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U Wisconsin fights open records law to keep research IP private in first-to-file age

By David Schwartz
Published: May 29th, 2013

The University of Wisconsin-Madison is seeking to alter the state’s open records law so that certain research information could be kept from the public until published or patented. The university had asked Republican leaders to insert the legislative change into the state budget. That effort having failed, UW is now presenting the legislation to GOP lawmakers as a separate bill.

Assembly Speaker Robin Voc (R-Rochester) of the Legislature’s Joint Finance Committee has expressed interest in UM’s agenda. “In general, if it’s a public institution things should be public,” he comments, “but I don’t want to hurt [research].”

UW is pushing the bill to counteract the change in U.S. patent law earlier this year, under which competitors can take advantage of Wisconsin’s open records law to prematurely access university IP. Theoretically, because of the move to a first-to-file system, a competitor could use the open records law to gain premature access to patentable intellectual property, then race to the patent office to seek patent protection for the ideas of researchers, UW officials say.

“Open records laws are admirably transparent, but there’s nothing specific in them for universities, which are a unique enterprise,” says Bill Barker, director of the Office of Industrial Partnerships at UW-Madison. “You want to make sure your competitors don’t know what you’re doing before it’s published.”

There is considerable opposition to the measure, however. Bill Lueders, president of the Wisconsin Freedom of Information Council, finds the bill unnecessary and ill-conceived.

“The open records law already allows UW to deny requests if it can cite a legitimate public policy reason for doing so,” says Lueders. “This [bill] would create a broad exemption for a whole category of records, whether or not any harmful consequences of disclosure can be identified. It is likely to be over-applied, and abused.”

Barker insists that UW “isn’t trying to hide anything from anybody… You’ve got to be as competitive as the world is.” The university’s memo says researchers in medical fields are at a competitive disadvantage if research contracts, protocols and investigational brochures are public documents. “Drug and device manufacturers spend billions of dollars bringing a new drug or device to market,” often working with universities to license early drug discoveries,” the memo says. “If they have fear that their confidential data will be disclosed to one of their competitors before they have the ability to patent their drug/device to bring it to market, they will simply contract with a private entity.”

Some critics have charged that the bill is merely a way for the university to cloak some of its research ties to big businesses, and to escape scrutiny of animal research practices.

Source: Milwaukee Wisconsin Journal Sentinel

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