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(1) This Policy is effective from 1 January 2021. (2) This Policy is made under Part 4 of the Deakin University Vice-Chancellor Regulations, pursuant to powers granted in Part 5 of the Deakin University Act 2009 (Vic) and in accordance with Section 13 of the Deakin University Statute. (3) This Policy governs the development, ownership and commercialisation of University Intellectual Property (IP). (4) This Policy applies to officers, staff, visitors, affiliates and students of Deakin University. (5) This Policy applies to the following categories of Works: (6) All Intellectual Property Rights in Staff Works are owned by Deakin University. Officers and staff members hereby assign such Intellectual Property Rights to Deakin University immediately on their creation. (7) Where the Staff Works referenced in clause 6 are Scholarly Works, Deakin University assigns ownership of the Intellectual Property Rights in the Scholarly Works to the originating staff member subject to the preservation for Deakin University of a perpetual worldwide, non-exclusive, royalty free licence to reproduce, publish, perform, communicate, disseminate, modify and adapt the Works for Deakin University’s teaching, research and promotional purposes. The licence retained by Deakin University is subject to any overriding contractual obligations the originator owes to third parties (for example, a publisher of a textbook or a journal article). (8) Deakin University grants staff members a non-exclusive, non-transferable, royalty free licence to use Teaching Materials for the purposes of their own teaching, education and research at Deakin University. Unless agreed otherwise by the Intellectual Property Officer, staff members may not: (9) Any Works that may be considered to be both a Scholarly Work and Teaching Materials will be treated as Teaching Materials for the purposes of this Policy. (10) Intellectual Property Rights in Student Works are prima facie owned by the student, subject to clauses 10-19 and clause 11 in particular. (11) Students may be required by Deakin University or a third party to license or assign the Intellectual Property Rights in a student work to another party in circumstances where: (12) HDR supervisors must consider any relevant Intellectual Property Rights that the student may need to access and utilise as well as any Intellectual Property Rights that may be created in the course of the student’s HDR project, and discuss the implications with the student at the outset of the project. (13) Deakin Research Training is provided to assist HDR supervisors and students to understand the implications of any ownership or use rights in respect of Intellectual Property Rights used or created by the student, particularly for the purposes of thesis examination and publication. (14) Where a third party (such as an industry partner) funds a student project, a written agreement entered into by Deakin University, the third party and the student will document the agreed terms and conditions on which the project is to be undertaken. Deakin Research provides assistance with standard agreements, placement agreements and negotiating tailored arrangements where required. (15) Administration of undergraduate agreements post-signing will be managed by each faculty. (16) Administration of HDR agreements post-signing will be managed by Deakin Research and Innovation Portfolio. (17) Deakin University is unable to provide students with legal advice in respect of their individual Intellectual Property Rights creation, ownership or rights of use. It therefore recommends that students seek independent legal advice before signing an Intellectual Property Rights related agreement. Supervisors have discretion to provide up to $400 from project funds to assist students to seek independent legal advice, or as otherwise agreed or determined by the Intellectual Property Officer from time to time. (18) Students who assign Intellectual Property Rights in a Student Work to the University are entitled to share in any net commercialisation revenue paid to Deakin University and arising from commercialisation of those Intellectual Property Rights as if they are designated as ‘staff’ in this Policy. (19) A student who elects not to assign their Intellectual Property Rights pursuant to clause 11, must cease any involvement in the activity that triggered the request to assign. If this means that the student’s project is no longer viable, Deakin University shall use best endeavours to ensure that an alternate project and supervision options are pursued so far as possible to avoid academic disadvantage caused by the student’s decision not to participate in the project. (20) In the ordinary course, the terms of any written agreement in place between Deakin University and an affiliate shall prevail over the terms of this Policy. (21) In the absence of a written agreement, this Policy shall apply as if an affiliate is a Deakin University staff member. However, an affiliate is not entitled to share in the proceeds of commercialisation unless specifically approved by the Intellectual Property Officer. (22) In the ordinary course, the terms of any written agreement in place between Deakin University and a visitor shall prevail over the terms of this Policy. (23) In the absence of a written agreement: (24) Deakin University is committed to the fair and transparent assessment, evaluation, development and management of Exploitable IP. (25) Commercialisation of Exploitable IP is managed by Deputy Vice-Chancellor Research and Innovation (or delegate) in accordance with this Policy. (26) The aims of commercialisation are: (27) Staff must co-operate with all reasonable requests from Deputy Vice-Chancellor Research and Innovation (or delegate) to support and assist Deakin University to commercialise University Intellectual Property, including staff members who invent or are the originator of the Exploitable IP. (29) Staff are required to disclose to Deakin University any Exploitable IP in any Staff Works as soon as practicable after its creation by submitting an Invention Disclosure form (as set out below in Section 5 - Procedure). (30) Staff who wish to use any works in the course of their employment at Deakin University that were created prior to their employment at Deakin University (or outside the scope of their employment at Deakin University) are required to disclose those works to their supervisor, together with any encumbrances or conditions or limitations on those works or on the Intellectual Property Rights in those works, prior to incorporating them in any works created at Deakin University. (31) Subject to clause 7, a staff member who ceases employment with Deakin University is not entitled to use any Staff Works, give or provide any Staff Works (or access to those works), to any person, or to transfer any Intellectual Property Rights in any Staff Works, without the express permission of the Intellectual Property Officer. (32) Net commercialisation returns received by Deakin University from Exploitable IP will be distributed according to the following formula (unless otherwise agreed): (33) Net commercialisation returns received by Deakin University from Exploitable IP will be remitted to the Originators (or their heirs or assigns) in accordance with clause 32, notwithstanding that the Originator’s employment at Deakin University may have ceased. (34) Any dispute between originators as to the identity of potential originators, their relative contributions or the valuation or distribution of their share of returns will be referred to the Intellectual Property Officer for resolution and the decision shall be final. (35) For the avoidance of doubt, the following are not to be considered to form part of the commercialisation returns for the purposes of this Policy: (36) An Originator may wholly assign their rights to net commercialisation revenue to: (37) Deakin University retains the right to license or assign the Exploitable IP to a third party and: (38) A staff member who, by deliberate act or omission, is found by the Intellectual Property Officer to have undermined the commercialisation of Exploitable IP and/or caused loss to Deakin University or any originator, may forfeit any entitlement to benefit under clauses 24-38 of this Policy. (39) Deakin University will take reasonable steps to ensure that an originator is acknowledged in any relevant documents in relation to Intellectual Property Rights (other than copyright) owned by Deakin University. (40) For copyright material owned by Deakin University, Deakin University will use its best endeavours to respect the moral rights of each originator by: (41) Deakin University acknowledges the United Nations Declaration on the Rights of Indigenous Peoples and recognises and respects indigenous cultural heritage, traditional knowledge and traditional cultural expressions and will protect indigenous cultural and Intellectual Property Rights. (42) Any staff member or student who creates University Intellectual Property that they believe may be Exploitable IP (whether or not patentable), must as soon as possible after its creation notify: (43) An originator of Exploitable IP notified under clause 42 must provide all relevant information and must co-operate with Deputy Vice-Chancellor Research and Innovation (or delegate) to provide further information (including new particulars, data, results, findings, commercial interactions and updates) as soon as such information becomes available. (44) An originator must do and sign all such things and documents as may be necessary to protect University IP or to prove ownership of Intellectual Property Rights (including after the end of the originator's employment by, or studies or research with, Deakin University). (45) An originator must not do anything to prevent the disclosure, evaluation or commercialisation of the Exploitable IP by Deakin University. (46) Deakin University will normally only file and continue to prosecute patents where the originators are committed to the patenting, further research and development of the IP and commercialisation processes. It is therefore essential that the originators identified as inventors on a patent application remain involved in the prosecution of a patent, as their technical know-how is needed to ensure that patent examiners’ queries can effectively be addressed. (47) If an originator fails to do that which is required within a reasonable period (three months from date of original request), or Deakin University is not able to contact the originator after Deakin University has made reasonable enquiry, the Intellectual Property Officer may execute all necessary documents relating to the ownership or transfer of Intellectual Property Rights and do such other acts as their attorney. (48) The Intellectual Property Officer is responsible for the management, protection and exploitation of University IP and will consult with originators, Deakin Research and General Counsel as appropriate. Decisions will be communicated to originators in a reasonable timeframe. (49) The Deputy Vice-Chancellor Research and Innovation (or delegate) will establish the Intellectual Property Assessment Committee (IPAC) to consider and make recommendations to the Intellectual Property Officer in relation to: (50) The Deputy Vice-Chancellor Research and Innovation (or delegate) is responsible for working with originators to prepare information for the evaluation process and for communicating with originators at each stage of the evaluation and commercialisation process. (51) The Intellectual Property Officer (or delegate) will determine whether to proceed with the protection of disclosed intellectual property. (52) Legal protection and effective commercial exploitation of intellectual property may depend on maintaining the secrecy of the Exploitable IP as confidential information. During the period in which Deakin University receives, considers, evaluates and seeks to protect and/or commercialise the Exploitable IP, those Intellectual Property Rights are the University’s strictly confidential information and the originator, staff, students and any other person aware of it must not disclose the creation or details of the Intellectual Property Rights without the prior permission of the Intellectual Property Officer. (53) The Intellectual Property Officer will establish the Commercialisation Committee (whose composition will include the Deputy Vice-Chancellor Research and Innovation, Chief Financial Officer, Executive Director, Deakin Research Innovations and General Counsel) to consider, advise, endorse and approve commercialisation proposals initiated by Deputy Vice-Chancellor Research and Innovation (or delegate) or elsewhere within the University (subject to the requirements of the Deakin University Act 2009 (Vic), the University statute, regulations, policies and procedures – most specifically the Ministerial Guidelines concerning commercial activities and Commercial Activities and Entities Policy and Commercial Activities and Entities procedure which may require the further approval of the Vice-Chancellor and Council) including in relation to: (54) If a decision is made by Deakin University not to commercialise Exploitable IP or to cease to continue to commercialise it, Deakin University may offer to assign to the originators the Exploitable IP on reasonable terms and conditions. Any such assignment will also be subject to a perpetual worldwide, non-exclusive, royalty free licence for Deakin University to reproduce, publish, perform, communicate, disseminate, modify and adapt the work for Deakin University’s teaching, research and promotional purposes, and where this is consistent with Deakin University policy, to provide open access to the work. (55) An originator who is dissatisfied with a decision of the Intellectual Property Officer other than a dispute arising under clause 34 of this Policy may, within 30 days of being informed of the decision, submit a written request to the Vice-Chancellor to review the decision. The Vice-Chancellor's decision is final. (56) Delegations are as set out in the following table: (57) For the purpose of this Policy:Intellectual Property policy
Section 1 - Preamble
Section 2 - Purpose
Section 3 - Scope
Section 4 - Policy
Ownership of works
Staff
Staff works
Scholarly works
Teaching Materials
Students
Student works
Assignment or commercialisation of Intellectual Property Rights
Deakin University Support
Distribution of revenues from commercialisation of Intellectual Property Rights
Alternative projects
Affiliates
Visitors
Commercialisation of University Intellectual Property
Proceeds of commercialisation
Acknowledgement of Moral Rights
Intellectual Property Rights and Indigenous Peoples
Section 5 - Procedure
Notification of creation of Intellectual Property Rights
Originators must co-operate with Deputy Vice-Chancellor Research and Innovation and provide assistance as required
Evaluating commercial value of University Intellectual Property
Decisions regarding Intellectual Property Rights
Reversion
Dispute resolution
Delegations
Top of Page
Delegator
Delegate
Scope
Deputy Vice-Chancellor Research and Innovation
Executive Director, Deakin Research Innovations
Responsibility for management of commercialisation of Exploitable Intellectual Property in accordance with clause 25.
Responsibility for establishing the Intellectual Property Assessment Committee in accordance with clause 49.
Intellectual Property Officer
Executive Director, Deakin Research Innovations
Responsibility for the management, protection and exploitation of University Intellectual Property in accordance with clause 43.
Section 6 - Definitions