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Hastings Law Journal

Abstract

Most universities treat professors who create copyrightable works differently than professors who create patentable inventions with regard to intellectual property (IP) rights. Universities generally allow professors who create copyrightable works to retain full control over their works. Conversely, professors who create patentable inventions are contractually obligated to assign their inventions to the university and receive only a small percentage of any royalties generated by their inventions, while the university has full control over marketing the inventions. This Note argues that professors should own all IP rights in their creations, whether the creations are copyrightable or patentable. Faculty contracts should reflect this ownership scheme.

The author develops three reasons for this position. First, because no genre of creation is intrinsically "better" than another, moral equity demands equal treatment between technical and liberal arts professors and their respective creations. Second, allowing professors to own their patentable inventions outright would serve as an incentive to produce more inventions, which would benefit society. Finally, if professors own the IP rights in their creations, they would be more likely to remain in academia than to jump to the greener, more lucrative fields of private industry; this is especially true for professors who specialize in the technical fields. Granted, university technology transfer offices (TTOs) would lose their present monopoly over the marketing of faculty-created inventions. However, the author reassures universities that they would lose little royalty revenue if they revamp their TTOs to compete for professors' business.

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