March 3, 2022
3 March 2022
Department of Education, Skills and Employment
The Group of Eight (Go8) is pleased to take this opportunity to respond to the Department’s public consultation on the Higher Education Research Commercialisation Framework (HERC IP).
Please note the Go8 consents to this submission being made public in full.
The Go8 represents Australia’s eight consistently leading research-intensive universities, with seven of its members ranked in the world’s top 100 universities. It undertakes 70 per cent of Australia’s university research and spends some $6.5 billion on research each year. In addition:
- Collectively, Go8 universities attract industry funding for research that is twice that of the rest of the sector combined.[1]
- In 2020 Go8 universities earned $96 million in commercialisation revenue.[2]
- One member (the University of Queensland) earned over $64 million in commercialisation revenue, which is 50 per cent more than CSIRO[3].
The Go8 has previously provided comprehensive feedback in November 2021, in response to earlier drafts of the templates. We do not comment on the individual templates in this submission, rather we provide general comments on the Framework as a whole.
Recommendations
- That the Government set out a clear strategy that discusses the role of the HERC IP Framework within the context of research commercialisation in Australia and specifically as it relates to the University Research Commercialisation Action Plan
- The Framework’s agreement templates should not be mandatory. This remains a threshold issue for the Go8.
- That the Government take steps to further refine the Framework templates based on consideration of Go8 university expert feedback
General
The Go8 is committed to the effective translation and commercialisation of our research and, as outlined above we have a demonstrable track record in research commercialisation. Collectively, in 2020 the Go8 earned $95.5 million in research commercialisation income and was responsible for the majority of Australia’s new and active start-ups and spinouts attributable to public research as well as active licences, options and assignments.
All Go8 universities have expertise in negotiating and establishing meaningful collaborations with industry, whether for research contracting, research commercialisation or other research-based engagement. One university has negotiated around 130,000 agreements in the lifetime of a single commercialisation expert there. Other Go8 universities report transacting 3000-4000 agreements annually. These partnerships are based on agreements that have taken years to craft and refine, with the legal team of one Go8 university reporting that most do not even reach their desks, given the ease with which they can be ratified.
There is significant value in simplifying the IP negotiation landscape for both industry and universities, and the Go8 supports that intent. A rigorous, clear, easy-to-understand, well-developed toolkit (rather than requirements) which is fit for purpose and takes into account the variability which exists in both industry and universities is what is needed – not a mandated prescriptive approach. Such an approach, with its rigid framework, could actually act as a deterrent, especially to our SME industry base.
Cultural change of the magnitude that has been described in the Government’s University Research Commercialisation Action Plan can only be effective through nuanced and tailored policy and enabling mechanisms, rather than through blunt adoption of a concept which has been challenged in at least one originating jurisdiction, the United Kingdom. The HERC IP Framework risks being a significant failure for Government unless sufficient measures are taken to properly promote its benefits to both universities and their industry partners.
No overarching framework
Given the Government’s previous narrative around the HERC IP Framework has been that it is aiming to create a distinct shift against perceived difficulties around IP in university-industry collaborations, the documents lack an overarching rationale and direction.
The material consists simply of a set of draft templates albeit with ‘plain English’ versions and a practical guide. The documentation does not provide an overall understanding of the purpose and rationale of the Framework, the parameters for its use, the projected trajectory for its uptake by universities, a strategy to assist universities and industry partners to adopt it, its relationship to other Government strategies, nor any future plans to evaluate its use and modify or enhance the templates. Instead to a large extent, the discussion in the practical guide goes to specific advice regarding individual templates, which while potentially useful in identifying the correct template to use, cannot assist universities in convincing industry partners to consider uptake of the templates in preference to their own agreement formats or even those previously agreed with individual universities.
The Go8 advocates that further advice and information be given to users to assist them understand the place of the Framework in the Government’s overall plan and direction for university commercialisation, as well as specific strategies to influence adoption or otherwise that are tailored to Australia’s specific business environment and trends.
Mandatory nature
As the Go8 has previously noted, the mandatory nature of the framework, proposed in 2021, would have created significant issues for Go8s in prosecuting their partnerships, particularly when well-trodden ground exists in relation to negotiation with existing or long-standing partners, or individual Go8 universities have simpler shorter agreement forms that have already been tested with industry. A mandated framework presents even more of a challenge, when the industry partner may already have developed its own set of agreement formats for its partnerships which it would prefer to employ or has reached agreed formats for partnerships with individual universities.
The Go8 notes the stipulation advised in the Practical Guide that the HERC IP Framework is mandatory in relation to the Trailblazer program and the Australia’s Economic Accelerator program only. The Go8 welcomes this limited use of the framework, however remains strongly opposed to any mandatory requirements being imposed on universities because of the reasons noted above. The Practical Guide does not discuss or explain why this particular condition applies to those two programs nor how they were selected for mandatory use of the Framework.
The Practical Guide’s use of the word ‘must’ in relation to individual agreement templates throughout the document also misleads the reader into an obligation to use the templates.
Short timeframe for response versus pre-emptive implementation
The Go8 notes that well before this public consultation the Government announced the Trailblazer program whose guidelines required that universities – through their applications for the program – agree to adopt the Framework. This was required as early as the Expression of Interest[4] phase. While Go8 universities have all applied to the program, the requirement to comply with a yet to be finalised framework goes against good policy and program principles.
The Go8 notes that the short timeframe afforded stakeholders to respond to this public consultation is also counter-productive to reaching a well-developed framework, particularly given the technical nature of the agreements, requiring legal as well as commercialisation experts among others in universities to scrutinize.
The Go8 calls on the Government to remove mandatory use of the HERC IP Framework for any funding programs.
Not fit for purpose
As noted in the Go8’s previous November 2021 submission, the Framework is not fit for purpose for the following reasons:
- Templates are overly long and complicated, with some over twice the length of those used by universities
- Terms are inappropriately used or defined in some agreements
- There is inconsistency or unneeded complexity in some references (for example products versus technology) and industry standards should be used to describe items to the extent possible
- There is insufficient rigour applied to the setting out of terms, for example the lack of end dates in some agreements where a commencement date is required
- There is undue compulsion to adopt certain conditions that may be unusual such as the requiring use of the default IP licence, setting too high a liability for universities, or requiring a waiver of moral rights
Lack of clarity /detail
There is a lack of sufficient clarity or detail in the terms, for example as noted in previous consultation and currently by our universities, there is no pathway or prescribed mechanism to promote the flow down of obligations on the grant agreement executing party to the collaborator.
In closing, the Go8 supports the intent to facilitate greater and improved university-industry engagement and welcomes the Government’s commitment to and funding for university research commercialisation.
However, the Go8 also cautions against the risks of working against universities’ existing successful relationships and future partnerships with industry and business players who cannot adopt the HERC IP Framework templates due to their complexity and length. We urge the Department to further refine the templates as a voluntary toolkit and resource and promote its uptake through educative material and processes rather than a mandatory requirement.
Yours sincerely
VICKI THOMSON
CHIEF EXECUTIVE
[1] Go8 Facts of Distinction 2020; see: https://go8.edu.au/wp-content/uploads/2020/01/Go8-Facts-of-Distinction_web.pdf
[2] 2021 Survey of Commercialisation Outcomes from Publicly Funded Research
[3] Ibid
[4] The EOI form noted that by completing the EOI, universities acknowledge that they had agreement from parties to adopt the HERC IP framework