Dr. Kaswan sued Allergan for tortious interference with her employment contract and fiduciary relationship with UGA. In its summary judgment, the court found that "As to the claims that UGARF and Allergan have committed fraud, tortious interference, or benefited by unjust enrichment, or fraudulent conveyance and conspiracy...the patent policy, the intellectual property policy and the invention administration agreement vest in the University of Georgia Research Foundation wide discretion in how it will administer the inventions and patents created by the energy of the faculty and staff of the University of Georgia."
Allergan argued that "the covenant of good faith and fair dealing can't be used to contradict the language of the express agreements...these agreements said that UGARF had the sole discretion." The court further stated, "No doubt many faculty and staff may be dissatisfied...but...the employee assignment of the patent vests the decision making authority to the University..."
Like Dr. Kaswan, many university researchers are required not only to relinquish the rights to their discoveries, but to do virtually anything the university demands to advance the commercialization of their discoveries. This language from the patent agreement of the University of California of San Diego is typical: "I shall execute any documents and do all things necessary...to assign to University all rights, title, and interest therein and to assist University in securing patent or analogous protection thereon." Further, most university patent and copyright documents fail to specify circumstances where faculty are entitled to retain ownership rights in works developed outside of their assigned university duties.
The University of Michigan goes a step further, asserting ownership over "Intellectual Property made...with the direct or indirect support of funds." Their policy goes on to define funds as those "administered by the University include University resources, and funds for employee compensation, materials, or facilities. Should being paid for their employment cancel out their rights in their research products?
In Dr. Kaswan's case, it is clear that UGARF believed their Intellectual Property Policy precluded her right to participate in the commercialization of Restasis®. UGARF's attorney John K. Larkins, Jr. summed up the university's position when he stated in court, "There's nothing in the agreement that says our right to commercialize is limited by a duty to the inventor. She doesn't get a chance to veto. She doesn't get to do anything."
Until research universities are held accountable to ensure consistency between their stated purpose and their actual policies in practice, innovation will suffer, and the public with it.