A good set of national template agreements won't hurt in the commercialisation process. Mandating their use might.

The Department of Education recently sought views on development of a framework for IP management and negotiation, including establishing as set of template agreements. This is a summary of Curtin's response.

Curtin supports the development of a set of standard documents that can act as a reference for stakeholders and a fair and balanced midpoint from which to negotiate agreement and achieve alignment on the process of commercialisation. International experience with such agreements suggests that they can act as a good start point or fall-back position to facilitate agreement.

The aim of developing a set of templates is to reduce the time and cost in establishing collaborations and ultimately increase the number of successful commercialisation outcomes. This might be achieved if the agreements reflect commercial norms already established, address the needs of both parties and align interest towards success.

The main item of concern in the proposed IP Framework is the mandatory application of standard agreements in certain circumstances. This may be counter to the purpose of introducing the agreements. There are many instances where Universities and companies reach agreement on collaboration with use of existing templates. Inserting a new form may disrupt this process and lead to delays and unnecessary administration. The discussion paper indicates that the standard agreements will be mandatory for projects that directly receive funding from ARC or DESE when engaging in research commercialisation agreements with a value under $100,000. This raises a number of questions.

1. Who will determine the connection between the ARC/DESE funding and the commercialisation event? In most instances, the outputs of ARC projects are too early for commercialisation. There is often more work required to establish and formalise IP of commercial value. What will be the extent of the link required between the IP commercialised and the ARC project outputs to trigger mandatory use? Who reports, monitors, audits this? It is likely that this process will create onerous reporting that will outweigh any benefits of mandatory implementation. It may also lead to an unintended outcome of under reporting of IP outcomes from ARC projects to avoid capture in mandatory arrangements.
2. How will the value of the contract be determined? This may be straightforward with a research services agreement but is less clear for IP related transactions that include future royalties and milestone payments that are at risk. How will this process be monitored/audited? Again, there is likely to be a significant recording and reporting process that may not justify benefits.
3. What if parties have already established a working relationship and /or are happy with an existing form of agreement? Introducing a new agreement puts additional burden of review and approval on the parties.
4. What if a collaborator prefers to use their own template for internal risk and approval purposes? A mandated agreement may be an impediment to collaboration in such instances.

It is our view that a set of templates and explanatory documents that address the needs of both parties and allows some flexibility to suit circumstances could fast track formalisation of the commercialisation process. However, if implementation comes with additional record keeping, reporting and audit obligations then any benefit gained is likely to be outweighed by the cost. We're interested in the views of others on this topic.