Driving creativity and innovation through intellectual property policies

Robert M. Sherwood once said “If people seem to be more innovative in the United States or Europe or Japan, it is not an accident. It is not because of genes or schooling or intelligence or fate. Human ingenuity and creativity are not dispersed unevenly across the globe. Those talents are present in every country. In some, unfortunately, the enabling infrastructure of effective intellectual property protection is missing”. Intellectual Property ( IP) infrastructure encompasses intellectual property laws and intellectual property policies, capable human resources, information, and technology infrastructure etc. To protect intellectual property effectively, particularly technologies, experts who can competently conduct patent information search analysis and draft correct patent applications are needed.

Sound institutional Intellectual Property ( IP) policies are an important IP infrastructure. They facilitate effective identification, evaluation, protection, management, and commercialization of intellectual property. Having realized the importance of institutional IP Policies, the Government of xogy, and Innovation ( NRSTI) Policy of 2011 that all research and academic institutions should develop and implement institutional IP policies to encourage creativity and innovation in Botswana. Nonetheless, several research and academic institutions still do not have functional policies despite concerted efforts made by the Department of Research, Science and Technology ( DRST).

Institutional IP Policies provide more details and guidance on how best institutions can harvest, manage, and derive financial value out of their intellectual property assets. For instance, the Industrial Property Act of Botswana provides for IP ownership between an employee and employer by stating that where intellectual property is created in execution of a contract of employment, the intellectual property belongs to the employer absent any written agreement to the contrary. It also provides thus IP belongs to the person who created it. The question is, what if intellectual property is created by an employee outside his scope of employment but using resources of the employer? The other question could be, who owns the IP if IP is created by a visiting researcher, or a student enrolled with an academic institution? This is not provided for in the intellectual property laws of Botswana. There is no mention of students or visiting researchers in the laws. Let’s get it clear. This article does not suggest that the IP laws of Botswana are inadequate. It simply highlights the important role institutional IP policies can play in defining IP ownership for all participating parties as the creation of IP on many occasions requires several parties.

Botswana does not have a law for the management of IP emanating from publicly funded research and development. This makes it even more compelling for local research and academic institutions to develop and implement sound institutional IP Policies. Institutional IP policies can be used to regulate the behaviour of employees, students and faculty in research and academic institutions. An institutional IP policy of a research and development intensive university may disallow publication of research outputs before patents are filed and clearance for publication is obtained from relevant authorities within the institution. By so doing, such a university promotes more patent filing and increases opportunities for licensing or selling away of university invented technologies to industries. A new, useful, and non- obvious technology that is not patented belongs to the public. An inventor of such a technology cannot stop others from commercially exploiting it and is not entitled to any royalties from anyone making and selling the technology.

In 1980, the Bayh- Dole Act, came into force and transformed the IP landscape in many American research universities. The number of patents filed by universities increased drastically as well as the amount of revenues universities made from selling and licensing their intellectual property.

In 2000 more than $ 1.2 billion in total revenue was earned through university licensing agreements. In 2005, Stanford University sold its stake in Google for $ 336 million, and in 2011, Northwestern University earned $ 192 million dollars through its commercialization efforts ( Silvernagel, Olson, & Stupnisky, 2021). Botswana has not yet enacted a similar law. In the absence of this kind of a law, local research and academic institutions can use sound institutional IP policies to achieve similar results. Students regularly produce intellectual property in the form of classwork and course work projects in areas such as Business, Home Economics, Design and Technology, Engineering, Science and Technology. However, most if not all these innovations are usually abandoned as there are no institutional IP Policies to provide guidance as to evaluate such innovations for intellectual property protection and commercial exploitation.

An institutional IP Policy may act as a barrier to students and employees creativity, innovation, and entrepreneurial activity. Usually this occurs if students or employees do not understand or do not like the potential outcome of implementation of an IP policy. They may decide to withhold their best ideas. Consequently, it is important for a university or research institute to understand students or employees’ perspectives about the institutional IP policy and take corrective action. The IP policy must be very clear and be consistently communicated to students or employees. Students or employees should be proactively and regularly reminded about their IP ownership rights and responsibilities as well as IP ownership rights and responsibilities of the university or research institute. By doing this, a university or research institute enhances transparency, reduces internal misunderstandings, and tensions, and maximizes institutional innovation and entrepreneurial activity. Intellectual property generated by students in local universities has the potential to generate large amounts of revenue for both students and universities. This is only possible if local universities develop and implement appropriate institutional intellectual property policies and use the policies to motivate and reward students and staff for creativity and innovation.