the
Division must be sent in electronic or paper form at least
seven calendar days prior to the meeting. (Am. 3.89)
Proposed amendments to Berkeley Division Regulations 350, 352, and
353
The Haas School of Business requested amendments to Berkeley Division
regulations governing admission, the Bachelor of Science degree, and
dismissal. The amendments add clarifying information and update the
4
prefix of course titles. The Committee on Rules and Elections approved
the amendments.
TITLE II. WALTER A. HAAS SCHOOL OF BUSINESS
350.
ADMISSION
A.
Undergraduate
To be admitted to the Walter A. Haas School of Business for
undergraduate work, students must have at least junior
standing in one of the Colleges of the University or an
equivalent thereof satisfactory to the Faculty of the Walter A.
Haas School of Business, and have completed prerequisite
and breadth requirements specified by the Faculty.
352.
BACHELOR OF SCIENCE DEGREE
A.
The degree of Bachelor of Science is granted on the following
conditions; the candidate must have:
1.
completed at least 120 semester hours of college work, and
must have satisfied the general University requirements of
SR 630, 634, 636 and 638; and Berkeley Regulation 300.
(CC. 4.89)
2.
completed in the Walter A. Haas School of Business,
60 semesters hours of such work as the Faculty of the
School have prescribed. This total of 60 semester
hours may, however, be reduced in the case of
students admitted with advanced standing (see
Regulation 350.B; for an exception, see SR 642). (Rev.
3.83)
3.
maintained at least a C average in all courses taken in
residence at the University of California., which are
included in each of the following categories:
a.
basic upper division courses in the Walter A. Haas
School of Business. (Rev. 2.86)
b.
courses offered in the field of emphasis in
satisfaction of the requirements for the degree
of Bachelor of Science in the Walter A. Haas
School of Business.
4.
completed all core courses with a grade of C- or
better. These courses include BA 110,111, 120, 130,
150, 160, and 170 UGBA 100, 101A, 101B, 102A, 102B,
103, 105, 106, AND 107 or their equivalent. Core
courses with grades of D+ or below must be repeated.
(Am. 4.1.93)
B.
The Walter A. Haas School of Business may recommend for
High Honors such students as it judges worthy of that
distinction in accordance with Regulation A270. (Rev. 2.86)
353.
DISMISSAL
In the Walter A. Haas School of Business, a student is subject to
5
dismissal if:
1.
the student’s grade-point average falls below 1.5 for any
term, or
2.
after one time on probation the student has not achieved a
grade-point average of 2.0 (C average) computed on the total
of all courses undertaken in the University, not including
courses graded P, S, NP, U, I, and IP., or
3.
the student fails to make normal degree progress.
The Faculty, or its designated agent, has the power to dismiss from
the University students under its supervision, or to suspend the
provisions of the Regulation and permit the retention in the
University of students thus subject to dismissal, and the return to
the University of students who have been dismissed under this
Regulation. (En. 3.83)).
C.
Proposed amendments to Berkeley Division Regulation 952
The School of Public Health requested amendments to Senate Regulation
952 governing the Master of Public Health degree. The increase in the
minimum units of course work corresponds to changes in the
accreditation criterion for all schools of public health. Both the School’s
Faculty Council and the Committee on Rules and Elections approved
proposed amendments.
TITLE XIII. SCHOOL OF PUBLIC HEALTH
952. MASTER OF PUBLIC HEALTH DEGREE (M.P.H.)
A.
Residence and Unit Requirements
•
The candidate must have completed at least
one year of graduate residence and program
including at least 24 42 units of course work
acceptable to the Faculty of the School of
Public Health (Berkeley-San Francisco).
•
With approval of the Executive Committee of
the Faculty of the School, a candidate may be
authorized to present an acceptable thesis in
lieu of four of the 24 42 units required.
V.
Reports of Special Committees (Discussion only)
A.
VI.
VII.
Task Force on University–Industry Partnerships (Enclosure 3)
Reports of Standing Committees (Discussion only)
A.
Committee on Admissions, Enrollment and Preparatory Education
B.
Divisional Council
Petitions of Students (None)
6
VIII. Unfinished Business (None)
IX.
University and Faculty Welfare (Discussion only)
A.
The implications of increasing dependence on private funding for
research, teaching and service at Berkeley
Following on the report of the Task Force on University–Industry
Partnerships, a panel of Berkeley faculty and administrators will discuss
how the University is changing in response to its increasing dependence
on private funding. Panelists include: Executive Vice Chancellor and
Provost George Breslauer; Janet Broughton, Dean of Arts and
Humanities; Fiona Doyle, Executive Associate Dean, College of
Engineering; Carla Hesse, Professor of History; and Richard Mathies,
Dean, College of Chemistry.
X.
New Business
A.
Proposed amendments to Berkeley Division Bylaw 17.B, duties of
the Committee on Committees
The proposed amendment of Berkeley Division Bylaw 17.B would change
the role of the Committee on Committees from making appointments to
the Committee for the Protection of Human Subjects (CPHS) to making
nominations. The Office of the Vice Chancellor for Research would then
make the appointments. The Berkeley Division proposes to permanently
transfer responsibility for the administration of the CPHS from the
Division to the Office of the Vice Chancellor for Research. The CPHS is no
longer a standing committee of Graduate Council. The proposed bylaw
amendment effectively transfers responsibility.
The Committee on Research (COR) has worked closely with Senate
leadership and the Office of the Vice Chancellor for Research to monitor
CPHS on behalf of the Senate, receiving annual reports from the CPHS
chairs; briefings from the staff of the Office for the Protection of Human
Subjects; and conducting a survey of campus researchers. Based on COR’s
recommendation, DIVCO supports the proposed amendment.
17.
COMMITTEE ON COMMITTEES
C.
Duties
This Committee appoints:
•
The Chair, Vice Chair, Secretary and
Parliamentarian of the Division;
•
All other Standing Committees;
•
Special Committees as the Division may direct;
•
Faculty Representative to the Senate of the
Associated Students of the University of
California, who also serves as a member of
the student Search and Selection Committee
and the Grievance Board, as provided in ByLaw 13.C;
•
Student members to Committees on
7
•
•
•
Educational Affairs (By-Law 13);
Nominees for appointment to administrative
committees when called upon by the
Chancellor; in particular, nominees to all
positions on the Chancellor's Committee for
Animal Care and Use, except for non-Senate
and outside University members;
All Senate members of the Graduate
Council's Standing Committee for Protection
of Human Subjects; appoints a Senate
member for its Chair in consultation with the
Chair of the Graduate Council and the Vice
Chancellor for Research; appoints its student
members in accordance with By-Law 13.C.
(En. 4.88; Am. 11.13.03)
Nominees to all non-chair positions on the
Committee for the Protection of Human
Subjects, except for non-Senate and outside
University members.
Student members to Committees on
Educational Affairs (By-Law 13).
8
ENCLOSURE 1
Draft
MINUTES OF MEETING1
BERKELEY DIVISION OF THE ACADEMIC SENATE
Thursday, November 8, 2007
The fall meeting of the Berkeley Division was held on Thursday, November 8, 2007, in Sibley
Auditorium, Bechtel Engineering Center, pursuant to call. Professor William Drummond, chair
of the Berkeley Division, presided. The meeting commenced with announcements until quorum
was attained at 3:10 p.m., and the meeting was called to order. Chair Drummond announced
that audio recordings of Division meeting would now be posted on the Senate’s website. A
request to reorder the agenda was approved so that the committee reports would be heard
earlier to accommodate a speaker’s schedule.
I.
Minutes
ACTION: The minutes of the following regular Division meetings were approved with
no objection: April 27, 2006, November 14, 2006, and April 19, 2007. Minutes of the
April 19, 2007 special meeting were also approved with no objection.
II.
Announcements by the President
UC President Robert C. Dynes was unable to attend.
III.
Other Announcements
B.
Chancellor Robert J. Birgeneau
Chancellor Robert Birgeneau highlighted recent issues of importance to the
Senate membership.
•
Faculty compensation: The Chancellor and Berkeley’s administrative
leadership have worked with the Office of the President (UCOP) and
Divisional leadership to revise a faculty salary plan developed by UCOP.
Berkeley’s plan will improve faculty salaries over a four-year period; this
will be the topic of a presentation later in this meeting (Item IX.A).
a.
Hewlett Challenge Grant: The campus has been extremely fortunate to
receive a $110M matching grant, plus $3M for investment, recently.
Eighty chairs, plus additional interdisciplinary positions, are to be
endowed with this significant new grant. The chairs will be broadly
distributed throughout disciplines.
b.
Energy Biosciences Institute (EBI): The participation of four Senate
committee chairs has strengthened contract negotiations with BP, which
are near finalization. The campus will own the EBI-funded building. This
contract strengthens Berkeley’s position as a leader in global climate
research.
c.
Accessibility: The Chancellor chairs a systemwide committee examining
accessibility and new sources of funding which will be needed to offset
rising living costs for low income students. He is working on a proposal
whereby the state will match private gifts for needs-based undergraduate
financial aid. The Chancellor and some others have created a matching
program for gifts by the campus community as well, and he encouraged
faculty to donate to this cause.
9
d.
2.
3.
Campus administration:
a.
Professor Gibor Basri (Astronomy) has been named vice
chancellor for equity and inclusion.
b.
The search for a vice chancellor for student affairs is in process;
the Division chair and vice chair participate in the search
committee.
UC president search: This search is also in process with Berkeley
representation to ensure its interests are represented.
Long range planning: Chancellor Birgeneau reconfirmed State Treasurer
Bill Lockyer’s commitment to UC’s financial health, although Lockyer
had joked that UC should privatize to save money for the state.
Budgetary challenges are foreseen for the upcoming year.
D.
Berkeley Division Chair William Drummond
•
Senate leadership: Chair Drummond has continued for a second term due
to the departure of 2006/07 Division Vice Chair Sheldon Zedeck to serve
as vice provost for academic affairs and faculty welfare at the end of last
year. 2007/08 Division Vice Chair Mary Firestone was introduced.
•
EBI: The Senate oversight committee participating in the BP contract
negotiations is comprised of the current chairs of the Divisional
committees on research, academic freedom, budget and interdisciplinary
relations, and academic planning and resource allocation.
•
Presidential search: Professor Herma Hill Kay (Law) represents Berkeley
on the UC presidential search committee; she will report to Divisional
Council.
•
State budget: The UC compact with the state is intact for this year, but
challenges lie ahead. The budget situation could impact efforts to
improve faculty salaries.
•
Proposition 92: The community college ballot initiative will appear on the
February 2008 ballot; the outcome could affect UC’s state funding. The
Regents have not yet stated a position; Chair Drummond invited
comment on the proposition.
•
Shared governance: Intercollegiate athletics, the approvals process for
protection for human subjects protocols, and campus disaster response
procedures are several of the issues addressed this year by the Division in
conjunction with the administration. The Senate has also consulted with
the Chancellor on the relaunch of the Osher Lifelong Learning Institute;
since piloted several years ago, it has been redesigned and improved.
•
DeCal course: Chair Drummond has worked with the ASUC to establish
a DeCal course for student members of Senate committees, with the goal
of improving their participation in meetings.
E.
ASUC Academic Affairs Vice President Curtis Lee
Vice President Lee noted several priority issues for undergraduate students:
a.
Lower Sproul complex: A student referendum on Lower Sproul
redevelopment failed, following other fee increases, but the ASUC feels
students remain committed and ask for the support of the administration
and faculty in realizing this project.
b.
Student expenses: Faculty can help to keep textbook costs down by
submitting textbook eDOPTION requests on time. The bookstore is less
likely to obtain low cost used books for late orders, which disadvantages
students and adds to the cost of their education.
10
c.
d.
F.
Pick-a-Prof: The ASUC partnered with Pick-a-Prof on an online course
evaluation system and will soon evaluate the pilot. The system has been
in demand by students and the ASUC encourages greater faculty
participation to improve its coverage. Although faculty justifiably have
doubts about such corporate partnerships, students want this service and
the ASUC has successfully worked with a corporate vendor before.
DeCal course: Vice President Lee has worked with Chair Drummond to
create the DeCal course, “Governance at Cal”, to strengthen the
participation of student representatives on Senate committees. Over 30
students are enrolled and will be evaluated at the end of the year. It is
hoped the course will be expanded in the future.
Graduate Assembly Campus Affairs Vice President Miguel Daal
Miguel Daal, Graduate Assembly (GA) vice president for campus affairs
conveyed greetings from GA President Josh Daniels. The GA is encouraged to
hear the Division will write to the Chancellor promoting lower Sproul Plaza
redevelopment (for earthquake safety). He summarized the highest priority
issues for graduate students:
•
Student fees and living expenses
•
Health issues
•
Academic support, such as professional development and mentoring
•
Campus safety
Action items upon which Graduate Assembly is focusing this year:
•
Improving access to health resources
•
Reducing the burden of nonresident tuition for international students
•
TEACH US-to improve excellence in teaching
IV.
Special Orders-Consent Calendar
For proposed legislative amendments, additions to the current text are noted by an underline;
deletions to the current text are noted by a strikethrough line
A.
Berkeley Division legislation affecting elections and mail ballots
Given the increasing interest in electronic voting options and declining
participation in paper-based elections, the Berkeley Division has been exploring
the possibility of conducting Division elections electronically.
Berkeley Division Bylaw 9 is a proposed bylaw that would govern electronic and
paper-based elections. It is comprised of new text and text taken from existing
bylaws. Sections A and D.2 are new, but the rest of the proposed bylaw (i.e.,
sections B, C, D.1, E, F) are taken from existing sections of Division Bylaws 4 and
17 to create one bylaw governing elections.
Amendments to Division Bylaw 25 are proposed to reflect a change in election
practice within the College of Letters and Science and to make the bylaw
consonant with proposed Division Bylaw 9.
An amendment to Division Bylaw 161 is proposed to allow for an electronic or
paper ballot.
Electronic elections will not be mandatory; Senate members who want to vote by
paper ballot will be able to do so upon request.
11
4.
DIVISIONAL COUNCIL
(En. 10.89, CC. 3.92)
B.
Terms
1.
The Chair serves for one year.
2.
The Vice Chair will serve one year as Vice Chair and the
next year as Chair of the Division and of the Divisional
Council.
3.
Committee Chairs, ex officio, normally will serve the same
term as the tenure of their Chairs. A Committee Chair
may designate a Senate member of that Committee to
serve in his or her stead on the Divisional Council (with
approval of the Committee on Committees) for a period of
one year. (Am. 11.13.03)
4.
At-Large members, half to be elected every year, will serve
two-year terms. They cannot serve consecutive terms.
•
At-Large members shall be elected in the same
manner and at the same time as members of the
Committee on Committees (By-Law 17), except that
the first election will be held during the Fall 1989
semester to elect six members to serve from
January 1990 until the beginning of the Fall 1991 or
the Fall 1992 semester. However, the number of
nominations must be at least twice as many as
there are places to be filled; the Committee on
Committees will add the necessary number of
nominees to complete the slate if the number of
Nominating
Petitions
received
from
the
membership is fewer than the number required.
5.
Terms begin on the first day of instruction of the Fall term,
unless otherwise designated in Divisional legislation.
6.
A partial term counts as a full term.
7.
A vacancy occurring between regular elections is filled by
the Committee on Committees.
9.
Division Elections
A.
General Provisions
Subject to provisions in these By-Laws, all Divisional elections and
ballots are to be conducted by paper or electronic means. If an
election is conducted electronically, Berkeley Division members
may request a paper ballot from the Secretary in writing. The
Division Secretary, in consultation with the Committee on Rules
and Elections, shall decide whether the election or ballot will be
conducted by paper or electronic means.
B.
Notice of Election
Not fewer than 30 days of instruction prior to the election, the
Secretary must send to each voting member of the Division a
Notice of the Election. (Am. 4.26.01)
C.
Nominating Petitions
•
Nominating Petitions must be filed with the Secretary
within 10 days of instruction after the Notice of Election
12
•
•
D.
Voting
1.
By paper ballot:
•
At least 14 calendar days before the Election, the
Secretary must mail to each voter a list of all
nominees,
stating
their
nominators
and
departmental affiliation of each. (Am. 4.26.01)
•
The list of nominees must be accompanied by a
ballot listing the nominees alphabetically, a plain
envelope in which the voter is to enclose the
marked ballot, and a further envelope addressed to
the Secretary to be used for return of the sealed
ballot.
•
The voter must be notified that:
•
all ballots must be returned to the Secretary
no later than the date of election;
•
A ballot is invalid if more names are
marked than there are vacancies to be filled,
or if the ballot lacks the signature of the
voter in the space provided on the return
envelope;
•
A voter who spoils a ballot may, by tearing
it across once and returning it to the
Secretary, obtain another.
(EC.00)
2.
E.
has been sent. (Am. 4.26.01)
A Nominating Petition must be signed by five voting
members of the Division, and must state the departmental
affiliation of the nominee and nominators.
The nominee must certify acceptance.
By electronic ballot:
•
At least 14 calendar days before the Election, the
Secretary must make available to each voter an
electronic ballot of all nominees, stating their
nominators and departmental affiliation of each.
•
Each voter will have access to a secure, web-based
voting system that is administered by the
Academic Senate office.
•
The voting system will authenticate the identity of
each voter and separate the identity of each voter
from his or her vote to maintain the confidentiality
of the voting process.
•
The voting system will be designed so that once a
vote has been cast, neither the voter nor anyone
with access to the system can change the vote.
•
If a Senate member prefers a paper ballot, the
Berkeley Division will make one available upon
written request. If a voter submits both an
electronic and a paper ballot, the electronic ballot
will take precedence and the paper ballot will be
destroyed prior to the count.
Election of At-Large Members to the Divisional Council
13
•
F.
17.
At-Large members shall be elected at the same time as
members of the Committee on Committees and in the
manner outlined in this By-Law, except that the number of
nominations must be at least twice as many as there are
places to be filled; the Committee on Committees will add
the necessary number of nominees to complete the slate if
the number of Nominating Petitions received from the
membership is fewer than the number required.
Election of Committee on Committees Members
•
Committee members are elected in accordance with Senate
and Berkeley Division By-Laws.
•
Candidates receiving votes on at least 35% of the valid
returned ballots are to be declared elected.
•
If more candidates receive votes on at least 35% of the
valid ballots cast than there are vacancies to be filled, those
having the highest percentage are to be declared elected.
•
If fewer candidates receive votes on at least 35% of the
valid ballots cast than there are vacancies, a second mail
ballot must be taken. It must list the nominees not elected
but receiving the highest percentage on the first ballot, but
not to exceed twice the number of remaining vacancies.
•
Those receiving the highest percentage on the second
ballot are to be declared elected for such vacancies as exist.
A tie for the last vacancy is broken by lot.
COMMITTEES
(CC. 10.89, 3.92)
A.
Membership
•
This Committee has eight members, who are elected in
accordance with Senate and Division By-Laws.
•
It chooses its own Chair, who is also a member of the
Grievance Board as provided in By-Law 13.
B.
Terms and Vacancies
•
Four members are elected each year to serve for two years
beginning the first day of instruction in the Fall.
•
When a vacancy in its own membership occurs, the
Committee, subject to confirmation by the Divisional
Council, may appoint a member of the Division to serve
the unexpired part of the term.
(CC. 10.89)
•
The Committee is instructed to give consideration to
nominees not elected but receiving the highest vote in the
immediately preceding election.
BC.
Duties
This Committee appoints:
•
The Chair, Vice Chair, Secretary and Parliamentarian of
the Division;
•
All other Standing Committees;
•
Special Committees as the Division may direct;
•
Faculty Representative to the Senate of the Associated
Students of the University of California, who also serves as
14
•
•
•
C.
a member of the student Search and Selection Committee
and the Grievance Board, as provided in By-Law 13.C;
Student members to Committees on Educational Affairs
(By-Law 13); (Am. 11.8.05)
Nominees for appointment to administrative committees
when called upon by the Chancellor; nominees to all
positions on the Chancellor's Committee for Animal Care
and Use, except for non-Senate and outside University
members; (Am. 11.8.05)
Nominees to all non-chair positions on the Committee for
the Protection of Human Subjects, except for non-Senate
and outside University members. (En. 4.88; Am. 11.13.03;
Am. 11.8.05)
Election of Committee Members
•
Four members are elected each year to serve for two years
beginning the first day of instruction in the Fall.
•
The Committee is elected by mail ballot conducted in
accordance with Senate By-Laws.
1.
Notice of Election
Not fewer than 30 days of instruction prior to the election,
the Secretary must mail to each voting member of the
Division a Notice of the Election.
(Am. 4.26.01)
2.
Nominating Petitions
•
Nominating Petitions must be filed with the
Secretary within 10 days of instruction following
mailing of the Notice of Election.
(Am. 4.26.01)
•
A Nominating Petition must be signed by five
voting members of the Division, and must state the
departmental affiliation of the nominee and
nominators.
•
The nominee must certify acceptance.
3.
Ballots
•
At least 10 days of instruction before the Election,
the Secretary must mail to each voter a list of all
nominees,
stating
their
nominators
and
departmental affiliation of each.
(Am. 4.26.01)
•
The list of nominees must be accompanied by a
ballot listing the nominees alphabetically, a plain
envelope in which the voter is to enclose the
marked ballot, and a further envelope addressed to
the Secretary to be used for return of the sealed
ballot.
•
The voter must be notified that:
•
all ballots must be returned to the Secretary
no later than the date of election;
•
A ballot is invalid if more names are
marked than there are vacancies to be filled,
or if the ballot lacks the signature of the
voter in the space provided on the return
envelope;
•
A voter who spoils a ballot may, by tearing
it across once and returning it to the
15
4.
5.
Secretary, obtain another.
(EC.00)
Voting
(Am. 10.25.93; 10.25.94)
•
Candidates receiving votes on at least 35% of the
valid returned ballots are to be declared elected.
•
If more candidates receive votes on at least 35% of
the valid ballots cast than there are vacancies to be
filled, those having the highest percentage are to be
declared elected.
•
If fewer candidates receive votes on at least 35% of
the valid ballots cast than there are vacancies, a
second mail ballot must be taken. It must list the
nominees not elected but receiving the highest
percentage on the first ballot, but not to exceed
twice the number of remaining vacancies.
•
Those receiving the highest percentage on the
second ballot are to be declared elected for such
vacancies as exist. A tie for the last vacancy is
broken by lot.
Vacancies
•
When a vacancy in its own membership occurs, the
Committee, subject to confirmation by the
Divisional Council, may appoint a member of the
Division to serve the unexpired part of the term.
(CC. 10.89)
•
The Committee is instructed to give consideration
to nominees not elected but receiving the highest
vote in the immediately preceding election.
25.
RULES AND ELECTION
(Am. 10.25.94)
B.
By vote of the Division, issues of interpretation of Divisional
legislation may be referred to this Committee for decision and
report.
•
Such decisions are subject to review by the Division, either
when the report is made or on petition signed by twentyfive voting members of the Division. The final date for
filing such petition is ten days after the minutes of the
Division reporting the decision are placed in the mail.
•
If the Division disapproves the report of the Committee,
the Committee must at once draft legislation which
expresses the intent of the Division.
•
This Committee supervises all elections of the Division,
election of Committee on Committees for the College of
Letters and Science, and voting on propositions submitted
to the Division by mail or electronic ballot. (Senate By-Law
340 and Berkeley Division By-Law 9) .
•
Unless otherwise specified in these By-Laws, election is by
a plurality of votes cast.
(Am. 10.25.94)
161.
ELECTRONIC OR MAIL BALLOT
An electronic or mail ballot must be held on any issue, including
modification of legislation, if a majority of the voting members present at
a meeting of the Division so orders. Mail Electronic and mail ballots are
held in accordance with Senate By-Laws 95 and 340 and Berkeley
16
Division By-Law 9.A and 9.D.
(En. 3.89)
ACTION: The Consent Calendar was approved with no objection.
V.
Reports of Special Committees (None)
VI.
Reports of Standing Committees
L.
Committee on Academic Freedom
Chair of the Committee on Academic Freedom (ACFR), Christopher Kutz (Law),
reported on the committee’s activities for this year.
•
EBI contract: Chair Kutz reported his experience on the Senate oversight
committee to the EBI contract negotiations has been positive and
productive.
•
Research funding sources: ACFR upholds researchers’ rights to obtain
funding from any source (which do not otherwise violate University
policy). Discussions continue regarding research funding from tobacco
and pharmaceutical companies.
•
Threats: Federal antiterror legislation may pose threats to academic
freedom through such methods as surveillance of political activity on
campus and library records requests. There is concern about substantive
infringement to academic freedom in behavioral research by institutional
review boards; ACFR urges further examination of this possibility as
regards human subjects reviews.
M.
Committee on Budget and Interdepartmental Relations
Professor Carla Hesse, chair of the Committee on Budget and Interdepartmental
Relations (BIR), provided an update on the committee’s work. BIR has had a
great year and has made progress in a number of areas.
•
Energy Biosciences Institute: Chair Hesse concurred with ACFR Chair
Kutz that Senate input has benefited the EBI negotiation process. This
process set a precedent for future UC/industry agreements. A
memorandum of agreement regarding guidelines for EBI faculty FTE,
hiring, and review has been endorsed by Divisional Council and signed.
Other contract details are confidential until finalized and signed, which is
expected very soon.
•
Faculty compensation: BIR has worked closely with the administration to
adapt the systemwide plan for faculty compensation to Berkeley,
upholding principles of equity and merit-based review; this will be
presented later in this meeting. The Berkeley plan can serve as a model
for the UC system.
•
Future issues in process in BIR.
o
Improving the evaluation of teaching, both quantitatively and
qualitatively.
o
Online personnel case forms: BIR is working in conjunction with
the Office of the Vice Provost for Academic Affairs and Faculty
Welfare, and the Academic Personnel Office to improve the
management of academic personnel processes.
N.
Committee on Admissions, Enrollment and Preparatory Education
Professor Robert Jacobsen, chair of the Committee on Admissions, Enrollment,
and Preparatory Education (AEPE), summarized current topics in admissions.
17
•
•
•
The single read process for applications which are either clearly
admittable, or not, has been made permanent after an analysis of the two
year pilot.
A proposal to reform UC’s eligibility policy is under consideration
systemwide, although it has fewer implications for Berkeley than other
UC campuses. The proposal would eliminate the guarantee of a spot at a
UC campus for eligible students, and replace it with “entitled to review”
at a UC campus. The Senate and administration are also involved in this
continuing discussion. No changes would take effect within the next two
years.
AEPE feels strongly that Berkeley should have the right to determine its
own admissions policy based upon academic criteria, and will oppose an
effort by UCOP to impose financially-based enrollment targets on the
campuses for undergraduates, graduates, transfers, etc.
VII.
Petitions of Students (None)
VIII.
Unfinished Business (None)
X.
University and Faculty Welfare
A.
Updates on faculty salaries and retirement benefits
Faculty Salary Plan (Handout A)
Executive Vice Chancellor and Provost George Breslauer presented a new faculty
salary scale plan which will increase salary levels. He served on a UC committee
with wide representation from UCOP, the Academic Senate, and campus
administrations, to develop a systemwide compensation plan to move salary
scales toward market rates, and reduce the need for offscale and decoupled
salaries.
Berkeley’s administration has taken the UCOP plan, and in close consultation
with BIR and others, expanded the systemwide plan with supplemental
resources for Berkeley’s off-scale faculty. Salary changes will be retroactive to
October 1, 2007, and will be spread out over four years. Key points of Berkeley’s
plan are as follows (additional details are available on the Academic Personnel
Office webpage):
•
All faculty will receive a 2.5% COLA based on total salary (funded by
UCOP), rather than on base salary as has been done during the past 10
years.
•
A 3.9% COLA will be given to above-scale faculty (beyond Step 9)
(funded by UCOP).
•
A market adjustment (beyond the COLA) will be made to raise the entire
salary scale closer to market rate (funded by UCOP). This is the best
increase for on-scale faculty.
•
Berkeley will protect its faculty who are between steps by committing
additional permanent funds so that these faculty can maintain their
relative position under the new scale. Under the UCOP plan they would
have dropped down to "on step," from a position previously half-way to
the next step. In the Berkeley plan, they will remain at half-way on the
new scales. Also, those faculty who were at $100 below the next step will
be raised to the next step on the new scales, unless they were at threshold
steps (Assistant Step VI, Associate V, Full Professor V).
18
These increases may change personnel trends and necessitate additional funding
sources in the future. For example, retirements may be delayed, impacting new
searches.
UC Retirement Plan (Enclosure)
Professor Robert Anderson reported on the work of the University Committee on
Faculty Welfare’s Task Force on Investment and Retirement (which he chaired),
and the status of the UC Retirement Plan (UCRP). An Academic Council
statement on UCRP (approved July 25, 2007 and transmitted to UC President
Dynes on August 10, 2007), was included in the Division meeting notice. With no
employee contributions in recent years, UCRP’s liabilities have continued to
increase and now approach the plan’s assets; an increase in the funding pool will
be needed in the near future to maintain benefits. The Regents have approved
restarting of state and employee contributions to UCRP subject to funding by the
Legislature; but the Legislature has so far declined to provide funding, and the
Senate has serious concerns about doing so before staff and faculty salaries,
which are below market, have been raised.
UCRP has performed about as well as CALPERS over the long-term, and the
UCRP portfolio is now better diversified and more balanced than in the past.
X.
New Business (None)
The meeting was adjourned at 4:55 p.m.
Gary Holland
Secretary (Fall 2007), Berkeley Division
Handout A:
CalMessage from EVCP George Breslauer regarding a 2007 Market Adjustment,
November 2, 2007.
19
ENCLOSURE 2
Draft
MINUTES OF MEETING1
BERKELEY DIVISION OF THE ACADEMIC SENATE
Thursday, April 24, 2008
The spring meeting of the Berkeley Division was held on Thursday, April 24, 2007, from 3:005:00 p.m. in Sibley Auditorium, Bechtel Engineering Center, pursuant to call. Professor William
Drummond, chair of the Berkeley Division, presided. Quorum was not attained, so no business
was conducted. Chair Drummond announced that the audio recordings of this and future
Division meetings would be posted on the Senate’s website.
Academic Council Vice Chair Mary Croughan, a panelist in Item IX, brought her three young
daughters to observe the meeting on “Take Our Daughters to Work” Day; she is one of the
event’s founders.
I.
Minutes (Enclosure 1)
Due to the lack of quorum, the minutes of the November 8, 2007, fall Division meeting
could not be approved and will be reconsidered at the next Division meeting.
II.
Announcements by the President
UC President Robert C. Dynes was unable to attend.
III.
Other Announcements
C.
Chancellor Robert J. Birgeneau
Chancellor Robert Birgeneau presented a progress report for the campus.
•
Hewlett Challenge Grant: With a very strong donor response, Berkeley is
well on the way towards completing nearly two-thirds of the 80 Hewlett
endowed chairs within the first year, ahead of expectations. The $2M
departmental chairs and $3M interdisciplinary chairs will provide a
chairholder’s allowance plus valuable funding for core support (such as
faculty salaries and graduate student fellowships). The agreement also
provides monies for investment to strengthen the University’s
endowments.
•
Updates on multidisciplinary initiatives:
o Energy Biosciences Institute (EBI): Professor Chris Somerville has been
appointed director of the EBI. Forty-nine proposals have been selected
as finalists out of 250 submissions, which will go to EBI researchers at
Berkeley, Lawrence Berkeley National Laboratory, or the University of
Illinois at Urbana-Champaign. About one-third of the final proposals
are in the social sciences. Planning is underway on the Helios Building.
o Blum Center for Developing Economies: The center, focused on
developing solutions to fight global poverty, is a good fit with the
University’s commitment to public service. Its interdisciplinary
undergraduate program has already received extremely strong interest
from students.
o Siebel Stem Cell Institute: Berkeley is partnering with the Stanford
University School of Medicine in this endeavor, supported by funding
from several foundations, including a Hewlett interdisciplinary chair.
20
•
•
•
G.
The institute will be housed in the Li Ka Shing Center now under
construction on the former site of Warren Hall.
o Berkeley Diversity Research Initiative (BDRI): There is also strong
donor interest in diversity, equity and inclusion research. Six faculty
positions have been established in three BDRI clusters. One endowed
chair has been established and another is near completion. The chairs
will work with Gibor Basri, recently appointed vice chancellor for
equity and inclusion, who is developing diversity-related strategic goals
and initiatives for the next five to 10 years.
Capital campaign: The public phase of the campaign will be announced on
September 20.
Undergraduate financial aid: Berkeley has done much to support
disadvantaged students in attaining their educational goals, but the future
looks challenging. Self-help levels are expected to increase, and the campus
will need to work strategically to maintain accessibility not only for low
income students, but also students from middle income levels. The
Chancellor encouraged faculty and staff to take advantage of the
“Chancellor’s challenge,” a matching program to provide need-based
student grants.
UC budget: Campus units should consider the State’s cuts in funding a
permanent decrease in support, for planning purposes.
Berkeley Division Chair William Drummond
Chair Drummond is nearing the end of his second term as Division chair, and he
thanked many with whom he had worked, including Division Vice Chair Mary
Firestone, who will succeed him as Division chair for 2008/2009.
In response to the resolution approved last year on the Energy Biosciences
Institute (EBI), the Senate set up a committee to develop recommendations and
guidelines for UC-industry partnerships. The committee’s report is due this
spring, and will be presented to the Senate during fall 2008. The committee was
also asked to review plans for a partnership between King Abdullah University
of Science and Technology (KAUST) and the Department of Mechanical
Engineering; that partnership was vetted by the Senate committee and has now
moved forward.
H.
ASUC Academic Affairs Vice President Curtis Lee
Vice President Lee provided an update on ASUC’s priorities:
a.
Lower Sproul redevelopment: This project remains a high priority for
students as a focal point for student services and a multicultural center; the
Senate’s support is valuable.
b.
Academic affairs grants: Grants enabled more students to expand their
academic experiences through travel, but more funding is needed to
continue offering these opportunities.
c.
Textbook costs: The faculty can help control textbook costs by submitting
their textbook eDOPTIONs on time.
d.
Golden Apple Award: The ASUC selected Professor Ananya Roy (City &
Regional Planning) as recipient of the Golden Apple Award, recognizing
her excellence in teaching and her passion for research, which have been
inspirational to students.
21
I.
Graduate Assembly Campus Affairs Vice President Miguel Daal
Miguel Daal, Graduate Assembly (GA) vice president for campus affairs, focused
his remarks on funding issues in this environment of budgetary shortfalls. A
survey of 65 graduate student delegates from across campus resulted in the
following budget priorities:
•
Recommendations for cuts: Some funding might be freed up through cuts
in administration and athletics programs.
•
Priority areas for protection: graduate financial aid and fellowships,
graduate student instructorships (GSI); health services (especially mental
health care and insurance coverage); and departmental support.
The GA also analyzed and ranked 16 ABBA (Activity Based Budgeting
Approaches) categories according to their degree of relevance toward
maintaining Berkeley’s excellence as a research institution. Crucial areas which
should be given “below average” budget cuts are: instruction (GSI positions),
research, student experience (health and well-being issues), and equity and
inclusion. The GA has forwarded its priorities to the administration.
IV.
Special Orders-Consent Calendar
For proposed legislative amendments, additions to the current text are noted by an underline;
deletions to the current text are noted by a strikethrough line
For proposed legislative amendments, additions to the current text are noted by an underline;
deletions to the current text are noted by a strikethrough line
A. Proposed amendment to Berkeley Division Bylaw 5 (Special Meetings)
The Committee on Rules and Elections (R&E) recommends amending Berkeley
Division Bylaw 5.B so that 25 signatures are required to call a Special Meeting. In
making this recommendation, members point out that seven signatures have been
required to call a Special Meeting since at least 1905. The “Rules and Regulations of
the Senate and Faculties” of that year state “upon the written request of seven
Professors such [special] meeting must be called” (page 4). It is worth noting that
the number of faculty at Berkeley during 1904-05 was 166 (see page 271 of The
Centennial Record of the University of California). To further illustrate how the number
of signatures has remained static while the number of Senate members has
increased, R&E notes that 11 Senate members constituted quorum in 1905 (“Rules
and Regulations,” page 3). Members also reviewed the number of signatures
required to call a Special Meeting at other Divisions, and found that seven is the
lowest number of signatures required to call a Special Meeting in the UC Senate.
The proposed amendment has been approved by both the Committee on Rules and
Elections and Divisional Council.
5. MEETINGS (CC. 10.89)
B.
Special
•
A Special Meeting of the Division may be called by the Chair.
Upon written request of seven twenty-five voting members a
Special Meeting must be called by the Chair or, in his or her
absence or disability, by the Vice Chair.
•
The call to a Special Meeting must be sent to all members of
the Division at least five days of instruction prior to the
meeting.
22
B. Proposed amendment to Berkeley Division Bylaw 15 (Assembly Representation)
The Division Chair is responsible for designating alternates to represent the Division
in the Assembly. Recent experience has been one of increasing difficulty ensuring
that the Division is fully represented. To remedy this situation, the Committee on
Rules and Elections recommends increasing the number of alternates for Assembly
Representation. The proposed amendment has been approved by both the
Committee on Rules and Elections and Divisional Council.
15. ASSEMBLY REPRESENTATION Membership
This Committee consists of:
•
•
•
•
Chair of the Division, who is its Chair;
Those other members of the Division who are ex officio members of the
Assembly of the Academic Senate;
Appointed Divisional representatives to the Assembly (as prescribed in
Senate By-Law 105.A.4) appointed for two-year staggered terms; at least
half of whom shall be elected members of the Divisional Council; and
(Am. 10.25.94)
Three At least six alternate Divisional Representatives, designated by the
Division Chair to serve in the absence of a regular Representative
(Legislative Ruling 4.71).
C. Proposed amendments to Berkeley Division Bylaw 30 (Membership of the
Committee on Academic Planning and Resource Allocation)
The proposed amendment arose from the Committee on Computing &
Communications (COMP). The committee feels that it is no longer a productive use
of time for a member to serve in an ex officio capacity to the Committee on
Academic Planning and Resource Allocation (CAPRA). Via DIVCO and other
similar committees, COMP will continue to be asked to consider and comment on
issues that fall within its purview. CAPRA has reviewed this proposed change, and
concurs with it. Both the Committee on Rules and Elections and Divisional Council
have approved the proposed amendments.
30. ACADEMIC PLANNING AND RESOURCE ALLOCATION
(Am.
9.91,
3.92)
A.
Membership
This Committee has at least twelve members: a Chair, a Vice Chair,
and at least four Senate members at large, appointed by the
Committee on Committees; five four ex officio members: Vice Chair of
the Divisional Council, Chair of the Committee on Budget and
Interdepartmental Relations, Chair of the Library Committee, Chair of
the Committee on Computing and Communications, the ASUC Vice
President for Academic Affairs; and one additional student member.
B.
Duties
1.
Confer with and advise the Chancellor on policy regarding
academic and physical planning, budget, and resource
allocation, both annual and long range.
2.
Initiate studies in planning and budget matters, and if
necessary to accomplish the study, authorize establishment of
ad hoc committees.
23
3.
4.
Maintain liaison with other Committees of the Division on
matters relating to budget and planning.
Report regularly to the Divisional Council and to the Division.
ACTION: The Consent Calendar was approved as noticed.
V.
Reports of Special Committees (None)
VI.
Reports of Standing Committees
C.
Committee on Admissions, Enrollment and Preparatory Education
Professor Robert Jacobsen, chair of the Committee on Admissions, Enrollment,
and Preparatory Education (AEPE), presented an update on undergraduate
admissions. Over 48,000 freshman applications to Berkeley were received, a 10
percent increase over last year. Berkeley can admit at most, however, only about
twenty percent of the total. As Berkeley’s growth rate levels off, it becomes
harder to make the student body more reflective of the state’s diverse
composition, but progress is being made. Notably, almost one-third came from
students whose parents have no college degrees, and twenty percent came from
low-income students, although academic indicators remain high. Berkeley also
hopes to reach its goal of 10 percent international and nonresident students
within the next few years.
UC is moving toward using comprehensive review systemwide and centralizing
the process for greater efficiency. Some campuses, including Berkeley, are
already using comprehensive review to consider an individual’s unique
qualifications and fit with the campus, but others are using a numerical index
based on test scores, GPA, etc. to determine eligibility for guaranteed admission.
Two proposals to shift the UC system to comprehensive review have been
presented by the systemwide Board of Admissions and Relations with Schools
(BOARS). Berkeley can contribute much to this decision-making process,
although Berkeley would be less affected by the proposals. Chair Jacobsen invites
faculty to learn more about the review process.
A legal clarification from the Office of the President states that “recognized
membership in a federally registered American Indian tribe is a political status
not subject to the limitations of Proposition 209”. This will be applied to outreach
efforts, admissions policies, and related activities.
D.
Committee on Faculty Research Lectures
Professor Judith Butler, chair of the Committee on Faculty Research Lectures,
announced the 2008/2009 Faculty Research Lecturers, recognizing two scholars
for outstanding contributions in their respective fields or for having opened new
fields of research. Professor Robert Hass (English) and Professor Michael S.
Levine (Molecular and Cell Biology) are this year’s recipients. Professor Hass, a
member of Berkeley’s faculty since 1989, has served as U.S. poet laureate and is a
recipient of the Pulitzer Prize. He is an acclaimed poet, gifted with powers of
keen observation and expression. Professor Levine is known for the high quality
of his research and teaching. His work has been influential in the understanding
of genetic processes in the growth of embryos, including transcriptional control
and gene activity in embryonic diversification.
24
E.
Committee on Rules and Elections
Professor Daniel Melia, chair of the Committee on Rules and Elections, presented
the results of the Division’s first electronic election. It went smoothly, with only a
few minor problems. Voter response was comparable to previous paper ballot
elections: 342 total (340 electronic; 2 paper). There were no invalid ballots.
Senate members elected to Divisional Council:
James Hunt, Civil & Environmental Engineering
Anthony Long, Classics
Oliver O’Reilly, Mechanical Engineering
Senate members elected to the Committee on Committees of the Berkeley
Division:
Steven Justice, English
Nicholas Mills, Environmental Science, Policy, & Management
Kurt Organista, Social Welfare
Kristofer Pister, Electrical Engineering & Computer Science
F.
Committee on Teaching
Professor Kevis Goodman, co-chair of the Committee on Teaching (COT),
announced the recipients of the Distinguished Teaching Award: Professor Nezar
AlSayyad (Architecture, and City and Regional Planning); Professor Karl Ashoka
Britto (French and Comparative Literature); Professor Stefano DellaVigna
(Economics); and Professor Kaja Silverman (Rhetoric). COT also conferred the
2008 Educational Initiatives Award upon the Biology Scholars Program and the
Museum of Vertebrate Zoology Undergraduate Apprenticeship Program. All
these recipients were celebrated at a ceremony held the previous evening.
Besides making the selections for these two awards, this past year the committee
also conducted workshops for new faculty, reviewed policy, continued support
of the Presidential Chair Fellows Program, and contributed to creation of the
Lecturer Teaching Fellows Program in partnership with the Office of the Vice
Provost for Undergraduate Education.
G.
Committee on Faculty Awards (Enclosure 2)
Chair Drummond announced the recipients of the Berkeley Faculty Service
Award, commending Professor Meg Conkey (Anthropology) and Professor
Herbert Strauss (Chemistry) for their dedicated service to the University, and
their contributions to shared governance. Details about their accomplishments
are included in the committee’s annual report enclosure.
VII.
Petitions of Students (None)
VIII.
Unfinished Business (None)
XI.
University and Faculty Welfare
A.
Management of the national laboratories at Los Alamos, Livermore and
Berkeley by the University of California, the U.S. Department of Energy, and
Bechtel Corporation
A panel was introduced, with their affiliation and area of expertise:
o Steven Beckwith, Vice President for Research and Graduate Studies
(restructuring of the Office of the President [UCOP], and UC’s role in the
Board of Governors);
25
o
o
o
Michael T. Brown, chair of the Academic Senate (positions of Academic
Assembly and the Academic Council Special Committee on Lab Issues
[ACSCOLI]);
Mary Croughan, vice chair of the Academic Senate (ACSCOLI issues);
William Eklund, UC Office of the General Counsel (laboratory contracts and
relationships).
Prior to 2006, UC was the sole manager of the three national labs; the national lab
at Berkeley is now the only one still managed solely by UC. At Los Alamos and
Livermore, UC is partnered with private industry under limited liability
contracts. Of concern to many is the possibility that if the federal government
were to decide to increase weapons production for national security reasons, Los
Alamos would be the most likely production site, and UC no longer has the
option of an exit clause in the lab contract. (The Livermore lab is not involved in
nuclear pit production and would not be affected.) The current contracts and
other information are available online.
A 2003 survey of Academic Senate members showed that, of the one-third of UC
faculty who responded, a majority strongly favored continuing UC’s relationship
with the national laboratories and improving the quality of science and
technology research, with Senate oversight. A majority of the respondents felt
UC should retain responsibility for management of lab safety and security, and
were opposed to UC involvement in weapons production. ACSCOLI was created
to provide Senate oversight on the contract competitions for Livermore and Los
Alamos; the contracts were awarded in 2007. The Academic Assembly later
approved a resolution expressing deep concern over the lab contracts, after it
was found that UC was no longer protected by an exit clause.
During a Question and Answer period at the division meeting, Senate members
reiterated those concerns, noting a lack of consensus among UC leadership. Vice
President Beckwith suggested that keeping UC personnel deeply involved with
laboratory management and building strong intellectual ties between the entities
would help to protect UC’s interests.
X.
New Business (None)
The meeting was adjourned at 5:10 p.m.
Daniel Melia
Secretary (Spring 2008), Berkeley Division
Handout A:
Academic Assembly resolution on limiting UC’s role in manufacturing nuclear weapons.
26
ENCLOSURE 3
Report
of the
Senate Task Force on University-Industry Partnerships
October 20, 2008
Christopher Kutz, Co-Chair, Chair (2006-08) – Committee on Academic Freedom
(ACFR)
J. Miguel Villas-Boas, Co-Chair, Chair (2006-08) – Committee on Research (COR)
John Ellwood, Chair – Committee on Academic Planning and Resource Allocation
(CAPRA)
Carla Hesse, Chair (2007-08) – Committee on Budget and Interdepartmental Relations
(BIR)
Calvin Moore, Chair (2003-07) – CAPRA
Jasper Rine, Professor, Genetics and Developmental Biology
Carl Shapiro, Professor, Business Administration and Economics
Costas Spanos, Associate Dean for Research, College of Engineering
Senate Staff: Andrea Green Rush
I.
Introduction
Following the role played by the Berkeley Division of the Academic Senate in
advising in the negotiations over the Energy Biosciences Institute (EBI), the Divisional
Council (DIVCO) appointed a task force to produce a report for the Berkeley Division’s
consideration to offer principles governing future major University-industry
partnerships. The composition of this task force included the five members of the ad
hoc advisory committee to the EBI contract negotiations, plus other members of the
Senate with expertise in relevant areas, as nominated by the Committee on Committees.
We were charged with considering the following issues: the net benefits to the
University from collaborations; when and how the Senate ought to be notified and
subject to review certain collaborations, including guidance about the respective roles of
administration and the Senate in negotiating and reviewing proposals; the application
of principles of academic freedom to these collaborations; the role of established
practices in academic personnel actions and FTE allocations; potential conflicts of
interest; intellectual property policy matters; and any other matters that the Task Force
found appropriate. We were also asked to consider issues related to partnerships with
the federal government and foreign governments.
We were asked to take into account the following documents: Cornell University’s
Faculty Statement of Principles & Best Practices Concerning Strategic Corporate Alliances and
the External Review of the Collaborative Research Agreement between Novartis Agricultural
Discovery Institute, Inc. and The Regents of the University of California, conducted by the
27
Institute for Food and Agricultural Standards, Michigan State University. We also
reviewed the report of the Senate Ad Hoc Committee on the CNR/Novartis Proposal
(1998); the Administrative Review of the Novartis Agreement (2002); the responses to
this review by the Committee on Academic Freedom, the Committee on Academic
Planning and Resource Allocation, the Committee on Research, and the Graduate
Council, and the document “In the Public Interest: Nine Points to Consider in Licensing
University Technology,” of which the University of California is a signatory.
Furthermore, over a series of meetings we invited several guests with a range of
relevant perspectives and information on issues related to University-industry
partnerships. We met with Vice Chancellor for Research Beth Burnside, Assistant Vice
Chancellor for Intellectual Property and Industry Research Alliances Carol Mimura;
and in their individual capacities Professors David Hollinger (History, former chair of
BIR), Todd LaPorte (Political Science, former chair of COR during the Novartis review),
David Mowery (Business Administration, expert in University-industry technology
transfer), Robert Merges (Law, expert in intellectual property), David Patterson
(Electrical Engineering and Computer Science, major participant in industry
collaborations), and Anne Wagner (History of Art, a participant in EBI debates). These
meetings garnered further information on organizational issues in University-industry
partnerships, on the value and risks of University-industry partnerships, on issues
related to intellectual property of research produced within the University and on
technology transfer, on the importance of due process within the University on the
establishment of such partnerships, and on the perspectives of researchers involved in
University-industry partnerships.
We have written this report trying to address a wide range of possible issues that
may arise in future University-industry partnerships. However, the proposals
presented in this report should be interpreted with flexibility as there may be other
unforeseen issues in future proposals which we may have failed to consider. The
relative importance of these University-industry partnerships will also differ across
fields, and the University should implement these proposals with respect for the
different acceptable practices within particular fields and disciplines.
Finally, we add some notes on terminology. First, we use the terms “collaboration”
and “partnership” interchangeably. We use these terms to distinguish the research
endeavors at issue from both individual (or group) investigator-based sponsored
research, on the one hand, and from turnkey or gift-sponsored research. While not all
the collaborations at issue are, in legal terms, partnerships, all will involve continued
involvement in research and often governance by both University and sponsor
personnel, usually by establishing a new research entity, such as the EBI, or the Intel
Research Laboratory. Second, as we mentioned above, we took as our charge
establishing principles to govern collaborations with governmental entities, both
domestic and foreign, and foundations, as well as with for-profit companies. While
some of the intellectual property issues we discuss are specific to corporate sponsors,
other issues generalize appropriately. As a result, our use of the term “sponsor” will
generally range across all sorts of entities. Third, we restrict our attention generally to
what we call “large-scale collaborations,” where the scale is a function of multiple
possible factors, including funding amounts, effects on campus space and resources,
28
duration, and academic personnel issues. (For the purposes of this report, “Academic
Senate” refers to the Berkeley Division, unless otherwise noted.)
Here is a summary of the report. Section II discusses the general benefits and risks
of large-scale sponsored research activity. Section III discusses the triggers, or
indicators, found in proposals for collaborations that, in our view, merit at least Senate
notification and potential review, and the form of that review. In this section we also
discuss some substantive principles that we feel should inform the Senate review, and
structure the design of the new entity. In Section IV, we cover ethical considerations
affecting possible collaborations, as well as governance and reporting structures
responsive to these concerns. Section V discusses principles for the governance
structure of a University-industry partnership, both internal and in its relation to the
Senate. Section VI covers academic personnel issues, and Section VII discusses
principles for grant-making processes. Issues of financial return to the campus are
presented in Section VIII, and Section IX discusses intellectual property matters. Section
X covers academic freedom and proprietary space concerns, and conflict of interest and
conflict of commitment issues are discussed in Section XI. Finally, Section XII addresses
the complementary question of sponsored projects of such minimal institutional impact
that they should be afforded expedited approval by the Vice Chancellor for Research
(VCR) office. While this last item was not in our formal charge, concerns about overscrutiny of small projects presented themselves naturally during our inquiry, and this
report is an appropriate place to address them. Section XIII concludes.
II.
The Value and Risks of University-Industry Partnerships
In the context of UC Berkeley, the last few years have seen a stagnation of state
funding and changes in the character of federal research support. These changes have
made it increasingly important for the University to seek out new sources for research
funding. While industry funding has always played a significant role in Berkeley’s
research mission, in the years ahead, we anticipate that Berkeley will look more towards
industrial partners for funding in the face of changing federal funding.1 This may
especially be true for financing large, infrastructure-heavy research areas in the
biosciences and engineering, where industry also seeks to build out its in-house
research capacity. Indeed, it is possible that hybrid university-industry collaborations
may replace some of that in-house research.
As a general principle, we have come to conclude that industrial research funding
should be treated on par with funding coming from governmental or nonprofit entities,
all other things equal. In other words, the attractiveness of accepting research funding
should be evaluated based on the merit of the research being funded and the various
terms and conditions attached to that funding, not based on the category (industry,
government, nonprofit) of the entity providing the funding. While, in principle,
publicly-funded research might be thought to reflect a greater convergence of interests
between the University and the sponsor, with the public good as the aim on both sides,
public funding is decided by individuals in public institutions which may deviate at
times from the public good objectives, and industry funding may lead in specific cases
1
The external review of the Novartis agreement contains an extensive history of industry supported
research at Berkeley.
29
to projects that are important to achieve the public good. We learned during our
investigation that in many cases there are more “strings” attached to government
funding than industry funding, rendering false any presumption that industrysponsored research is more restrictive.
Industrial collaborations bring one large and obvious benefit to Berkeley
researchers, including faculty, students, and post doctoral fellows: they provide
resources, in some cases very substantial resources, to conduct research. They also add
to the diversity of sources of funds for research conducted at Berkeley. In this section,
we discuss additional benefits, and the risks associated with industrial collaborations.
Enhanced Impact of Research
Working with industry can enhance the impact and importance of research
conducted at Berkeley. In many fields, especially engineering, industrial partners have
information about important real world problems that may be quite useful for the
research agenda of Berkeley researchers. While our faculty may be very well placed to
identify research questions that are intellectually interesting and challenging, we can
benefit from additional input regarding which problems may be more important in the
real world for greater research impact. This is especially true if research is funded
simultaneously by a number of companies that occupy and compete within the same
market segment. In those situations, frequently encountered in research centers,
research tends to gravitate towards pre-competitive subjects, ensuring that valuable
university effort is not narrowly focused on short-term results.
In some cases, industry also pushes the state of the art, making it especially
important for Berkeley researchers to be aware of what industry has accomplished and
what they are currently trying to achieve, so our research efforts can complement rather
than duplicate those of industry. Although not central to the university objectives of
basic research, collaborations can also help the public good by facilitating and
accelerating technology transfer if the research results prove valuable in practice, and
have immediate practical impact. In this context we recognize that while impact can be
measured in many forms (such as citations), successful technology transfer of research
ideas is one valid measure of research relevance to society.
Other Benefits
Industrial partners can provide access to valuable data. They also can provide a
reality check on any assumptions made by researchers. Working with industrial
partners can help students build valuable professional skills.
While the academic research environment can be quite unstructured, encouraging
creativity, working with industry can provide additional structure that encourages
students to make clear presentations to varied audiences, work in teams, and be subject
to disciplined design reviews. These experiences can be very valuable to students,
regardless of their future career choices. Industrial participants sometimes help advise
students and teach at Berkeley, therefore reaching wider academic audiences.
30
Developing working relationships with industrial partners can greatly facilitate job
placement for students. These relationships can be especially valuable in providing
attractive jobs for all students when they graduate, not just the “star” students who
achieve greater visibility through conferences and publications.
Risks Associated with Industrial Funding
Industrial sponsors are often motivated in large part by their own institutional goal
of earning profits for their shareholders. Such profit motives may or may not line up
well with the University’s broader public-interest mission. A generic danger in largescale industrial collaborations is that scarce resources at Berkeley, especially faculty
time and effort, will be diverted towards projects that are of greater interest to an
industrial partner than to the public at large. The financial stakes grounding the
collaboration also make possible financial conflicts of interest for academic participants.
While we recognize and acknowledge this danger, we also believe it can easily be
overstated, even when the research is funded exclusively by a single industrial sponsor.
In a great many cases, the research projects of interest to industrial partners will also
generate substantial benefits to the University and the public, especially given our
standing rules insuring the right of publication. Our policies regarding intellectual
property rights (see below) also work to insure that the University and the public
benefit from research sponsored by industry, even in those cases where the industrial
partner ultimately obtains an exclusive license to some of the patents resulting from
that research. And our system of evaluating faculty performance gives faculty
incentives to conduct research that will advance the state of knowledge, not simply
serve the narrow interests of a corporate sponsor.
Furthermore, the danger that scarce faculty and student researcher time will be
diverted to projects of interest to a well-heeled sponsor is hardly unique to industrial
partners. The same danger applies to any large source of funding. For example, the
areas of interest to the Federal funding agencies shift over time, pulling researchers into
the areas receiving more funding. These shifts are part of the research environment in
which we live. We tend to accept these shifts as reflecting the public interest (although
this may not be always the case) especially if they are based on a peer review process
that is similar to the one we use to evaluate our own faculty. The primary difference
with industrial funding is that decisions regarding which areas to fund are made by
private, for-profit companies. We simply caution against a knee-jerk response that
industrial funding is inherently more suspect, in terms of the merit of the projects being
funded, than other sources of funding. The research agenda associated with a largescale project triggering Senate review should be evaluated on its own merits, not based
on the category of the entity providing funding. University-industry partnerships could
also affect the relative allocations of campus resources across fields. The proposals in
this report and existing resource allocation mechanisms on the campus (please see, for
example, Section VI below for academic personnel issues) should guarantee that
Berkeley can pursue these collaborations consonant with our distinctive values,
excellence, and mission.
Apart from the general concern about having research at Berkeley follow corporate
priorities rather than priorities based on academic merit or the public interest, there are
31
a number of other considerations that come into play in evaluating the attractiveness of
industrial funding. Generally, these are considerations that may affect the willingness
of researchers to enter into an agreement with a corporate sponsor, but that do not rise
to the level that would require Senate review: (1) In some cases industrial partners are
only willing to commit to short-term funding, so funding can be withdrawn with little
warning; this is unlikely to be a concern for the large, longer-term collaborations of
interest to us here. (2) Researchers may need to assemble support from multiple
companies, and this can be time-consuming. (3) Some companies require significant
amounts of time and effort by researchers and support personnel to reach an agreement
and to maintain relationships. (4) Time and effort may be needed to negotiate the
treatment of intellectual property associated with the research project. (5) Researchers
may find it difficult to say “no” when the sponsor asks for a favor, such as serving on a
technology advisory board or giving a talk; however, these activities can, in some cases,
be mutually beneficial and help strengthen the relationship between the company and
the campus.
II.
Triggers Meriting Special Senate Notification
Here we set out the characteristics of a proposed research agreement between the
campus and an extramural sponsor (be it a corporation, a governmental agency, or a
foundation) that should prompt the Vice Chancellor for Research to notify the Senate.
We propose that the Senate would then use the process described below to determine
whether it wishes to review and comment on the proposed agreement. Because we
assume that many proposals technically meeting the triggering criteria will not, in fact,
require Senate review, we have designed the notification criteria as broader than the
criteria to be used by the Senate in determining whether to conduct a review and in
reaching conclusions in that review. This process of notification and review is intended
to be fairly rare, and it would not be expected that more than a few proposals each year
would meet the criteria for notification to the Senate, much less merit Senate review.
Because most such proposed research agreements are on a very tight time line, the
Senate needs to have in place a fast, responsive process.
We emphasize as a preliminary that any individual investigator project grant,
contract, or research gift would be excluded from Senate review, as would proposals
consisting of a small number of investigators conjoining project proposals together to
approach a sponsor. In addition, any training grant which would provide broad
support for graduate fellowships, GSRs, and/or postdoctoral fellowships in a unit
would be excluded.
The research agreements typically falling within the scope of possible review are
those that involve creation of a Center or Institute – an entity that would function in
ways similar to an Organized Research Unit (ORU). Such an entity normally has a
governance structure consisting of advisory/steering/governance committee(s), and a
director – structures and roles missing in individual investigator grants or training
grants. In many cases the new entity would issue requests for proposals (RFPs) from
faculty members and would award grants through competitive peer review processes.
We note in passing that formal creation of an ORU already requires consultation with
the Academic Senate.
32
However, this description does not exhaust the types of research subject to Senate
review. We can imagine other models, such as a gift or grant to a department that
would provide funding for a new subarea of research on a scale that would influence
the overall character and research direction of the department, but which might not
have a formal governance structure that would itself indicate Senate review. Senate
review (perhaps limited to ordinary review by BIR) of such a gift or grant would also be
indicated if it would entail allocation or reallocation of new FTEs into the subject-area
designated by the gift or grant, especially if matching funds by the University are
required.
While, as we indicate, the bases for Senate consultation are inherently broad, we
here attempt to specify particular triggering criteria, so that the VCR has reasonably
clear guidance when to notify the Senate concerning a collaboration proposal. The
presence of any one of the following six characteristics should lead to notification.
However, we emphasize that these are meant more as indicators than bright line rules.
While the presence of just one of the characteristics below may be sufficient to merit
notification, in general it will take the presence of many of the factors to lead to a
review. In practice, we believe it will be clear to both the VCR and the Senate whether
Senate review is appropriate, keeping in mind the profound institutional commitments
of both to academic freedom and innovation.
The broad properties for notification or review are as follows:
Scope and level of funding: Senate notification and possible review will be
appropriate when:
• The agreement envisages a scope and level of funding that could
significantly influence the research agenda of an entire department
or of a general interdisciplinary area.
• For centers covering a broad range of disciplines, which in general
enjoy a substantial amount of extramural research funding, when
dollar expenditures per year, including indirect costs, but
excluding amounts subcontracted out to other institutions, exceed
1% of all annual extramural campus research funding. Currently,
1% is a little over $5 million per annum. We give this minimum
dollar amount as a percentage of total annual campus research
support funding so that there is no need to constantly adjust them
in the future.
Note that if the center is located within a single department or is in a
department or interdisciplinary area in which extramural funding is less
significant, then lower levels of annual funding, perhaps as little as 1/5th or
1/10th the amount above, could trigger Senate notification and potential review.
(In small departments, the triggering fraction would be correspondingly larger.)
In short, the level of funding that would trigger notification and Senate review is
context-dependent, in relation to the structural effects of such a grant on the
portfolio of research in a department.
Governance and partnership: In typical individual grants or contracts, funds
typically flow from the sponsor to the campus investigator; in return, annual or
33
periodic reports and/or a final report on research results are expected, as well as
other deliverables. Such grants, to individuals or groups of investigators, do not
warrant review. By contrast, Senate notification and potential review are
appropriate if the sponsor and campus conceive the proposed center as a
partnership, which in addition to reports and deliverables, involves the campus
and the sponsor leveling a joint, institutional identity. If, moreover, the sponsor
wishes to participate in governance of the center through membership on its
steering or governing committees, the need for Senate review becomes even
more compelling.
Institutional resource commitment: Senate notification and possible review are
warranted if the proposed center requires major allocation or reallocation of
space or construction of new space, or if significant campus matching funds or
cost-sharing are involved. If there is a commitment to the sponsor that employees
of the sponsor may occupy university space on a rental basis (proprietary space),
Senate notification is required and Senate review is more likely.
Commitments of FTE: If there is a commitment to the sponsor of the proposed
research agreement, gift, or partnership to allocate additional campus faculty
FTE for new faculty hires in the area of the partnership, notification is required
and Senate review is probably appropriate. Consultation with the Senate
Committee on Budget and Interdepartmental Relations (BIR) is absolutely
required.
Intellectual property and academic freedom: If there are very unusual terms –
differing substantially from the range of normal terms requested and approved
by sponsors in regard to intellectual property – or if there any terms that would
potentially restrict the academic freedom of campus participants, notification and
Senate review are required. For example, proposals regarding blanket rights to
intellectual property within a department, inclusion of background intellectual
property by non-participants, or unusual forms of prepublication review, would
all merit notification and potential review.
Ethical considerations: Senate notification, and possible review, are appropriate
when there is a significant risk that the sponsor is currently engaging or will
engage in serious and systematic behavior of the following types: criminal
conduct, human rights violations (including illegal discrimination), or large-scale
environmental despoliation, and when there is a high level of institutional
commitment by Berkeley, for example creation of a new research entity. This
criterion does not apply to gifts or grants received by Berkeley researchers
without such institutional commitment. (This point is discussed more fully in
section IV, below.)
We add that if there is a planned mutual commitment between the campus and
sponsor meeting some of the criteria above, and in which the planned duration is
relatively extended – say five years in some cases, and certainly ten years or more – the
need for Senate review is heightened.
34
We also understand that the VCR or Chancellor can bring any proposed research
agreement to the Senate for review and comment if there is concern about any aspect of
it, even if none of the triggers for notification and review as outlined above are met.
Process for Notification and Review
Once notification is triggered, the VCR should contact the Division Chair, with time
permitting for meaningful consultation and advice. We seek to avoid presentation to
the Senate of a fait accompli. In turn, the Division Chair will consult speedily with the
chairs of COR, CAPRA, and ACFR, to determine if a Senate review is needed. If the
decision is to initiate a review, this group of three committee chairs will undertake it,
with possible augmentation by up to two additional members as determined by the
Division Chair. Additional members might be other Senate committee chairs (e.g. the
Chair of BIR if there are issues of faculty appointments, or the chair of the Graduate
Council if there are issues concerning graduate education) or other faculty members
with relevant expertise.
This group should be kept small so that it can respond nimbly, as the time frame for
preparation and submission in many (most) of these partnerships is quite compressed.
This small working group should keep their respective committees, the Division Chair,
and DIVCO, briefed to the extent possible. This working group should have an
advisory role in negotiations with the sponsor as to terms and conditions of the
agreement. We recognize that confidentiality constraints may limit the extent to which
the working group can apprise the Senate and DIVCO of negotiations, and the Senate
leadership should be willing to agree that the three to five members of the working
group will need to advise the VCR in confidence during the negotiations. However,
upon completion of the negotiations and finalization of the contract or agreement (or
earlier if there is other public disclosure of the agreement), the group should be relieved
of their pledge of confidentiality and then make an open report to DIVCO.
We note, finally, that the envisioned process for review is not a vehicle for a collegial
veto of sponsored projects. Decisions whether to go forward with a collaboration are
ultimately the decision of the Berkeley Chancellor. The Senate’s consultative duties,
rather, entail both advice to the Chancellor, and constructive work rendering proposed
collaborations consistent with our principles and practices. We emphasize that this
model of consultation appeared to work extremely well in the EBI negotiations.
III.
Ethical Considerations
The relevance of ethical considerations is a product of two roughly opposing
principles. On the one hand, UCB sponsors a culture of broad academic freedom for
researchers, and has consistently insisted upon the principle that researchers are free to
accept funding from any source, consistent with the law. Most recently this point has
been reaffirmed in relation to tobacco-based funding, where the University of California
as a whole has rejected attempts to limit researcher access to specific funding sources.
On the other hand, the collaborations at issue here are not individual research
projects (or projects by small groups of individual researchers), but the creation of
lasting Berkeley entities with multiple participants and a University identity. Both the
35
institution as a whole, and members of the community, have a heightened stake in
questions of university participation in the possible ethical or legal wrongdoing of
industrial or governmental partners. Precisely because such collaborations affect the
shared institutional framework of all members of the community, serious ethical
concerns deserve a role in discussion. By contrast, where merely individual research
grants are at issue, concerns about a shared institutional identity are properly
subordinated to the autonomy of the researcher.
In substantive terms, and this goes without saying, the University should avoid any
collaboration that would render it an active participant in criminal conduct, human
rights violations, or environmental despoliation. The University must also not
participate in a collaboration that would require it to discriminate in violation of its
policies, for example in recruitment of its staff, faculty, or students, even if such
discrimination is demanded by the laws of a sponsor.
Beyond these points, where there is good reason to believe that the partner on its
own is engaging or will in the future engage in criminal or illegally discriminatory
conduct, we believe that this matter should be subject to serious consideration, with an
eye to adding forms of monitoring and the possibility of severing the collaboration
should such conduct occur (as was incorporated into the EBI agreement, for example).
We emphasize that such scrutiny is not expected to be fatal: we expect that most
proposals will be strengthened, rather than, barred, by application of these
considerations. For example, the collaboration with Saudi Arabia’s King Abdullah
University of Science and Technology (KAUST) project calls for Berkeley (among other
things) to design a curriculum and recommend recruitment of faculty into a national
environment characterized by discrimination on the basis of sex, religion, national
origin, and sexual orientation. Nonetheless, the Task Force recommended approval of
the collaboration, on the basis of assurances that the KAUST campus environment itself
would be nondiscriminatory, separated administratively from other parts of the
country, that all Berkeley personnel were eligible to benefit from the collaboration
(including any sole Israeli passport holders, who could not by law travel to Saudi), that
the University would vigorously monitor KAUST’s compliance with these
commitments, and that some funds were provided to give further incentives for
diversity in engineering at Berkeley. We hope the resulting collaboration reflects both
an important educational and ethical accomplishment by Berkeley.
We add two further notes on this point. First, the ethical risks to be considered are
present and future-based. Many potential collaborators have ethical or legal problems
in their history. If a potential collaborator has reformed its practices, and invites
participation into a project that itself presents no ethical or legal conflict, then there is no
ethical basis for the University to refrain from establishing a partnership with that
collaborator.
Second, the criterion of criminality must be applied judiciously. Many potential
collaborators, both industrial and governmental, have large and complex operations.
The reach of regulatory criminal law is increasingly broad, and often applied without
regard to serious fault or wrongdoing. The mere fact of a potential or actual criminal
conviction by a sponsor is not sufficient to cast a collaboration into doubt, without more
36
specific indications of its bearing on the collaboration, or the principles of the
University.
V.
Governance
It is evident that no single model of governance, both within the operations of the
entity and in relation to campus, will be appropriate for all large-scale collaborations.
The degree of engagement and oversight by the sponsor will vary, as will the tasks of
the collaborative entity. What we offer, instead, are some general principles that can
serve as baselines, or minima, for structuring governance. Our goals in offering the
following principles are to ensure flexibility and adaptability on the part of the entity,
transparency and accountability to the campus and the sponsor, and reflection of the
public mission values of the University.
The following principles presume a model structure consisting of an Executive
Board, composed predominantly of University faculty with expertise in the project’s
subject area, although not necessarily participating in the collaboration’s research
activities; and a Governing Board, drawn from both the University and the sponsor. On
this model, the Executive Board makes individual research-grant and operational
decisions for the entity, subject to overall review and approval by the Governing Board.
Of course, other governance models are possible, and may be more appropriate for
some collaborations.
Principles of Internal Governance
•
At the operational (item) level of decision-making, there should be a
preponderance of University personnel. The Director of the collaborative
entity should be a member of the Academic Senate.
•
Voting members of the Executive Board should not report directly to the
Executive Director, and should have grounds for regarding themselves as
independent from the Director’s direct influence. We recognize that, in
practice, this is unlikely to be an issue: most research participants maintain a
diverse portfolio of funded projects, and will have strongly independent
views regarding the research area.
•
If there is a Governing Board providing oversight for the partnership, equal
representation by the sponsor’s employees on that Board will be acceptable
provided that (a) line-item decisions are reserved for the Executive Board;
and (b) the Governing Board members from the University, taken as a group,
and from the Sponsor, taken as a group, can each veto proposed actions
before the Board.
Principles of External (in Relation to the University) Governance
•
The Director of the collaborative entity should be available to report annually,
in person, at the Divisional Council’s discretion, on the operations of the new
entity, with an eye to alerting the Senate to looming future issues. An annual
37
report on research funding and expenditures should also be made publicly
available.
VI.
•
Sponsor employees cannot have any role in personnel decisions concerning
faculty participants in the collaboration.
•
The entity should be subject to a five-year ORU-type review process,
including a review by Berkeley personnel external to the entity.
Academic Personnel
As in the recent cases of the creation of the Energy Biosciences Institute or the
KAUST collaboration, some collaborative partnerships between UC and private
industry and/or governmental institutions may entail the endowment or support (full
or partial, temporary or permanent) of new faculty FTE. Any proposed partnership or
collaboration that entails the creation or reallocation of FTE in designated subject areas
should require review by the Senate and full consultation with the Senate Committee on
Budget and Interdepartmental Relations (BIR).
The following general principles will guide such review:
•
Normal departmental search procedures (including restriction of search
committee membership to members of the Academic Senate) must apply
in all cases. The same established search procedures will apply,
regardless of whether the proposed positions will be fully or partially
funded by non-state revenues, as is currently the practice for non-state
funded FTE in campus units such as the Law School or Haas School of
Business.
•
As with all FTE allocations, search procedures and appointments must be
conducted through regular campus planning and academic review,
meeting all Equal Employment Opportunity Commission regulations and
the rules and regulations outlined in the Academic Personnel Manual.
Campus non-discrimination policies, to the extent that they exceed the
standard established by the Academic Personnel Manual, also apply.
•
All FTE allocations must be consonant with the general principle of “the
best interest of campus” and with long-range academic planning at the
departmental, divisional, and campus level. Faculty positions initiated
through, or reallocated to collaborations with either private industry or
governmental agencies must be handled through the normal campus
review and appointment procedures for on-cycle or off-cycle FTE
authorizations.
•
Requests for FTE authorization must be initiated and approved at the
departmental level before undergoing higher levels of campus review.
The research areas for these FTE must fit into the long range plans of the
departments that propose to assume responsibility for seeking to fill them.
38
•
VII.
Non-19900 funding of permanent FTE, whether for a fixed period of time
or permanently endowed, and whether partially or fully funded by nonstate sources, must be guaranteed for the full term of the initial agreement,
regardless of whether the collaboration between UC and the non-UC
partner is terminated prior to the initially contracted term of the
partnership or collaboration. Funding for any faculty position filled in
association with a collaborator should be guaranteed, regardless of
whether faculty members hired through the new search subsequently
terminate their relationship with the collaborative entity.
Grant-Making Processes
In some collaborations, the new entity may provide subsequent grants to proposals
by Berkeley researchers. Without trying to establish undue constraints, and within
reason, the processes for such grant-making should be transparent, with the criteria
codified and made public. Within the parameters of the new entity, relevant Berkeley
faculty should be able to compete for these sub-grants. In general, proposals should be
peer-reviewed, and the committee (if relevant) deciding which proposals are funded
should be composed in large majority by academics. As a matter of objective
evaluation, members of that committee should not be involved in the decision-making
regarding their own proposals. Proposals submitted and funded should also obviously
respect the University’s conflict of interest policies. Ideally, at least some participants in
the peer review process should not be participants in the collaboration itself, but should
be able to provide disinterested review.
If the partner has prior contracts restricting some lines of research within the general
scope of the collaboration from being funded (for instance because of confidential
agreements not to compete along specified research paths) and so must decline an
otherwise meritorious request, the grant-making committee should inform the
researcher of the basis for the decision not to fund the project, and should try to find
alternative funding for the proposal. Moreover, if the prospect of such restrictions in
funding can be foreseen at the time of the proposal for collaboration, the University
should try to minimize the scope or effect of restrictions, for instance by encouraging
the sponsor to attempt to renegotiate the restrictive agreements, or by finding
alternative mechanisms to fund such proposals.
VIII. Financial Returns to Campus
These collaborations may lead to direct financial returns to the campus – returns that
can provide greater resources for the basic research and teaching missions of the
university. Because future large-scale collaborations will be highly idiosyncratic, we
cannot provide an accurate estimate of the likely yields along these various dimensions.
Nonetheless, we offer projections based on the EBI collaboration as an illustration.
The flow of money from indirect cost recovery from the partnership: Large-scale
collaborations require a great deal of administrative and infrastructural support
from the university. Therefore, these collaborations should be subject to at least
the same overhead rate as with ordinary research grants (for government grants,
53%). In addition, in some cases the university should consider asking for a
39
higher overhead rate in order to be able to provide a broad direct benefit to all
the units on campus.
o
In EBI, the VCR’s office estimates annual indirect cost recovery to
Berkeley of $4.7-6.5M, or roughly 25% of the overall campus annual
funding of roughly $24M.
Salary savings from released time of faculty supported on the partnership: If the
university-industry partnership supports part of the salary of faculty members,
the part supported would be additional savings to the campus. Such support
would be subject to the points in Section VI. EBI provided 50% funding for six
FTE, and 100% funding for one FTE (the Director). This represents a savings to
campus of at least $600K annually.
Savings in start-up costs: If the University-industry partnership supports the startup costs of new faculty or researchers on campus, that support would constitute
additional savings to the campus. EBI provided star-up funds of $7M in direct
costs, and $3.5M in lab renovations – crucial for recruiting new faculty to
campus.
New research space: If the partnership supports building or renovating new
research space in the campus, the added space will be an additional return to the
campus after the partnership is over. In addition, if the new space allows
existing faculty to move lab space there, the freed space would be available for
other uses by the campus. EBI will fund a portion of the new HELIOS facility,
resulting in an additional 50K assignable square footage for campus.
Other monetary benefits for the University: Other potential returns to the university
are returns from licensing any generated intellectual property (subject to the
concerns discussed in Section IX) and space rental on campus by the partnership
if that occurs, at rates that represent the actual opportunity cost to the campus,
and expected to be clearly above local market rates (and subject to the concerns
discussed in Section X).
Finally, we note that the Chancellor’s Office should consider assigning some of
this financial return to allocations that would directly benefit the entire campus,
such as the temporary academic staff (TAS) budget or the Committee on
Research allocation.
IX.
Intellectual Property
General Observations
Before addressing the issue of guidelines for licensing and management of
intellectual property (IP) in large-scale University-industry partnerships which have
triggered Academic Senate review, some general comments on IP are in order.
40
From past experience, it has become clear that that there is no general template for
IP provisions that will work for every industrial research contract or partnership. The
provisions of each contract must be tailored to the particular circumstances, including
factors such as the general field of research covered, the expectations and needs
concerning intellectual property in this field, as well as many other factors. For
instance, in biotechnology or pharmaceuticals, exclusive royalty-bearing licenses are not
uncommon, whereas in information technology, it is common to employ non-exclusive
royalty free (NERF) licenses or simply to publish research results, thus placing them in
the public domain. Licensing contracts in these or other disciplines may range between
these poles. Moreover, in cases where research results leading to IP may have multiple
sponsors, the management of IP becomes even more complex, and flexibility is required
to deal with such situations.
Berkeley’s overall goals in managing IP are to maximize the impact and accessibility
of campus research and more broadly to serve the public interest by facilitating the
delivery to the market of goods and services of public benefit that are based on campus
discoveries. A related goal has been to help build relationships with industrial
partners, and to enhance the flow of funds to support research. In addition, the campus
has implemented a program of socially-responsible licensing whereby university
research results are made available to the developing world on affordable terms.
Metrics based on these broader social goals should be used to judge the success of the
technology transfer enterprise rather than metrics based more narrowly on number of
patents issued and/or the dollar return to the campus from licensing.
Unfortunately, the intellectual property policies of the University of California are
out-of-date. They are based on a conception of technology transfer that is not
supportive of the broader goals of public benefit described above. They are overly
rigid, with administration of these policies, including exceptions to policy, centralized
in the Office of the President (UCOP). As a result, in seeking to achieve campus goals
and to build partnerships that are effective in achieving these goals and meeting the
needs of our faculty, the Berkeley campus has been forced to request large numbers of
exceptions, with resulting delays and immense frustration to our faculty. The
University’s IP policies should be revised and updated to reflect current needs, and
authority to make exceptions as needed should be delegated to the campuses. We very
much hope that the current restructuring of the UCOP, with the goal of getting that
office out of the transactions business, will result in such changes.
We are encouraged to see that the University of California is a signatory of the
document entitled “In the Public Interest: Nine Points to Consider in Licensing
University Technology,” which was issued on March 6, 2007.2
We endorse this
document, which comports with many of our own conclusions. We urge that its
principles be followed in negotiating IP provisions of the large-scale partnerships
considered here. We attach a copy of this document as an Appendix to our report.
2
See http://autm.net/aboutTT/Points_to_Consider.pdf .
41
Specific Recommendations
Building on these general observations, we turn now to a discussion of appropriate
guidelines for IP management and contractual provisions in partnerships triggering
Senate review. While we focus on University-industry partnerships, we note in passing
that these principles might usefully be applied to any large-scale partnerships into
which the Berkeley campus enters, including those with nonprofit and government
entities. Such organizations have their own interests, requirements, and approaches to
IP, and we do not presume that large-scale partnerships with industry are inherently
more problematic than large-scale partnerships with other entities.
Dissemination of research findings: The public interest in the dissemination of
knowledge and technology produced in a public university, which is inherent in
the University’s public mission, should be recognized as a high priority.
Berkeley’s efforts to support socially-responsible technology transfer should be
strongly supported.
Flexibility of contracting:
The University’s mission of conducting and
disseminating research requires that a broad spectrum of IP management
strategies be available to the Berkeley campus, ranging from fixed royalty and
bonanza based exclusive licensing, to non-exclusive licensing, to open source
possibilities.
Decentralization to campuses: Unless and until the University of California adopts
more flexible overall intellectual property policies, far more authority to grant
exceptions that depart from these policies should be given to individual
campuses.
Use experience with smaller projects: Given the current divergence between official
UC policy and actual practice, and given the need for flexibility to meet the
IP and technology transfer goals of the campus, the IP contractual terms and IP
management strategies implemented in large-scale university-industry
partnerships should generally be in the range of existing practice for other
university-industry contracts into which Berkeley enters. Put differently, the
contracts used in large-scale partnerships should not in general be significant
outliers in terms of their IP provisions.
Protecting the rights of researchers: Large-scale agreements with industry should
protect the IP rights of faculty, students, postdoctoral scholars, and other
academic researchers.
In addition to these general provisions, we have a few more detailed
recommendations.
Limit the use of exclusive licenses: The use of exclusive licenses should be as limited
as possible, given our public mission. To attract industrial funding, Berkeley
may in some cases accede to an industrial partner’s demand that it be provided
with the first right to negotiate an exclusive royalty-bearing license for IP
resulting from research that it has fully funded. However, it should be
42
recognized that there is a tension between granting an exclusive license and our
overall mission to promote the dissemination of research results achieved at
Berkeley. Unless Berkeley is under an obligation to offer an exclusive license to
an industry partner, exclusive licenses should only be used when they are truly
necessary to ensure that the results of campus research come to the market for
public benefit. This state of affairs is only likely to arise if substantial additional
investments are needed to realize the public benefits and if the party making
those investments would not otherwise be able to appropriate enough of the
resulting benefits to warrant making the necessary investments. Non-exclusive
licenses are generally the preferred option, either on Reasonable and NonDiscriminatory (RAND) terms, or as NERF licenses. We urge that the University
of California update and modernize its current policies so that NERF licenses no
longer require exceptions to policy.
First right to negotiate and blanket provisions: A contract with an industrial sponsor
might provide the sponsor with a first right to negotiate for an exclusive license
or a NERF license to IP growing out of research that it fully funds. However, we
regard as unacceptable an IP provision in a contract that gave an industrial
sponsor the first right to negotiate for a license to some fraction of a unit’s IP
based on their general level of support for that unit.
The Novartis contract contained a provision that granted to Novartis the first
right to negotiate for licenses for a certain fraction of all the IP generated in the
relevant unit, whether or not the research was supported by Novartis. We do not
think that it was a wise decision by the campus to approve a blanket provision of
this breadth and scope, although we recognize that, in the event, there were no
adverse consequences. Much more narrowly and carefully tailored blanket
provisions granting access to IP not supported by the sponsor in future
University-industry contracts might be acceptable provided that rights of
researchers are protected and that no IP is offered up as part of such an
agreement without the approval of all of the (co)inventors. In addition, the
provisions should not impede the dissemination of research not funded by the
sponsor, and there should be a strong presumption that such licenses are nonexclusive.
As a general matter, it is in the University's interest and the interest of future
sponsors to find an equitable way of recognizing the competing interests
regarding which IP is covered by such blanket agreements. While a carte
blanche pre-agreement to a percentage of IP proportional to support is not
desirable, creative solutions to this tension should be encouraged.
Background IP: An industrial sponsor has a legitimate interest in having access to
already-developed IP forming the background of the research or methods to be
used in the collaboration.
Those already-existing IP rights, known as
Background IP, might otherwise block the development of the IP based on
research they have sponsored and to which they have access under the terms of
their contract.
We regard as entirely reasonable a sponsor’s request that
Berkeley incorporate contractual terms in an initial contract guaranteeing access
to Background IP on RAND terms. (This is another area where UC policy needs
43
to be updated.) However, we caution that the extent of Background IP to which
the provisions apply should be quite limited, e.g., through reference to specific
inventors and/or projects. The terms on which the Background IP will be
licensed will vary from one situation to another. We would not normally expect
Background IP to be available on NERF terms, unless the industrial sponsor
supported the research project leading to the Background IP or otherwise
compensated Berkeley for access to the Background IP.
X.
Academic Freedom
Sponsored research projects at the University, as opposed to work-for-hire or off-site
consulting, are, by definition, projects of academic value and so must reflect the
principles and interests of the University and its faculty. Protecting the freedom of
Berkeley researchers, and the autonomy of the institution, are hence prerequisites of
any acceptable collaboration. Academic freedom and both individual and institutional
autonomy are protected through two primary principles: freedom of publication and
discussion, and informed consent by the researchers as a basis of research participation
(and withdrawal from the collaboration without penalty). Any collaboration must
guarantee that these two principles are fully protected, and thus that the collaboration
serves the University’s fundamental interest in free inquiry and the production and
dissemination of knowledge in the public interest.
The Academic Council of the University of California as a whole has expressed its
grave concerns about restrictive “strings” imposed by sponsors on University research.3
The University’s Contracts and Grants Manual (CAGM), available at
http://www.ucop.edu/raohome/cgmanual/, contains a detailed discussion of
acceptable and unacceptable conditions that may be placed by sponsors on research
results. The Task Force believes that the current University policies, if followed, are
sufficient to protect the academic freedom of researchers and the autonomy of the
institution. Recent collaborations have, however, introduced a novel element: closed,
proprietary space in campus facilities, rented to the sponsor, in order to bring the
sponsor’s own employees into greater contact with University researchers while they
conduct their own confidential research. While this is not a matter of academic freedom
in a strict sense, in that no Berkeley faculty member’s freedom is impaired, such
arrangements do impinge on academic freedom values, notably the freedom to discuss
research and the autonomy and distinctive character of the university’s research
mission. Hence, we believe this new element calls for further consideration, below.
Freedom of Publication
Publication and dissemination of research results is the lifeblood of the University.
Hence current policy on sponsored projects and grants prohibits grants or sponsored
projects that “plac[e] an unreasonably long or unlimited delay period on the publication
or dissemination of the information resulting from the work under the project” (CAGM
1-400). In practice, this means that any form of prepublication review is strongly
3
See Academic Council Report, “Problematic Restrictive Clauses in Contracts, Grants, and Gifts for
Research,” Adopted by the Academic Council July 21, 2004, available at
http://www.universityofcalifornia.edu/senate/reports/researchstrings072304.pdf
44
disfavored, and that exceptions to this norm will only be made provided the right to
review is relatively brief and subject to clear limits on extension. With respect to the
EBI, for example, the sponsor, BP, has a right to delay publication limited to 30 days of
review if no patentable inventions are involved, and 90 days if patentable inventions are
involved (EBI Master Agreement, App. 2, Sec. 6). These are standard terms for
industry-sponsored research, and consistent with University policy. The Task Force
strongly believes that proposals for large-scale collaborations with more restrictive
review or publications limits should be declined if they cannot be renegotiated.
Concerns about the effects of restrictive publication clauses are especially significant
when, as here, the social and financial impact of the research may be very high.
Informed Consent as a Basis of Participation
Both individual academic freedom and institutional autonomy are protected by
ensuring that all decisions by faculty whether and how to participate in the
collaboration are made without prejudice, except insofar as a faculty member’s decision
to withdraw from a sponsored project will perforce mean forsaking the relevant grant
funding. In the case of collaboration that, as with the EBI, involves funding new faculty
positions, a candidate offered such a position should not be required to participate in
the collaboration as a condition of employment. Nor, moreover, should withdrawal
from the project, even by someone in an FTE funded by the project, result in any
impairment to the individual’s University status. (Whether the University or the
sponsor becomes responsible for funding a new FTE dedicated to the topic of the
sponsored project is a matter for negotiation.)
For example, if a sponsored project provided for five years of funding an FTE in
nano-engineering, presumably candidates attracted to the position would also be
attracted to participation in the sponsored project. But at the time the employment offer
is made, through ordinary academic personnel processes, the candidate must be free to
accept the offer without condition of participation in the sponsored project. That
decision should be made on the basis of full disclosure of the terms and obligations of
participating in the collaboration. And should the new faculty member decide, two
years into employment, to withdraw from the project, that person’s employment status
as UCB faculty would be unaffected, though the faculty member would presumably
need to solicit new research funds. In either case, how the University responds to an
individual’s decision not to participate – for example, by a search for a replacement
FTE, and how the new FTE, or start-up costs, would be funded – will be a matter
between the University and the sponsor. Again, this principle was well-protected by
the EBI agreement, and should be retained as a model.
Proprietary Space
While other recent sponsored projects have involved closed, “proprietary” space,
where disclosure of work and research results is prohibited, and faculty participation is
governed under consulting agreements, such spaces have been heretofore at off-campus
sites, albeit close to the University. The EBI agreement is unique, to our knowledge, in
establishing such space in a central, on-campus facility: initially 2,600 square feet in the
renovated Calvin Lab, and it will later involve comparable space in the new HELIOS
facility located above central campus.
45
The presence of such space generates funds, through market-rate rents, for Berkeley,
and, in some cases, the prospect of locating proprietary research space immediately
adjacent to the site of the open, academic research on the project can be highly attractive
to the sponsor, and a condition for providing substantial research support. We
anticipate that this aspect of the collaboration may become more common in the future,
as the University seeks additional sources of revenue to maintain its facilities, and as
sponsors are drawn by the attractions of an easier flow of intellectual capital.
Moreover, as a general matter, and as we emphasize above, the direct interactions
between industry and academic researchers are a valuable aspect of such collaborations.
The problem of academic freedom and confidentiality in such proprietary spaces is
complex. On the one hand, the intellectual environment of the University is defined in
terms of the free exchange of ideas and the dissemination of knowledge. This is the
basis of the University’s refusal to permit classified or otherwise restricted
governmental research in its academic facilities. While many academic labs formally or
informally limit access for reasons of security or academic peer competition, securing
access for purposes of preserving the sponsor’s intellectual property is something of an
exception to the University’s general commitment to transparency. On the other hand,
within technology-oriented academic disciplines, researchers are used to working with
proprietary information, in research collaborations or otherwise, with confidentiality
maintained through non-disclosure agreements (NDAs). Without such agreements,
researchers simply would not have access to necessary data. Thus, the University must
strive to maintain a research environment balanced between openness and the need for
confidentiality.
The Task Force is concerned that the provision of closed industrial research space on
campus to a sponsor may in some cases shift the balance too far, as well as failing to
value that space adequately for other university purposes.
First, the presence on campus of such closed space may blur the line between
research conducted in the public interest and research conducted for the sake of private
profit. Collaborations exist in order to exploit the substantial overlap between these
two interests; but the location of an industrial lab within the heart of an academic lab
may tend to shift the focus of the collaboration in the direction of the sponsor’s more
local interests. Relatedly, the existence of such space may degrade the transparency of
the university as a whole and the collaboration in particular, perhaps leading to further
apprehension within the rest of the University community about the value of such
collaborations. It also increases the risk that student researchers may inadvertently use
proprietary data that they cannot then fully exploit in publication.
Second, the provision of central campus space, even at local market-rate rents, may
substantially understate the value of that space to the University, in terms of the
opportunity cost to other campus research activities. Industrial research occurring in
that space makes it likely that other academic research must take place elsewhere,
perhaps in a more peripheral location. This means, in effect, that the benefits of
increased formal and informal collegial interaction provided by a central location are
shifted from university researchers to industrial researchers – advantages not captured
by rent based on rates for, say, downtown Berkeley or Emeryville.
46
To be clear, the risks posed by on-campus proprietary space are not only a function
of the location itself, but also of the nondisclosure restrictions that accompany the space.
Were the proprietary space itself open, although the site of industry-focused work
conducted by the sponsor’s employees, our concerns would be considerably mitigated,
although not entirely removed. (For example, the benefits of intellectual exchange
would more clearly spread reciprocally, to the open component participants as well.)
Thus, we recommend that future collaborations be negotiated with an eye to
reducing the restrictive effects of closed space.4 First, the extent of any confidentiality
restrictions accompanying the leased space should be minimized. Second, to the extent
a leased proprietary space requires confidentiality, we recommend segregating that
space to the extent feasible, rather than locating it at the heart of the open research
component. Third, as part of the general governance regime, we urge that the
collaboration’s director be prepared to report regularly about any possible beneficial or
adverse effects from the proprietary space. And fourth, agreements regarding
proprietary space located on central campus (or in other general research facilities)
should reflect the actual value of that space, reflecting not simply regional rental rates,
but the actual opportunity cost to campus and the special value to the sponsor.
XI.
Conflict of Interest (COI) and Conflict of Commitment
Faculty collaborations with industry or government present both rewarding
opportunities for intellectual and technological exchange, and possible conflicts of
financial interest or other forms of commitment. To acknowledge the possibility of
conflict is in no way to gainsay the great value of the collaboration, especially insofar as
sponsored research and consultation agreements may enhance the ability of faculty to
adjust research in the direction of maximal (and feasible) public benefit.
The possibilities of conflict between faculty members’ roles as members of the
University, and their possible roles as consultants, entrepreneurs, or stakeholders in the
external partners, may be especially acute in the large-scale collaborations at issue here.
This is so for a number of reasons. First, large scale collaborations, virtually by
definition, will generally concern research in areas of large potential social and financial
impact, where collateral financial opportunities for faculty researchers are also very
significant. Second, faculty members of the partnership will likely play a distinctive
role in the awarding of research grants, through review processes or through direct
participation in the governance board. And third, a chief virtue of such collaborations,
from sponsoring industries’ point of view, is the opportunity to recruit students and
faculty into employment with the partner as consultants or as staff, shifting the faculty’s
efforts from the University’s central objectives of research and teaching.
Again, all of these possibilities can be seen as advantages fully consistent with the
University’s mission, and the roles of faculty researchers, who are entitled, consistent
with University policies, to engage in these activities. But they also present risks to be
managed. The University has a number of standing policies concerning conflicts of
4
We note that some faculty members have stronger reservations about the permissibility of using
campus space for closed, proprietary research, regardless of the rental income.
47
interest and conflicts of commitment. (For an overview of these policies and frequently
asked questions, please see http://www.ucop.edu/services/conflictofintans.html#a1.)
For example, existing COI policy prohibits a faculty member who owns stock in
companies that may directly benefit from the collaboration’s research from “the making
of, or the participation in, University decisions in which financial conflicts of interest exist.”
(http://www.ucop.edu/ogc/coi/info.html). Related, Conflict of Commitment policy
governs faculty members’ ability to engage in compensated consulting work, whether
for
the
sponsor
or
another
entity.
This
policy
is
found
at
http://www.ucop.edu/acadadv/acadpers/apm/apm-025-07-01.pdf .
In our opinion, these policies should be sufficient to govern large-scale
collaborations without modification. We also recognize that it would be undesirable to
create further administrative obstacles to faculty members’ participation in these
collaborations. But because of the stakes involved, we believe the University must take
responsibility for apprising both faculty participants and sponsors of these policies, and
for monitoring and ensuring general compliance. In some situations the University
may also discourage consulting opportunities with the industry partner for the faculty
members involved. The University might also consider enhancing the transparency of
these highly visible projects – for example, posting on the entity’s website the applicable
COI policies and their application to participants’ financial interests. Proactive
transparency would do much to offset the “gotcha” effect of journalists’ investigations
into these collaborations, where participants’ private interests, even if consistent with
our policies and the relevant state and federal laws, are nonetheless treated as a scandal.
Nevertheless, we reaffirm that the engagement of our faculty with industry and
other private entities is within the mission of the University, and can enhance the ability
of the faculty to bring real-world relevance to bear on their University activities. We
believe the conflict of interest and commitment procedures that are already in place, if
vigilantly monitored, can provide an adequate combination of flexibility and safeguards
to protect the integrity of the Institution.
XII.
Parameters that Would Exclude Serious Administrative or Senate Review
In addition to the consideration of projects whose scope and substance might trigger
Academic Senate review, we have turned some attention to the reciprocal problem:
small-scale collaborations that are hindered or even blocked by the current
administrative (VCR and UCOP) review steps. While it is impossible to obtain statistics
on projects that failed to materialize due to actual or anticipated delays in review, our
committee has sufficient anecdotal experience with such examples as to be convinced of
the need to address this much more common end of the collaboration spectrum.
By way of background, there are opportunities for valuable collaborations between
industry sponsors and UC faculty, despite the low probability of a direct financial
return to the sponsor. Nonetheless, in many cases, VCR and UCOP review hinges on
the question whether possible IP yields are well-governed by the sponsorship
agreement. Academic labs frequently try to discover chemicals that have a particular
biological activity that the academic lab discovered that could be a starting place for the
development of a drug. The Novartis Institute in La Jolla will now offer free screening
for academics with drug targets, with the researcher entitled to claim IP protection for
48
the resulting compound. Offering a free screening makes commercial sense, for
Novartis has realized that the real value is in the derivatives of that compound with
desirable pharmacokinetic properties.
Moreover, in some cases the value to a company of a sponsored project with the
University is time-dependent: an agreement that takes six months to get signed would
often fall into another fiscal year in which funding allocated to such a project could be
diverted. Likewise, the value to an academic lab can also be time-limited in that the
personnel needed for the completion of such a project may graduate or otherwise move
on. Costs to the University and the sponsor for legal review can easily exceed the rest of
the project’s cost.
A lengthy University review process inevitably means that many potential
collaborations must be foregone. This is counterproductive, because successful
completion of such limited collaborations not only results in valuable knowledge, but
could eventually lead to larger sponsored projects that might have IP of value to the
University. The University must find a way to expedite review for these cases, offering
as much blanket approval authority to the VCR’s office as is consistent with the
University’s mission.
We propose, therefore, that when faculty members can assert in advance that the
project would have no likely IP, and when the total size of the project is less than some
threshold (stipulatively, $100K per year, including direct and indirect costs), that the
project not be subject to more than pro forma review by the VCR’s office, nor (a fortiori)
to review by the Senate.
The downside risk of this proposal – underprotected IP – is minimal. Given that
there will never be any IP if the faculty member carrying out a research project fails to
file a disclosure, the University already puts implicit faith in its faculty to judge whether
a discovery has potential IP value. Moreover, practice has shown that only a small
fraction of the discoveries that faculty judge to be of IP value are ever licensed. We
recognize that the contracts associated with such agreements will likely have the
boilerplate legal language inserted by industry counsel, but also that contesting such
language in matters of little probability of significance is not in the University’s
interests. The small risk associated in such cases will likely be more than offset by the
benefits of more research funding in the faculty member’s laboratory, and by the
prospects of more substantial agreements between the sponsor and faculty member that
would receive the review worthy of agreements with potential for IP.
XIII. Conclusion
Large-scale collaborations with industry, and with governmental entities or
foundations, present a large range of benefits and potential risks to campus, and are
likely to become an increasing source of research support in coming decades. The
principal risk presented by such collaborations involves displacement of the publicinterested research and teaching mission of the University. But this risk, we believe, can
be managed through transparent, faculty-led governance; with clear triggers for and
criteria guiding Senate review; our standard practices regarding academic personnel
decisions; academically rigorous grant-making processes; strict adherence to principles
49
of academic freedom and non-discrimination; and intellectual property models that
promote the University’s fundamental interest in the public dissemination of
knowledge. Given the existing rigorous and extensive practices of Senate involvement
in personnel and resource decisions, we are confident that these new sources of research
support can be pursued in a way consonant with Berkeley’s distinctive values,
excellence, and mission. Finally, in some cases, our suggestions require either the
devolving of review authority, or increased flexibility, from UCOP to campus, and we
urge the Chancellor to pursue this goal quickly, during this period of reorganization.
50
EMBARGOED UNTIL 3/6/07, 2 P.M. PACFIC TIME
In the Public Interest:
Nine Points to Consider in Licensing University Technology
Licensing approaches, even for comparable technologies, can vary considerably from case to case
and from institution to institution based on circumstances particular to each specific invention,
business opportunity, licensee and university. In spite of this uniqueness, universities share
certain core values that can and should be maintained to the fullest extent possible in all
technology transfer agreements.
In the summer of 2006, Stanford University’s then Dean of Research Arthur Bienenstock
convened a small meeting of research officers, licensing directors and a representative from the
Association of American Medical Colleges to brainstorm about important societal, policy,
legislative and other issues in university technology transfer. Representatives of the participating
institutions, listed below, have tried to capture in this document certain shared perspectives that
emerged from that meeting. Recognizing that each license is subject to unique influences that
render ‘cookie-cutter’ solutions insufficient, it is our aim in releasing this paper to encourage our
colleagues in the academic technology transfer profession to analyze each licensing opportunity
individually in a manner that reflects the business needs and values of their institution, but at the
same time, to the extent appropriate, also to bear in mind the concepts articulated herein when
crafting agreements with industry. We recognize that many of these points are already being
practiced. In the end, we hope to foster thoughtful approaches and encourage creative solutions
to complex problems that may arise when universities license technologies in the public interest
and for society’s benefit.
California Institute of Technology
Cornell University
Harvard University
Massachusetts Institute of Technology
Stanford University
University of California
University of Illinois, Chicago
University of Illinois, Urbana-Champaign
University of Washington
Wisconsin Alumni Research Foundation
Yale University
and
Association of American Medical Colleges (AAMC)
51
Point 1
Universities should reserve the right to practice licensed inventions and to allow other
non-profit and governmental organizations to do so
In the spirit of preserving the ability of all universities to perform research, ensuring that
researchers are able to publish the results of their research in dissertations and peer-reviewed
journals and that other scholars are able to verify published results without concern for patents,
universities should consider reserving rights in all fields of use, even if the invention is licensed
exclusively to a commercial entity, for themselves and other non-profit and governmental
organizations:
• to practice inventions and to use associated information and data for research and
educational purposes, including research sponsored by commercial entities; and
• to transfer tangible research materials (e.g., biological materials and chemical compounds)
and intangible materials (e.g., computer software, databases and know-how) to others in
the non-profit and governmental sectors.
Clear articulation of the scope of reserved rights is critical. Recent examples of such “retained
rights” clauses are included in the Appendix for reference.
Point 2
Exclusive licenses should be structured in a manner that encourages technology
development and use
When significant investment of time and resources in a technology are needed in order to achieve
its broad implementation, an exclusive license often is necessary and appropriate. However, it is
important that technology transfer offices be aware of the potential impact that the exclusive
license might have on further research, unanticipated uses, future commercialization efforts and
markets. Universities need to be mindful of the impact of granting overly broad exclusive rights
and should strive to grant just those rights necessary to encourage development of the
technology.
Special consideration should be given to the impact of an exclusive license on uses of a
technology that may not be appreciated at the time of initial licensing. A license grant that
encompasses all fields of use for the life of the licensed patent(s) may have negative
consequences if the subject technology is found to have unanticipated utility. This possibility is
particularly troublesome if the licensee is not able or willing to develop the technology in fields
outside of its core business. Universities are encouraged to use approaches that balance a
licensee’s legitimate commercial needs against the university’s goal (based on its educational and
charitable mission and the public interest) of ensuring broad practical application of the fruits of
its research programs. There are many alternatives to strict exclusive licensing, several of which
52
are described in the Appendix.
In situations where an exclusive license is warranted, it is important that licensees commit to
diligently develop the technology to protect against a licensee that is unable or unwilling to move
an innovation forward. In long-term exclusive licenses, diligent development should be welldefined and regularly monitored during the exclusive term of the agreement and should promote
the development and broad dissemination of the licensed technology. Ideally, objective, timelimited performance milestones are set, with termination or non-exclusivity (subject to limited,
but reasonable, cure provisions) as the penalty for breach of the diligence obligation. Examples of
diligence requirements (also known as performance milestones) are described in the Appendix.
Another means of ensuring diligent development, often used in conjunction with milestones, is to
require exclusive licensees to grant sublicenses to third parties to address unmet market or public
health needs (“mandatory sublicensing”) and/or to diligently commercialize new applications of
the licensed rights. Such a requirement could also be implemented through a reserved right of the
licensor to grant direct licenses within the scope of the exclusive grant to third parties based on
unmet need. In such situations, it is important to ensure that the parties have a common
understanding of what constitutes a new application or unmet need for the purpose of
implementing such a provision. An example of mandatory sublicensing language is provided in
the Appendix.
Absent the need for a significant investment - such as to optimize a technology for wide use broad, non-exclusive licensing of tools such as genomic and proteomic inventions can help
maximize the benefits derived from those technologies, in part by removing obstacles to further
innovation. Unlike most research tools or manufacturing methods, diagnostic tests often must go
through the regulatory approval process, and so may warrant exclusive licensing when the costs
of test development, approval or diffusion require substantial investment of capital.
Nevertheless, licensing of diagnostic tests based on broadly applicable genomics or proteomics
methods should strive to preserve sufficient flexibility to permit testing for multiple indications
(i.e., not an exclusive licensee’s single disease of interest) perhaps through multiple fieldrestricted or nonexclusive licenses. Exclusive licensing of a single gene for a diagnostic may be
counterproductive in a multi-gene pathology where only a panel of genes can yield an adequate
diagnosis, unless the licensee has access to the other genes of the panel. Such licenses can also be
limited in other ways. For example, a university might license a genomics method exclusively for
a company to optimize and sell licensed products for diagnostic use. The drafting of the exclusive
grant could make it clear that the license is exclusive for the sale, but not use, of such products; in
doing so, the university ensures that it is free to license non-exclusively to others the right (or
may simply not assert its rights) to use the patented technology, which they may do either using
products purchased from the exclusive licensee or those that they make in-house for their own
use.
In general, when no alternative testing strategy is available for a given indication, consideration
should be given to means of ensuring reasonable access for patients and shielding individual
53
healthcare providers from the risk of suit for patent infringement. As with any medical
technology, licenses should not hinder clinical research, professional education and training, use
by public health authorities, independent validation of test results or quality verification and/or
control.
Point 3
Strive to minimize the licensing of “future improvements”
Although licensees often seek guaranteed access to future improvements on licensed inventions,
the obligation of such future inventions may effectively enslave a faculty member’s research
program to the company, thereby exerting a chilling effect on their ability to receive corporate
and other research funding and to engage in productive collaborations with scientists employed
by companies other than the licensee – perhaps even to collaborate with other academic
scientists. In particular, if such future rights reach to inventions made elsewhere in the university,
researchers who did not benefit from the licensing of the original invention may have their
opportunities restricted as well, and may be disadvantaged economically relative to the original
inventors if the licensing office has pre-committed their inventions to a licensee.
For these reasons, exclusive licensees should not automatically receive rights to “improvement”
or “follow-on” inventions. Instead, as a matter of course, licensed rights should be limited to
existing patent applications and patents, and only to those claims in any continuing patent
applications that are (i) fully supported by information in an identified, existing patent
application or patent and (ii) entitled to the priority date of that application or patent.
In the rare case where a licensee is granted rights to improvement patents, it is critical to limit the
scope of the grant so that it does not impact uninvolved researchers and does not extend
indefinitely into the future. It is important to further restrict the grant of improvements to
inventions that are owned and controlled by the licensor institution - i.e., (i) not made by the
inventor at another institution, should they move on or (ii) co-owned with, or controlled by,
another party. One refinement to this strategy would be to limit the license to inventions that are
dominated by the original licensed patents, as these could not be meaningfully licensed to a third
party, at least within the first licensee’s exclusive field. As was discussed earlier, appropriate
field restrictions enable the licensing not only of the background technology, but also of
improvements, to third parties for use outside the initial licensee’s core business. In all cases, a
license to improvements should be subject to appropriate diligent development requirements.
It should be recognized, however, that not all “improvements” have commercial potential (for
example, they may not confer sufficient additional benefit over the existing technology to merit
the expense of the development of new or modified products), in which case a licensee might not
wish to develop them. In general, it may be best simply not to patent such improvements.
54
Point 4
Universities should anticipate and help to manage technology transfer related conflicts of
interest
Technology transfer offices should be particularly conscious and sensitive about their roles in the
identification, review and management of conflicts of interest, both at the investigator and
institutional levels. Licensing to a start-up founded by faculty, student or other university
inventors raises the potential for conflicts of interest; these conflicts should be properly reviewed
and managed by academic and administrative officers and committees outside of the technology
transfer office. A technology licensing professional ideally works in an open and collegial manner
with those directly responsible for oversight of conflicts of interest so as to ensure that potential
conflicts arising from licensing arrangements are reviewed and managed in a way that reflects well
on their university and its community. Ideally, the university has an administrative channel and
reporting point whereby potential conflicts can be non-punitively reported and discussed, and
through which consistent decisions are made in a timely manner.
Point 5
Ensure broad access to research tools
Consistent with the NIH Guidelines on Research Tools, principles set forth by various charitable
foundations that sponsor academic research programs and by the mission of the typical
university to advance scientific research, universities are expected to make research tools as
broadly available as possible. Such an approach is in keeping with the policies of numerous peerreviewed scientific journals, on which the scientific enterprise depends as much as it does on the
receipt of funding: in order to publish research results, scientists must agree to make unique
resources (e.g., novel antibodies, cell lines, animal models, chemical compounds) available to
others for verification of their published data and conclusions.
Through a blend of field-exclusive and non-exclusive licenses, research tools may be licensed
appropriately, depending on the resources needed to develop each particular invention, the
licensee’s needs and the public good. As suggested with respect to genomics and proteomics
method patents in Point 2 above, a university might license a research reagent, kit or device
exclusively to a company to optimize and sell licensed products and services for research,
diagnostic or other end uses. The drafting of such an exclusive grant should make clear that the
license is exclusive for the sale, but not use, of such products and services; in doing so, the
university ensures that it is free to license non-exclusively to others the right to use the patented
technology, which they may do either using products purchased from the exclusive licensee or
those that they make in-house for their own use.
Point 6
Enforcement action should be carefully considered
In considering enforcement of their intellectual property, it is important that universities be
55
mindful of their primary mission to use patents to promote technology development for the
benefit of society. All efforts should be made to reach a resolution that benefits both sides and
promotes the continuing expansion and adoption of new technologies. Litigation is seldom the
preferred option for resolving disputes.
However, after serious consideration, if a university still decides to initiate an infringement
lawsuit, it should be with a clear, mission-oriented rationale for doing so–one that can be clearly
articulated both to its internal constituencies and to the public. Ideally, the university’s decision
to litigate is based on factors that closely track the reasons for which universities obtain and
license patents in the first place, as set out elsewhere in this paper. Examples might include:
• Contractual or ethical obligation to protect the rights of existing licensees to enjoy the
benefits conferred by their licenses; and
• Blatant disregard on the part of the infringer for the university’s legitimate rights in
availing itself of patent protection, as evidenced by refusal on the part of the infringer to
negotiate with or otherwise entertain a reasonable offer of license terms.
Under all circumstances, it reflects poorly on universities to be involved in “nuisance suits.”
Exclusive licensees should be encouraged to approach patent enforcement in a manner that is
consistent with the philosophy described in this Point 6.
Point 7
Be mindful of export regulations
University technology transfer offices should have a heightened sensitivity about export laws and
regulations and how these bodies of law could affect university licensing practices. Licensing
“proprietary information” or “confidential information” can affect the “fundamental research
exclusion” (enunciated by the various export regulations) enjoyed by most university research, so
the use of appropriate language is particularly important. Diligence in ensuring that technology
license transactions comply with federal export control laws helps to safeguard the continued
ability of technology transfer offices to serve the public interest.
Point 8
Be mindful of the implications of working with patent aggregators
As is true of patents generally, the majority of university-owned patents are unlicensed. With
increasing frequency, university technology transfer offices are approached by parties who wish
to acquire rights in such ‘overstock’ in order to commercialize it through further licenses. These
patent aggregators typically work under one of two models: the ‘added value’ model and the socalled ‘patent troll’ model.
Under the added value model, the primary licensee assembles a portfolio of patents related to a
particular technology. In doing so, they are able to offer secondary licensees a complete package
56
that affords them freedom to operate under patents perhaps obtained from multiple sources. As
universities do not normally have the resources to identify and in-license relevant patents of
importance, they cannot offer others all of the rights that may control practice (and,
consequently, commercialization) of university inventions. By consolidating rights in patents
that cover foundational technologies and later improvements, patent aggregators serve an
important translational function in the successful development of new technologies and so exert a
positive force toward commercialization. For example, aggregation of patents by venture capital
groups regularly results in the establishment of corporate entities that focus on the development
of new technologies, including those that arise from university research programs. To ensure that
the potential benefits of patent aggregation actually are realized, however, license agreements,
both primary and secondary, should contain terms (for example, time-limited diligence
requirements) that are consistent with the university’s overarching goal of delivering useful
products to the public.
In contrast to patent aggregators who add value through technology-appropriate bundling of
intellectual property rights, there are also aggregators (the ‘patent trolls’) who acquire rights that
cut broadly across one or more technological fields with no real intention of commercializing the
technologies. In the extreme case, this kind of aggregator approaches companies with a large
bundle of patent rights with the expectation that they license the entire package on the theory
that any company that operates in the relevant field(s) must be infringing at least one of the
hundreds, or even thousands, of included patents. Daunted by the prospect of committing the
human and financial resources needed to perform due diligence sufficient to establish their
freedom to operate under each of the bundled patents, many companies in this situation will
conclude that they must pay for a license that they may not need. Unlike the original patent
owner, who has created the technology and so is reasonably entitled to some economic benefit in
recognition for its innovative contribution, the commercial licensee who advances the technology
prior to sublicensing, or the added value aggregator who helps overcome legal barriers to product
development, the kind of aggregator described in this paragraph typically extracts payments in
the absence of any enhancement to the licensed technology.1 Without delving more deeply into
the very real issues of patent misuse and bad-faith dealing by such aggregators, suffice it to say
that universities would better serve the public interest by ensuring appropriate use of their
technology by requiring their licensees to operate under a business model that encourages
commercialization and does not rely primarily on threats of infringement litigation to generate
revenue.
Point 9
Consider including provisions that address unmet needs, such as those of neglected
patient populations or geographic areas, giving particular attention to improved
therapeutics, diagnostics and agricultural technologies for the developing world
Universities have a social compact with society. As educational and research institutions, it is our
responsibility to generate and transmit knowledge, both to our students and the wider society.
We have a specific and central role in helping to advance knowledge in many fields and to manage
57
the deployment of resulting innovations for the public benefit. In no field is the importance of
doing so clearer than it is in medicine.
Around the world millions of people are suffering and dying from preventable or curable diseases.
The failure to prevent or treat disease has many causes. We have a responsibility to try to
alleviate it, including finding a way to share the fruits of what we learn globally, at sustainable
and affordable prices, for the benefit of the world’s poor. There is an increased awareness that
responsible licensing includes consideration of the needs of people in developing countries and
members of other underserved populations.
The details involved in any agreement provisions attempting to address this issue are complex
and will require expert planning and careful negotiation. The application will vary in different
contexts. The principle, however, is simple. Universities should strive to construct licensing
arrangements in ways that ensure that these underprivileged populations have low- or no-cost
access to adequate quantities of these medical innovations.
We recognize that licensing initiatives cannot solve the problem by themselves. Licensing
techniques alone, without significant added funding, can, at most, enhance access to medicines for
which there is demand in wealthier countries. Diseases that afflict only the global poor have long
suffered from lack of investment in research and development: the prospects of profit do not
exist to draw commercial development, and public funding for diseases suffered by those who
live far away from nations that can afford it is difficult to obtain and sustain. Through thoughtful
management and licensing of intellectual property, however, drugs, therapies, and agricultural
technologies developed at universities can at least help to alleviate suffering from disease or
hunger in historically marginalized population groups.
Summary
As often is the case, guidance as to implementation of practices that will advance the mission of
university technology transfer lags behind our collective awareness of both the needs that exist
and our obligations to foster an environment in which they can effectively be met. While we may
generally agree on the commonality of the above challenges, a multiplicity of approaches are
possible to address the dual goals of nurturing future research and using the innovations of
university research to provide the broadest possible benefit to the public. The participating
universities put forth these considerations in an aspirational sense and we encourage all of our
colleagues to stretch the boundaries of conventional technology transfer practice and share with
the greater technology transfer community the insights that they gain in doing so.
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APPENDIX
1. Commentary and examples of reserved or retained rights clauses and annotations as
discussed in Point 1
Example 1
“Institution retains the right, on behalf of itself and all other non-profit academic research
institutions, to practice the Licensed Patent and use Technology for any non-profit
purpose, including sponsored research and collaborations. Licensee agrees that,
notwithstanding any other provision of this Agreement, it has no right to enforce the
Licensed Patent against any such institution. Institution and any such other institution have
the right to publish any information included in the Technology or a Licensed Patent.”
Example 2
“Nothing in this Agreement will be deemed to limit the right of the Institution to publish
any and all technical data resulting from any research performed by the Institution
relating to the Invention and to make and use the Invention, Licensed Product, and
Licensed Services and to practice the Licensed Method and associated technology and
allow other educational and non-profit institutions to do so for educational and research
purposes.”
Example 3
“INSTITUTION reserves the rights, for itself and others, to
(i) make and use, solely for NON-COMMERCIAL RESEARCH PURPOSES, the subject
matter described and claimed in PATENT
RIGHTS and covered by PROPERTY RIGHTS; and
(ii) provide to others the BIOLOGICAL MATERIALS;
each solely for NON-COMMERCIAL RESEARCH PURPOSES.
As used herein, the term “NON-COMMERCIAL RESEARCH PURPOSES” means: Use of
PATENT RIGHTS for academic research or other not-for-profit or scholarly purposes
which are undertaken at a nonprofit or governmental institution that does not use
PATENT RIGHTS in the production or manufacture of products for sale or the
performance of services for a fee.”
Definitions of non-commercial uses should be considered in light of John M.J. Madey v. Duke
59
University. 307 F.3d 1351; 64 U.S.P.Q.2d (BNA) 1737 (Fed. Cir. 2002), cert. denied, 123 S. Ct.
2639; 156 L. Ed. 2d 656; 71 U.S.L.W. 3799. In Madey, the Court of Appeals of the Federal
Circuit narrowly interpreted the so-called “experimental use” exception to patent infringement,
such that use of patented technologies in the course of “business” activities of universities and
other not-for-profit organizations (which activities include education of students, making
application for grant funding and patenting of inventions) falls outside its scope. The decision
effectively limits permitted uses of unlicensed technology to aimless tinkering with patented
technologies, and sets the stage for infringement suits against non-commercial researchers.
To address the Madey issue in recent agreements, we have attempted to make clear that we are
reserving rights broader than those of a mere unlicensed party, and that activities held under
Madey to be the “business” activities of universities are within the scope of our reserved rights.
One current example reads:
“NON-COMMERCIAL RESEARCH PURPOSES” means: Use or practice of
LICENSED PATENT RIGHTS for academic research and other not-for-profit or
scholarly purposes which are undertaken at a nonprofit or governmental
institution that does not involve the production or manufacture of products for sale
or the performance of services for a fee. Without limiting the foregoing: (i)
“academic research and other not-for-profit or scholarly purposes” includes, in
non-limiting fashion, research that leads, or may lead, to patentable or
unpatentable inventions that may be licensed or otherwise transferred, either
directly or indirectly, to third parties; and (ii) neither (A) receipt of license
revenues on account of such inventions or receipt of reimbursements for the costs
of preparation and shipping of samples of materials provided to third parties as a
professional courtesy, in response to post-publication requests or otherwise in
accordance with academic custom nor (B) receipt of funding to cover the direct
and/or indirect costs of research, shall constitute sale of products or performance
of service for a fee.
Another case (Merck KGaA v. Integra Lifesciences I, Ltd.) clarifies the scope of a 1984 safeharbor that exempts some patent users from suit for patent infringement. That case, as reviewed
by the Supreme Court, protects infringing activities that are directed at the generation of data in
support of FDA filings; however, it affords academic researchers and institutions far less cover
than it does corporate infringers who actually are preparing FDA filings. Typically, academic
research is too remote from the regulatory filing process to fall within the safe harbor, for which
reason it remains crucial to reserve under license agreements all of the rights, for one’s own
institution and others, that will enable academic research to proceed unimpeded.
In drafting reservation of rights clauses and associated definitions, it is always important to keep
both the Madey and Merck decisions in mind.
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2. Commentary and examples of exclusive license terms that encourage technology
development as discussed in Point 2
While reservations of rights, above, enable continued innovation in non-profit and governmental
laboratories, the suggestions contained in this section are intended to ensure that licensed
inventions achieve broad commercialization.
2.1 Restrictions on fields of use, territory and term
• “Field-restricted” licenses grant rights that cover only specific products that a licensee is
able, and will undertake a firm commitment, to develop. This approach safeguards the
licensee’s investment in a technology, while still leaving it open for development by other
parties who do not compete with them (i.e., those who do not operate in the field of the
exclusive license grant).
• “Co-exclusive” licenses may be granted to a small, limited number of licensees. Such a
licensing structure has the advantage of permitting competitive optimization of a product
by spurring each member of the limited pool of licensees to attempt to achieve product
launch and market penetration first, or to develop a product that is simply better than
that which is marketed by the other licensees. This strategy, in which multiple licensees
carry out their research and development efforts in parallel, is particularly justified where
there is a significant unmet need for a given product (e.g., a critically-needed diagnostic
test or vaccine), as it minimizes the delay inherent in an exclusive license, where failure by
the licensee to appropriately develop a product necessitates license termination,
identification of a new licensee, negotiation of a new license and re-initiation of product
development efforts, perhaps from scratch.
• “Convertible exclusive” licenses permit the licensor to render an exclusive license either
co- or non-exclusive if a third party wishes to develop products not yet made available by
the exclusive licensee, usually after the initial licensee has had a time-limited opportunity
to bring to market the product in question.
• “Convertible nonexclusive” licenses where if additional expressions of interest are not
received within a defined period of time, then a non-exclusive license converts to
exclusivity, at least within a particular territory or field of use.
• “Term-limited” licenses, wherein the period of exclusivity is limited to the time
necessary to afford the licensee the competitive advantage conferred by early market
penetration and to permit them to make a reasonable profit on their investment in
research and development, after which the grant converts to that of a nonexclusive license
and the market opens up to other companies. Times may vary from a few years for a
technology that requires little optimization to much longer times for products requiring
61
many years of development and/or testing to obtain regulatory approval.
• Territorial limitations, where patent rights exist in multiple jurisdictions (e.g., the U.S. or
North America; Europe; Asia; major-market countries; or developing countries)
Hybrid license grants that combine features of those described above (e.g., a nonexclusive license
with a standstill for a given area of art, for a given period of time) expand the range of creative
possibilities for delineating an exclusive licensee’s rights.
2.2 Mandatory sublicensing
The concept is that when the University grants a broad exclusive license then we must have a
mechanism to ensure that the market demand is met. As future, perhaps unanticipated, new uses
arise we have an obligation to fill new market niches for the public good. This is especially
important when our inventions are developed using federal funds. If we become aware of a new
use that our licensee is not addressing, or if a third party approaches us for the (licensed) rights in
order to develop a new use or other unmet need then we ask our licensee to tell us within 90 days
if it will: (a) develop the new application on its own, or (b) grant a sublicense to the third party.
If the licensee chooses to develop the new application then it must diligently undertake the new
development (and report such progress to us).
Suggested language:
"If Institution or if a third party discovers and notifies the Institution that the
INVENTION is useful for an application covered by the LICENSED FIELD OF
USE but for which LICENSED PRODUCTS have not been developed or are not
currently under development by LICENSEE, then the Institution shall give written
notice to the LICENSEE, except for: 1) information that is subject to restrictions of
confidentiality with third parties, and 2) information which originates with
Institution personnel who do not assent to its disclosure to LICENSEE.
Within ninety (90) days following LICENSEE’s receipt of Institution’s notification
LICENSEE shall give Institution written notice stating whether LICENSEE elects to
develop LICENSED PRODUCTS for the application.
If LICENSEE elects to develop and commercialize the proposed LICENSED
PRODUCTS for the new application, LICENSEE shall submit a progress report
describing LICENSEE’s commercialization efforts in developing the new
application every six months to Institution pursuant to Article xx herein.”
2.3 Examples of diligence requirements/milestone clauses
Example 1
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“Milestones. Because the invention is not yet commercially viable as of the Effective Date,
Licensee will diligently develop, manufacture, and sell Licensed Product and will diligently
develop markets for Licensed Product. In addition, Licensee will meet the milestones
shown in Appendix X, and notify Institution in writing as each milestone is met.”
Example 2
A second approach, drawn from a distribution license covering a nucleic acid sequencing
reagent, reads:
X.1 Appendix A sets forth the development and commercialization plan under
which LICENSEE intends to develop and sell LICENSED PRODUCTs (the
“PLAN”). LICENSEE shall be entitled, from time to time, to make such
adjustments to the then-applicable PLAN as LICENSEE believes, in its good faith
judgment, are needed in order to improve LICENSEE’s ability to meet the
PERFORMANCE MILESTONES, as defined below.
X.2 LICENSEE shall use reasonable efforts (including, without limitation,
commitment of funding and personnel consistent therewith) and/or shall cause its
AFFILIATEs and/or SUBLICENSEEs to use reasonable efforts (including, without
limitation, commitment of funding and personnel consistent therewith): (i) to
develop LICENSED PRODUCTs in accordance with the PLAN during the periods
and within the timetable specified therein, (ii) to introduce LICENSED PRODUCTs
into the commercial market and (iii) to market LICENSED PRODUCTs, and to
keep each LICENSED PRODUCT reasonably available to the public, following
introduction thereof into the market.
In addition, LICENSEE shall achieve the following within the designated time
periods:
(a) On or before January 1, 2009, offer for sale a first LICENSED
PRODUCT or SERVICE for nucleic acid sequencing.
(b) On or before January 1, 2009, initiate preclinical tests of a LICENSED
PRODUCT that is a diagnostic kit for the detection of disease in humans.
(c) On or before January 1, 2012, offer for sale a first clinical diagnostic
LICENSED PRODUCT or SERVICE for the detection of disease in
humans.
Each of the activities recited in this Paragraph X.2 shall be referred to herein as a
“PERFORMANCE MILESTONE”.
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X.3 LICENSEE shall inform INSTITUTION, on or before the deadline for meeting
any PERFORMANCE MILESTONE, whether such PERFORMANCE
MILESTONE has been met.
X.4 No later than sixty (60) days after December 31st of each calendar year,
LICENSEE shall provide to INSTITUTION a written annual progress report
describing progress by LICENSEE and any SUBLICENSEE(s) on research and
development, regulatory approvals, manufacturing, sublicensing, marketing and
sales during the most recent twelve (12) month period ending December 31st and
plans for the forthcoming year. If multiple technologies are covered by the license
granted hereunder, the progress report shall provide the information set forth
above for each technology. LICENSEE also shall provide any additional data
INSTITUTION reasonably requires to evaluate LICENSEE’s performance and
compliance with the terms of this Agreement.
X.5 If LICENSEE fails to meet any of its obligations pursuant to Paragraphs X.1
through X.4 of this Agreement, INSTITUTION may notify LICENSEE in writing of
LICENSEE’s failure and, in such event, shall allow LICENSEE ninety (90) days to
cure. LICENSEE’s failure to cure such breach within such ninety (90) days shall
constitute a material breach of this Agreement and
INSTITUTION shall have the right to terminate this Agreement forthwith.
A version of Paragraph X.2 drawn from a clinical diagnostics license sets forth the following
Performance Milestones:
(a) within one (1) year after EFFECTIVE DATE, establish a Scientific Advisory
Board that will oversee the development of LICENSED PRODUCTs;
(b) commence a human clinical trial of a first LICENSED PRODUCT as follows:
(i) if the patient data collected in the RESEARCH can be used to support the filing
of an investigational device exemption (IDE), within two (2) years of the
EFFECTIVE DATE or, (ii) if the patient data collected in the RESEARCH cannot be
used to support the filing of an investigational device exemption (IDE), then within
three (3) years of the EFFECTIVE DATE; and
(c) within two years of commencement of the human clinical trial described in
clause (b), conclude analysis of data from such clinical trial and submit to the FDA
any and all documentation required for marketing approval of a first LICENSED
PRODUCT.
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3. Commentary and examples of limitations on grants of rights in improvements as
discussed in Point 3
Example 1
"Patent Rights" means the Valid Claims of, to the extent assigned to or otherwise
obtained by the Institution, the United States patents and patent applications,
corresponding foreign patents and patent applications (requested under
Paragraph xx.x herein), and any reissues, extensions, substitutions, continuations,
divisions, and continuation-in-part applications (only to the extent, however, that
Valid Claims in the continuation-in-part applications are entirely supported in the
specification and entitled to the priority date of the parent application) based on the
following patents and patent applications: __________. This definition of Patent
Rights excludes any rights in and to New Developments.
"New Developments" means inventions, or claims to inventions, which constitute
advancements, developments, or improvements, whether or not patentable and
whether or not the subject of any patent application, but if patentable, are not
sufficiently supported by the specification of a previously-filed patent or patent
application within the Patent Rights to be entitled to the priority date of the
previously-filed patent or patent application.
Example 2
"Continuations-in-Part" means all continuation-in-part patent applications that
are filed within two years of the original application and only to the extent that they
cover technology disclosed, claimed in and dominated by the original application.
The continuations-in-part also do not include continuations-in-part that have
different named inventors than the original application or that are burdened by, for
example, sponsored research or any other collaboration between Institution and a
third party.
Example 3
“IMPROVEMENT” means: Any invention the practice of which would infringe at
least one claim within the PATENT RIGHTS, which invention is made by at least
one or both of the INVENTORS and is owned and controlled by INSTITUTION.
In a license that contains a field-exclusive grant of rights under PATENT RIGHTS and
IMPROVEMENTS, PATENT RIGHTS are defined, in relevant part, as including any
claim of a continuation-in-part application that is (i) directed at subject matter described
in at least one listed patent application or patent and (ii) is entitled to the priority date
thereof. The effect is to grant rights in technology dominated by what exists at the time of
65
license. Tracking of the promised improvements is facilitated by their limitation to the
work product of a defined pool of inventors. The institution is further buffered against
liability (i.e., for breach of contract on account of inadvertent grants to different parties of
overlapping rights or failure to meet obligations as to licensee participation in patent
prosecution) by restricting IMPROVEMENTS only to those which the institution owns
and controls.
Example 4
“IMPROVEMENT” means: Any invention the practice of which would infringe
at least one claim within the PATENT RIGHTS, which invention is made by at
least one or both of the INVENTORS and is owned and controlled by
INSTITUTION and is disclosed to the TLO within 3 years of the date of the
license and subject to any rights of sponsors in the research leading to the
invention.
A somewhat related issue is that of technology ‘flipping’, wherein a non-aggregator licensee of a university patent
engages in sublicensing without having first advanced the technology, thereby increasing product development
costs, potentially jeopardizing eventual product release and availability. This problem can be addressed most
effectively by building positive incentives into the license agreement for the licensee to advance the licensed
technology itself – e.g., design instrumentation, perform hit-to-lead optimization, file an IND. Such an incentive
might be to decrease the percentage of sublicense revenues due to the university as the licensee meets specific
milestones.
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