Intellectual Property Policy
Approved by the Davidson College Board of Trustees' Executive Committee on June 10, 2008.
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I. Introduction
Davidson College is dedicated to teaching and to the pursuit of knowledge. While the primary focus of these activities is to lead students to lives of leadership and service, Davidson College recognizes that the creation of Intellectual Property (as defined in Section II below) will be a natural outgrowth of activities within the Davidson College community. For this reason, Davidson College has adopted this Intellectual Property Policy (the "Policy") to set forth the rights and obligations of Davidson College and its Members (as defined in Section II below) with respect to all Intellectual Property.
The goal of this Policy is to ensure that Intellectual Property created by Members is utilized in ways most likely to benefit Davidson College and the public. Davidson College seeks to assist its Members in properly disclosing all Intellectual Property that they create, in complying with applicable laws and formal agreements, and in gaining the protection available under laws governing patents, copyrights and other intellectual property rights. Likewise, Davidson College seeks to ensure that commercial benefits are distributed in a fair and equitable manner that recognizes both the contributions of the Members and the interests of Davidson College.
II. Definitions
As used in this Policy, the following capitalized terms have the following meanings:
"College-Owned Intellectual Property" means all Intellectual Property other than Member-Owned Intellectual Property.
"Committee" means the Intellectual Property Advisery Committee of Davidson College.
"Intellectual Property" means any software, research, article, study, photograph, painting, literary work, musical work, theatrical work, invention, formula, process, discovery, development, design, innovation or improvement (whether or not patentable or registrable under copyright statutes) made, conceived, developed or first actually reduced to practice by a Member solely or jointly with others, during the period in which the Member is (i) employed by Davidson College, (ii) enrolled as a student at Davidson College or (iii) engaged by Davidson College to provide any services as an independent contractor.
"Member" means a member of the Davidson College community, including all faculty, staff, students and independent contractors of Davidson College.
"Member-Owned Intellectual Property" has the meaning set forth in Section V below.
"Policy" has the meaning set forth in Section I above.
"President" means the President of Davidson College.
"Separate Agreement" means an agreement, grant or other document that (i) contains terms and conditions governing the use and ownership of Intellectual Property and (ii) is binding upon Davidson College. In order for a Separate Agreement between Davidson College and a Member to be binding on Davidson College, the Separate Agreement must be signed by the President.
[Commentary: A Separate Agreement could be an agreement between Davidson College and a corporation pursuant to which the corporation provides resources in exchange for the ownership rights in all intellectual property created using such resources. Another example would be an employment agreement between Davidson College and an employee that sets forth the ownership rights with respect to intellectual property created by the employee.]
III. Applicability of Policy
All Members are subject to the terms and conditions of this Policy. This Policy sets forth the rights and obligations of Davidson College and its Members with respect to all Intellectual Property, including all Intellectual Property created prior to the effectiveness of this Policy. However, Davidson College will from time-to-time enter into Separate Agreements which govern the use and ownership of Intellectual Property. In such cases, if any term or condition of any Separate Agreement conflicts or is inconsistent with any term or condition of this Policy, then the conflicting or inconsistent term contained in the Separate Agreement shall govern and control.
[Commentary: Without a policy, Davidson College will by law own almost all Intellectual Property created by its Members. However, Davidson College desires for its Members to have the same ownership rights with respect to Intellectual Property created prior to the effectiveness of this Policy as they have with respect to Intellectual Property created on or after the effectiveness of this Policy. Therefore, Davidson College has made this Policy effective for Intellectual Property created prior to, on or after the effectiveness of this Policy.]
IV. Ownership Rights of Davidson College
Davidson College shall be the sole and exclusive owner of all right, title and interest in and to all College-Owned Intellectual Property, and no Member shall have any right, title or interest in or to any College-Owned Intellectual Property. As owner, Davidson College shall have sole authority to exercise all rights available with respect to any College-Owned Intellectual Property, including, without limitation, negotiating and entering into agreements for the sale or license of the College-Owned Intellectual Property and obtaining copyright, trademark or patent protection for the College-Owned Intellectual Property. No Member shall sign any agreement which purports to abrogate any of Davidson College's rights and interests as stated in this Policy or as provided in any Separate Agreement.
V. Ownership Rights of Members
All right, title and interest in and to all Member-Owned Intellectual Property (as defined below) shall be solely and exclusively owned by the Member who made, conceived, developed or first reduced to practice the Member-Owned Intellectual Property. However, Davidson College shall have a non-exclusive, perpetual and royalty-free license to use all Member-Owned Intellectual Property for internal instructional, educational and administrative purposes, including, without limitation, for satisfying requests of accreditation agencies for faculty-authorized syllabi and course descriptions.
For purposes of this Policy, "Member-Owned Intellectual Property" means any of the following Intellectual Property:
A. Any Intellectual Property created by a faculty member or student of Davidson College that does not fall within one of the following categories:
1.Intellectual Property that is patentable (or potentially patentable) or that reasonable could (or potentially could) be used for a commercial purpose.
[Commentary: Examples of work that are not intended to fall within this category are lecture notes, course materials, scholarly articles, books, artwork, and musical and theatrical works. In addition, unpatentable laboratory work, software and databases that are used primarily for educational or research purposes and that can not reasonably be used for commercial purposes are not intended to fall within this category. Finally, faculty and student websites that are used for educational or research purposes, and not commercial purposes, are not intended to fall within this category.]
2. Intellectual Property that is specifically directed, commissioned or sponsored by Davidson College.
[Commentary: An example of work in this category is the output of a faculty member on special assignment to write a history of Davidson College.]
3. Intellectual Property that is more integral to, and reflects more directly on, the identity of Davidson College than on the identity of the individual(s) who create them.
[Commentary: Examples of work in this category are Davidson College's website, alumni bulletins, admission materials, fundraising materials, catalogs and magazines. Also included in this category are works which prominently use the Davidson College name or any image, trademark or logo of Davidson College. However, simply identifying the author of a book as a Davidson College professor or using the Davidson College bar and diamond logo in a presentation or talk would not be considered a prominent use of Davidson College's name.]
4. Intellectual Property that is created using substantial resources of Davidson College.
[Commentary: Use of "substantial resources" requires resources of a degree or nature not routinely made available to all faculty. For example, providing a faculty member with his or her own dedicated lab space or extended IT support from a staff member would be considered use of substantial resources. However, ordinary use of computers or library resources or use of a departmental lab space that is available to all department members would not be considered use of substantial resources.]
If a student assists a faculty member in creating any Member-Owned Intellectual Property, then, as between the student and faculty member, the faculty member shall have all rights with respect to such Member-Owned Intellectual Property.
[Commentary: Section V.A is based on Davidson College's belief that, as a general rule, faculty and students should own their scholarly works. However, Davidson College believes that it should own scholarly works that are patentable (or otherwise have commercial applications), commissioned by Davidson College, created using substantial resources of Davidson College or are associated more with Davidson College than the creator.]
B. Any Intellectual Property that a non-faculty or non-student employee of Davidson College develops on his or her own time, without using the funds, equipment, supplies, facilities or trade secret information of Davidson College, unless such invention relates at the time of conception or reduction to practice to: (i) the business of Davidson College, (ii) the actual or demonstrably anticipated research or development of Davidson College or (iii) any work performed by the employee for Davidson College.
[Commentary: Section V.B is based on Davidson College's belief that ownership rights in Intellectual Property created by non-faculty and non-student employees should in general be consistent with the intellectual property policies of commercial enterprises.]
C. Any College-Owned Intellectual Property the ownership rights of which Davidson College has agreed in writing to release pursuant to Section VIII.
VI. Disclosure of College-owned Intellectual Property
When a Member makes, conceives, develops or reduces to practice any College-Owned Intellectual Property, the Member shall (i) promptly file a report with the Chairperson of the Committee on the form designated by the Committee, (ii) provide such other information and cooperation regarding the College-Owned Intellectual Property as is requested by the Committee, and (iii) if requested by the Committee, execute and deliver such agreements, forms and documents as are necessary to fully transfer and assign to Davidson College all right, title and interest in the College-Owned Intellectual Property.
Without the prior written approval of the Chairperson of the Committee, no Member shall disclose any College-Owned Intellectual Property to any person or entity, including, without limitation, publishing any College-Owned Intellectual Property or any summaries, conclusions or findings related thereto.
VII. Revenue Sharing
Davidson College will share the Net Revenue (as defined below) it receives from an item of College-Owned Intellectual Property as follows:
| Net Revenue* | Member | Member's Department | Davidson College |
|---|---|---|---|
| First $5,000 | 100% | 0% | 0% |
| $5,001 - $50,000 | 40% | 10% | 50% |
| Over $50,000 | 30% | 10% | 60% |
* "Net Revenue" means the revenue received by Davidson College from the commercialization of the College-Owned Intellectual Property, less all costs and expenses incurred by Davidson College in connection with the College-Owned Intellectual Property, including, without limitation, legal fees, filing fees, licensing agent fees, consultant fees, accountant fees and out-of-pocket expenses.
This Section VI is subject to the following conditions:
A. If a Member is not associated with a department, then the Net Revenue share that otherwise would have been distributed to a department will be distributed to Davidson College.
B. The departmental share may be used for equipment purchases, research and instructional activities, and other purposes approved by the Vice President for Academic Affairs, but it may not be used to create or support permanent faculty positions.
C. If multiple Members create College-Owned Intellectual Property, then the Members will be expected to agree among themselves on the fractional distribution of each Member's share of any royalties. If the Members are unable to agree on how to share their distribution of royalties, then the President will decide the matter based on a recommendation of the Committee and such decision shall be binding on the Members involved. The Members shall sign a written agreement, in form and substance acceptable to Davidson College, specifying the fractional distribution of their share of royalties. The Member's share will continue even if he or she leaves Davidson College.
D. Members may arrange for their personal share to be retained by Davidson College (e.g., to support their research).
VIII. Request for Davidson College to Release its Ownership Rights
At any time after a Member has disclosed an item of College-Owned Intellectual Property in accordance with Section VI above, the Member may file a written request with the Chairperson of the Committee requesting that Davidson College release its ownership rights in the College-Owned Intellectual Property.
Provided the Member timely provides the Committee with all requested information and cooperation, the Committee will notify the Member in writing within 90 days after receipt of the release request of the Committee's decision whether to release Davidson College's ownership rights in the College-Owned Intellectual Property.
If the Committee does not notify the Member of the Committee's decision within such 90-day period, then the Committee shall be deemed to have agreed to the Member's request for Davidson College to release the College-Owned Intellectual Property.
If the Committee decides to release Davidson College's ownership rights in the College-Owned Intellectual Property, then, as a condition to the effectiveness of the Committee's decision, (i) the President must execute a document agreeing to release Davidson College's ownership rights in the College-Owned Intellectual Property and (ii) the Member must execute a document, in form and substance acceptable to Davidson College, whereby the Member agrees to pay Davidson College ten percent (10%) of all revenues and other monetary or financial consideration resulting from the College-Owned Intellectual Property.
IX. Administration of the Policy
The administration of this Policy shall reside exclusively with the Committee. The President shall have the sole power and authority to appoint, remove and replace Committee members. The Committee shall consist of at least five (5), but no more than ten (10), members. Unless the President decides otherwise, the Committee shall consist of (i) the Vice President for Academic Affairs who will be the Chair, (ii) two (2) faculty members and two (2) students (faculty and students will be representative of the intellectual property at issue), (iii) a representative from the Library, (iv) the Executive Director of Information Technology Services, (v) the Director of The Office of Sponsored Programs, and (vi) Davidson College's legal counsel.
The Committee's responsibilities will include:
- Reviewing intellectual property issues affecting Davidson College, including periodic review of this Policy;
- Evaluating the patentability and commercial or other value of submitted College-Owned Intellectual Property;
- Determining a course of action for legally protecting and commercializing submitted College-Owned Intellectual Property; and
- Ensuring that all sales and licensing of College-Owned Intellectual Property are implemented to bring the College-Owned Intellectual Property to the public while securing financial reward for Davidson College and its Members.
The Chairperson of the Committee shall report to the President. Davidson College's attorney shall be consulted on all legal matters pertaining to this Policy.
X. Dispute Procedure
If a dispute exists as to whether Intellectual Property is Member-Owned Intellectual Property or College-Owned Intellectual Property, then an ad-hoc committee shall be formed (the "Dispute Committee"). The Dispute Committee shall consist of (i) the Member who created the Intellectual Property in dispute (or, if more than one Member assisted in the creation, one Member designated by all Members who assisted in the creation), (ii) a person designated by the President, and (iii) a person jointly designated by the Member and the President's designee. The decision of the Dispute Committee shall be final and binding on the Member(s) who created the Intellectual Property in dispute and Davidson College.
XI. Use of Davidson College Name and Marks
Davidson College owns or has a proprietary interest in any trademark, service mark or other distinguishing mark (collectively, "Marks") that represents or identifies Davidson College, its programs, or its services, including, without limitation, the name, seal and logo of Davidson College. Unauthorized use of the Marks is prohibited. Members shall only use the Marks in accordance with Davidson College's policies regarding the use thereof.
XII. Use of Student and Faculty Images
Except to the extent prohibited by law, Davidson College may use images of Members without consent and faculty may use images of students without consent.
XIII. Amendments to the Policy
This Policy may be amended at any time by the Davidson College Board of Trustees or the Executive Committee of The Board of Trustees. However, any amendment to this Policy shall not affect the rights and obligations of Davidson College and the Members with respect to any College-Owned Intellectual Property disclosed in accordance with Section VI prior to the effectiveness of any such amendment. An amendment to this Policy shall become effective thirty (30) days after the earlier of the date that (i) the amendment has been posted on Davidson College's website, (ii) a revised Policy incorporating the amendment has been posted on Davidson College's website, or (iii) Davidson College has informed (via e-mail or otherwise) its Members of the Policy amendment.