As we reported in our October Newsletter, the New Jersey Superior Court Appellate Division heard arguments in September from the AAUP and the university administration over whether Rutgers has to negotiate over changes it made in the 1996 patent policy.

The Appellate Division has now ruled that Rutgers may not evade its obligation to negotiate over the terms of the patent policy by claiming that it has an overall research or educational policy with which negotiations would interfere. This decision flows from Rutgers appeal of a ruling by the Public Employment Relations Commission (PERC) – PERC ruled that the administration was obligated to negotiate over many terms of the patent policy – including the amount of royalty compensation due to researchers, ownership of laboratory notebooks and other research material that are not involved in patent applications, the reversion of the right to patent to the researcher when Rutgers decides not to patent or exploit the discovery or invention, the timelines and notice requirements in the policy, and the effective date of the patent policy changes.

Rutgers argued to the court that it had a right to refuse to negotiate over every aspect of the patent policy, including traditionally negotiable terms such as compensation, and to make unilateral changes to the policy at any time. In Part C of the decision, the Court affirmed the AAUP’s right to negotiate in very strong terms. The Court explained that the terms of any assignment of patent rights to the university has a “the potential for a significant impact on the overall compensation an individual may receive as a result of his or her efforts at Rutgers. . . . The University cannot act by its own fiat in such a sphere.”

On the issues of ownership of notebooks and timing of disclosures, the court’s ruling was not as favorable. The court did not require negotiations over the administration’s claims to ownership of the physical notebooks, relying on its representations that the inventor owns the contents of the notebooks and that it will always provide access to the original notebooks themselves.  The court also found that the requirement of ‘prompt’ disclosure of discoveries was not subject to negotiations.  Although the court rejected the AAUP-AFT’s bid to negotiate over these issues at this time, the decision leaves the door open for possible negotiations if the administration changes its access or disclosure policies in the future.

No further appeals are expected. Further information on negotiations will be forthcoming.

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