The complexities and challenges around intellectual property (IP) are well-recognised by clinician entrepreneurs as a major barrier to the development, adoption and spread of innovation in the NHS. Peter Young, NIA Fellow and a Consultant in Anesthesia and Critical Care, shares his thoughts on how IP could enable rather than hinder.
The UK is recognised for inventiveness and innovation, and consistently ranks in the top ten of Nobel laureates per capita – outranking the USA by nearly 2:1. However, in a 2013 report, the top 100 global innovators failed to include any UK businesses.
In 2002, the Department of Health published a framework on the management of Intellectual Property (IP) within the NHS, to guide senior NHS managers as to how to manage IP generated by all NHS employees for income generation.
This informed the policies of NHS Trusts and defined contractual requirements across the NHS. Whilst well-meaning, this may have inadvertently adversely affected the freedom to innovate for clinician innovators and entrepreneurs.
The framework declared that: “…generally speaking, UK law provides that (unless otherwise agreed) IP produced by employees in the course of their employment or normal duties belongs to the employer,” and also that: “…new terms of contract would make it clear that making and reporting innovations and inventions is part of every employee’s duties.”
This position could be reasonably challenged by clinicians (with the financial resources to do so), however the legal ambiguity of the situation at an early stage can prevent the ability to successfully engage with industry, at a time when the idea may have little real value prior to substantial investment and development.
Clinical entrepreneurs and innovators recognise that an idea and the associated IP is worth nothing to patients or financial managers unless developed into a successful and implemented product. It is the ability to drive this process that takes 99% of the effort, passion and investment. Profit share arrangements of most Trusts are laudable but miss the point. There must be freedom for the innovator to choose (with encouragement and help where available) the direction, investment and re-investment of resources during this navigation of ‘the valley of death’ to transform a fledgling innovation to realise a global product. This is what is needed to avoid snuffing out innovation in its infancy.
The worst scenario is a common position where a normally cash-strapped Trust, inexpert in this field, cannot provide the required time, expertise or resources outside of their core services to reasonably support an innovation or innovator at the level required to succeed – but by policy owns and controls the IP.
Proven successful models in US tech industries celebrate and free-up entrepreneurs through individual IP ownership. This helps to build businesses, generate jobs and wealth, and most importantly enables the realisation and ultimate uptake of innovation for the benefit of the economy and most importantly for the end beneficiaries – the patients.
I am often approached by other clinical entrepreneurs and innovators to share my learnings and experience. If their primary motivation is personal financial gain, my advice is to stick to the day job! Entrepreneurship requires passion, risk, sacrifice and the freedom to follow the best path for your innovation. Financial sustainability and a lifetime of re-investment of all profits is the key to reaching your destination.
If the end game is to provide good for humanity, then innovators in the NHS need support from their institution and national bodies, within a safe or even celebrated environment where ‘conflicts of interest’ are embraced as necessary, and even desirable. Most importantly, they need to have a greater freedom to operate. There is a growing mass of individuals and institutions within the NHS who understand and support these goals. The hope is that this may soon be reflected in policy to inform a cultural change at the grassroots.