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Board of Trustees Seal

Intellectual Property

Academic Affairs


PDF Version: BOT Intellectual Property Policy


Contents

  1. Introduction
  2. Roles and Responsibilities
  3. Policy Statement
  4. Definitions
  5. Policy History

I. Introduction

  1. Authority: C.R.S. § 23-54-102, et seq. (2019) authorizes the Trustees of Metropolitan State University of Denver (MSU Denver) to establish rules and regulations to govern and operate the University and its programs. The Trustees retain authority to approve, interpret, and administer policies pertaining to University governance. The Trustees authorize the President of MSU Denver to approve, administer, and interpret policies pertaining to University operations.

  2. Purpose: This policy outlines the rights of the University and University employees to own, reproduce, and distribute copyrightable works and patentable inventions created during the course of University employment in accordance with federal copyright and patent laws.

  3. Scope: This policy applies to University employees, including student employees, and students.

II. Roles and Responsibilities

  1. Responsible Executive: Chief Executive Officer

  2. Responsible Administrator: Chief Academic Officer

  3. Responsible Office: Office of the Chief Academic Officer

  4. Policy Contact: Chief Academic Officer, 303-615-1900

III. Policy Statement

A. Copyright Policy 

  1. Encouragement of Scholarly and Creative Work: In the course of teaching and professional development duties and other intellectual and administrative activity at the University, faculty, staff, student employees, and others may create works that are protected by copyright. Federal copyright law provides that most original works of authorship are protected by copyright automatically when they are fixed in tangible form.  Copyrightable works or authorship include, among other categories, books, articles, and other written works; musical and dramatic works; pictures, sculpture, and other works of art; computer software; and electronic chip designs. Works created by faculty, staff, and student employees in the course of their responsibilities may be found in any of these categories. As a matter of fundamental policy, the Board of Trustees encourages the wide dissemination of scholarly and creative work produced by members of the University community, including copyrightable works.

  2. Ownership: Under the Copyright Act, the copyright to work created by a person in the course of his or her employment belongs to the employer rather than to the individual creator. The Act provides, therefore, that works created by faculty members in the course of their teaching and professional development activities, and works created by staff members in the course of their jobs, are property of the University. However, to encourage members of the academic community to write and to publish what they wish, most colleges and universities have not asserted their claims of ownership to certain scholarly works.  Instead, books, articles, lecture notes and outlines, computerized “courseware” and other forms of scholarly writing intended to fulfill the regular classroom teaching and professional development responsibilities of faculty have traditionally been treated as the property of the author, who is entitled to determine how the works are disseminated and to keep any income they produce. In recognition of this longstanding academic tradition, the University disclaims ownership of works by faculty, staff, and students, whether in traditional or nontraditional forms, except in the following cases:

    1. Assigned Tasks. The University will own the copyright to works created (i) by administrative /professional or classified staff members of the University in the course of their assigned duties or employment; (ii) by student employees in the course of their assigned duties (“student employees” includes students who work on a university-funded project, with or without academic credit), or (iii) by faculty members as part of an agreed assignment, when the assignment explicitly states that the work will be owned by the University.

    2. Outside Agreements and Consultant Agreements. When copyrighted materials are developed by an investigator in the course of sponsored research funded by an outside agency or organization pursuant to an agreement approved by the University, ownership of the copyright will be determined by the applicable terms of the funding agreement if the agreement addresses the issue. When University resources are used to retain the services of a consultant or independent contractor for the specific purpose of creating a copyrightable or patentable work, the contract shall provide that the consultant will assign the work to the University unless the Provost approves other terms.

    3. Patentable Works. When a copyrighted work is also patentable, such as certain computer software source code, among other categories of work, the University's patent policy will apply to it, notwithstanding any inconsistent provisions of this policy.

    4. Online and Other Distance Learning Course Materials. Online and other distance learning course materials (including course materials delivered over the Internet or a campus intranet, by TV or radio broadcasts, or fixed in machine-readable digital storage media, videotape, or audio tape) cannot be treated as traditional works because of the legal and business consideration that affect them. The University devotes significant material and technical resources to the design, development and distribution of these course materials. Also, contracts involving display, reproduction, or distribution of copyrighted material commonly require assurances as to ownership as protection against infringement claims. The University must retain sufficient rights in online and distance learning course material to provide such assurance if they are to pursue distance education opportunities that may arise in an uncertain business environment. Also, the University must retain sufficient rights in online and distance learning materials to enter appropriate and mutually acceptable relationships with external organizations. Because the terms of such relationships cannot be foreseen, it is not possible to provide specific guarantees of any kind as to what the University may be able to provide faculty members in the form of compensation and terms. However, the Trustees recognize that University ownership and use of academic work that is created by faculty may involve important consideration of academic integrity. Before entering a contract with an external public or private organization that would involve such academic consideration, the University will consider the faculty member’s interest in using and protecting the integrity of the work, including but not limited to interests in: (1) using the work in future scholarly activity and employment; (2) controlling the use of the faculty member’s name in association with the work; and (3) revise the work to assure that it is current. Unless otherwise agreed in writing, the University will retain ownership of scholarly or creative work that is delivered, transmitted, or fixed as provided in this subparagraph. However, the Trustees encourage joint ownership agreements with faculty members who create online or other distance learning courses, which agreements would grant the institution the exclusive right to license the work to others for a specific period of time, allow each party to retain a nonexclusive right to use the work for non-commercial educational purposes, and address the issues of attribution and revision. The Trustees authorize the President to establish institutional contract terms and revenue sharing policies for distance learning courses that as may be, in the President’s judgment, financially prudent and consistent with the University's commitments and objectives.

    5. Special Circumstances. When the University makes an unusual and significant commitment of resources to a project, the University may retain ownership of any works created. The President or Provost will determine whether such commitments exist in a particular case and whether the University will retain ownership of such works. When feasible, the President or Provost will make this determination before the work is created and at the beginning of this project, and will so inform the principal investigator or other responsible party.

      Although sabbatical leave involves such an unusual significant commitment of resources, works created by faculty members on sabbatical leave traditionally have been treated as the property of the author.  Except as provided in subparagraphs a, b, c, and d of this policy, the College disclaims ownership of works by a faculty member on sabbatical leave.

      Works that do not meet the criteria stated in subparagraphs a through e  above, and works created by a University employee outside the scope of employment and without the use of institutional assistance, support, facilities or resources shall be the exclusive personal property of the employee.

      In any case in which there is a question about the ownership of a work, the President or Provost will decide the issue.

  3. Students. Because students who are not University employees may work with faculty members or other University employees on intellectual property in which the University claims an interest as provided herein, the Copyright Act does not automatically grant the University ownership of the copyright to student work. However, to assure fairness, students who serve on University-funded projects, with or without salary and with or without academic credit, are covered by this policy as student employees. Students acting in such capacity are subject to this policy as a condition of their enrollment, employment, or association with the University-funded project. Students will be the sole owners of works that they create solely in their capacity as students or individuals, and not as “student employees” as that term is defined in this policy.

  4. Use of Income from University-Owned Works

    1. Division. Any income which the University receives from the commercial licensing, sale, lease, or other commercial use of copyrighted works owned by the University pursuant to this copyright policy will be shared as determined by the University in its sole discretion. The University will ordinarily share fifty percent of net revenues from such commercial uses with the individual employees who created the work.

    2. Disposition of College Shares. The portion of net income that is not paid to the creator of creators of a work will be used as determined by the University in its sole discretion.

  5. Assistance from the University. A faculty member, staff member, or student employee who has created and under this policy owns a copyrighted work, and who wishes to engage the resources of the University for assistance in licensing or otherwise exploiting the copyright, may request such assistance from the Provost's Office or other office designated by the Board. If the University provides such assistance, all net income from its licensing efforts will be shared between the University and the creator(s) as provided in paragraph 4 above.

  6. Authors are Responsible for Registering and Defending their Copyrights. Except as provided in paragraph 4 of this policy, faculty members, staff, and students are solely responsible for identifying, registering and taking any other legal action necessary to protect and defend their copyrights and any related rights to or arising from work in which the College has disclaimed ownership interests.

  7. Modification: Effective Date.  This policy is subject to modification or revocation by the Board Trustees at any time, in its sole discretion. This policy is effective from the date of approval by the Board of Trustees with respect to works created after that date and shall remain in effect until modified or revoked.

B. Patent Policy

  1. Encouragement of Patents. In the course of teaching, professional development, and other intellectual and administrative activity at the University, faculty, staff, student employees (as defined in this policy), and others may make discoveries or inventions both patentable and practical. Encouraging such inventions in appropriate ways both supports the public interest and is consistent with the advancement and dissemination of knowledge, the primary purpose of teaching and professional development. The University’s patent policy establishes the procedure to be followed in the administration of inventions which result from teaching, professional development, and other intellectual activity performed under University auspices as defined and clarified in paragraph 6 below.

  2. Purpose of Patent Policy. The purposes of this patent policy are (1) to help assure, in the public interest, that the patentability (or other means of protection) and practicality of inventions will be evaluated by qualified persons, and that the income from inventions will be used to support professional development or other desirable University activities; and (2) to allocate remuneration between the inventor or inventors (hereinafter the “inventor”) and the College if the invention produces Net Revenues from commercial use.

  3. Procedure as to Inventions

    1. Patent Applications. All inventions described in paragraph 1 shall be reported promptly in writing to the President or Provost. The President or Provost, with the advice of legal counsel, shall conduct an initial screening followed, if appropriate, by a detailed evaluation of the invention.  The evaluation may be conducted internally or referred to an external organization.  After the evaluation, the College, with or without the assistance of an external organization, may make application for letters patent or other means of protecting and marketing the invention. At the President’s or Provost’s request, the inventor shall execute assignments or other documents assigning to the University all rights in the invention and any patent applications or resulting patents on the invention. The University will retain title to all such patent applications and resulting patents.  If the University decides that it does not wish, and/or has no obligation to participate in patenting or licensing an invention, the University may release the University's interest in the invention to the Inventor, and the Inventor shall then be free to dispose of the invention as he or she wishes.

    2. License Agreements.
      1. If the University decides to participate in patenting or licensing an invention, the University will seek to enter into appropriate licensing arrangements to commercialize the invention. The University's objectives are to assure the development of its technology in furtherance of its own educational mission and to the benefit of society in general. Therefore, as a general policy, the University will establish license terms that further these objectives. Exclusive licenses will be granted if it appears to the University that this is the most effective way of ensuring that development will proceed to the point that the public will benefit. Any exclusive license agreement will protect against the licensee’s failure to develop and market the invention within a specified time.
      2. Grants or contracts sponsored by government agencies and private businesses typically include a section covering patents on future inventions, if any. When deemed appropriate, the sponsor may be granted a license to any inventions developed during the term of the grant or contract in accordance with the policies outlined in (1) above.

  4. Division of Net Revenues. The Net Revenues as defined below shall be divided between the Inventor(s) (as defined under the patent law) and the University as follows: 50% to the inventor(s), 50% allocated to University purposes pursuant to paragraph 5. As used in this document, the term “inventor” may represent two or more individuals. These individuals will be expected to agree among themselves on the fractional distribution of the “inventor” share of any Net Revenues. A written agreement must be signed by all the individuals involved, and deposited for the record in the President or Provost’s office.  If no written agreement has been deposited at the time of a distribution of Net Revenues, the inventors’ share of such distribution shall be divided equally among the inventors.

  5. University Use of Net Revenues. The University’s share of Net Revenues will be used for such University purposes as the President shall determine.

  6. Inventions Not Under University Auspices. Inventions by University employees usually result from teaching, professional development, or other intellectual activity involving University facilities or personnel.

    Accordingly, all inventions by University employees must be reported to the President or Provost's office.  If the University determines that an invention by a University employee is unrelated to the activities for which the individual is employed and has not involved the use of University facilities, property, or personnel, the University will make no claim to such an invention. All inventions made or conceived under circumstances involving University facilities, property, or personnel are the property of the University. 

    An invention made by a faculty member in the course of a paid consulting engagement for a company may be assigned to the company only if it is unrelated to the activities for which the faculty member is employed by the University and the invention was not made or conceived under circumstances involving University facilities, property, or personnel. Such an invention will be considered unrelated to the activities for which the faculty member is employed by the University if the invention arises directly out of consulting activity paid for by the company, and, for example, it is made in response to a problem posed by the company or is based on nonpublic information provided by the company to the faculty member for use in the consulting engagement. All inventions made by University faculty members in the course of consulting, and any assignments of rights to such inventions, must be reported promptly to the President or Provost's office. The University will agree to abide by reasonable confidentiality restrictions for disclosures of inventions and assignments made in the course of consulting.

    An invention will be considered not to have involved the use of University facilities if no University facilities or resources (including, but not limited to, space, computers, laboratory equipment and supplies), no University-administered funds, no University property and no University personnel other than the faculty member himself or herself, are involved in the conception or reduction to practice of the invention.

  7. When Arrangements with Outside Organizations Override this Policy. Arrangements with outside people and organizations that propose terms which are exceptions to this policy must be submitted to the President or Provost for review.  If approved by the University the terms shall be binding upon all members of the faculty, staff, and employees of the University conducting such projects or utilizing such facilities, and will supersede the provisions of this patent policy to the extent that the terms are inconsistent herewith.

  8. Inventions by Staff Resulting from Performance of the Responsibilities of Their Employment. If administrative/professional or classified staff make commercially valuable discoveries or inventions in the course of carrying out their assigned duties (e.g., the employee received a salary or wage for the purpose of developing the discovery or invention or for work which directly resulted in the discovery or invention), there is no presumption that the University will share any resulting net revenues with the employee. The University does not share revenues with such staff except in cases where it appears that the invention or commercially valuable property has not resulted from the performance of assigned duties. However, the President or Provost may decide to share revenues on any basis.

  9. Governmental Rights in Certain Inventions. Current governmental regulations permit educational institutions to retain rights and title to patentable inventions which results from federally funded experimental, developmental and research work. Retention of rights by a college is contingent upon the satisfaction of a number of obligations by the college and the inventor(s). These obligations must be met to protect the parties’ interests.  Though the University may retain rights and title to such patentable inventions, the federal government retains a royalty free license and places certain other restrictions upon the ultimate disposition of the patent(s). Details of the implementing regulations may be obtained from the office of the President or Provost. Members of the University community who apply for and receive federal funding to support research or who use federal monies in the conduct of their research must execute a written agreement that they will promptly disclose patentable inventions to the University and will execute all instruments necessary to protect the rights of the government and/or the University. Forms for this agreement will be provided to all faculty and will be available for other participants from the office of the President or Provost.

  10. Revocation or Amendment. This patent policy is subject to revocation or amendment by the Board of Trustees in its sole discretion. In case of doubt as to the interpretation of this patent policy, a definitive interpretation will be provided by the President or Provost. This patent policy is effective as to all inventions/discoveries made on or after the date of adoption.

IV. Definitions

  1. For purposes of this policy:

    1. “Intellectual property” means a work, creation, invention or idea that can be owned, protected or controlled under the laws of the United States, the state of Colorado, or other governments, concerning copyrights, patents, and similar legal interests.

    2. “Copyright” is the exclusive right of the owner to reproduce a work, prepare derivative works, distribute the work by sale or otherwise, and display or perform the work publicly. Copyright subsists in “original works of authorship” as defined by law, which have been fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. In contrast to a patent, which protects an “idea,” copyright protects the “expression” in the particular work.

    3. A “patent” is a grant issued by the U.S. Patent and Trademark Office or a similar right granted by a foreign country. Generally, in the United States, a patent gives an inventor of a novel, useful, and nonobvious creation, invention, or idea the right to exclude all others from making, using or selling the invention within the United States, its territories and possessions for a period of 20 years after the U.S. Filing Date of the parent patent application. Patent procedures, criteria for patentability, and terms in foreign countries vary considerably from country to country.

    4. “Creator,” “Inventor,” and “Author” are used in this policy to describe any person who possesses or claims any legal rights to intellectual property through conception, creation or other lawful means of acquisition.

    5. “Contractor” is any person or entity that receives payment for goods and/or services that is reported by the College to the Internal Revenue Service on form 1099.

    6. “Net revenues” or “net income” means gross income received from the commercial uses of intellectual property (including but not limited to earnings, gains, investments, license fees, rents, royalties, or sales) less all direct or indirect costs of producing, protecting, and enhancing the value of, the intellectual property (including but not limited to personnel costs and overhead, consulting fees, legal fees, and the other costs associated with securing the copyright or patent, for defending it against claims of infringement, and for licensing, marketing, or otherwise using the work for commercial purposes).

    7. “Commercial,” when used in this policy to describe the transfer, sale and/or other use of intellectual property owned by the University, shall refer to a use that is intended to produce profit or net revenues in the commerce of intellectual property. The word shall not include uses of intellectual property for the education of students duly enrolled in the University, or for other non-profit educational purposes. The University will not share net revenues with the creator or inventor for such non-profit educational uses.

V. Policy History

  1. Approved by: Board of Trustees

  2. Effective: April 1, 2019

  3. Revised: This policy supersedes section 5.9 of the MSCD Trustees Manual, 2007.

  4. Review: This policy will be reviewed every five years or as deemed necessary by University leadership.

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