Open for Trouble: Amending Washington's Open Public Meetings Act to Preserve University Patent Rights

• Publication year: 2021

OPEN FOR TROUBLE: AMENDING WASHINGTON'S OPEN PUBLIC MEETINGS ACT TO PRESERVE UNIVERSITY PATENT RIGHTS

Vladimir Lozan

Abstract: Times have changed. Science is no longer "a perfect working model of democracy," so transparent that it does not need supervision by outsiders.(fn1) Instead, science is now regulated at the federal and state level. At the federal level, laws and regulations require peer review meetings for research at state public universities to ensure compliance with federal funding mandates. At the state level, the Washington Open Public Meetings Act (OPMA) requires that peer review meetings at state universities be open to the public. When a scientist presents during one of these peer review meetings, the state university may lose patent rights because the presentation may contain intellectual property information that, once made public, forfeits patentability. This is certainly true for foreign patent rights and, in more limited circumstances, also true for rights under United States patent law. Though OPMA has exemptions that allow for closed sessions to discuss sensitive information, these exemptions do not encompass patent rights. This scheme conflicts not only with foreign and federal patent law goals, but also with the Washington Public Records Act (PRA). This Comment argues that OPMA should be amended to preserve a state university's patent rights, consistent with patent law goals and the PRA.

INTRODUCTION

The Washington Open Public Meetings Act (OPMA) was enacted to promote government openness. (fn2) OPMA requires that public agency meetings be open to the general public.(fn3) This public meeting requirement applies to state public universities and their decisionmaking bodies.(fn4) State universities hold a host of decisionmaking meetings, including peer review meetings discussing scientific research, as mandated by federal law.(fn5) During peer review meetings, a scientist may reveal sensitive information that, once made public, may jeopardize patentability(fn6) both under foreign patent regimes and, in more limited circumstances, under U.S. law.(fn7)

At state universities, the patents generated by research belong to the university under the Bayh-Dole Act. (fn8) Since the enactment of the Bayh-Dole Act, state universities have used patents as an extra source of funding and revenue by licensing or co-funding with the private sector.(fn9 ) This relationship not only helps secure private research funding but also bridges the gap between research and product commercialization.(fn10)

Because of the financial value patent rights provide for public universities, some states completely exclude the public from any meetings related to state university research. (fn11) Specifically, Ohio and Indiana have statutory schemes that extend intellectual property protection to their public meetings laws.(fn12) Washington State provides some protection for intellectual property by exempting intellectual property from disclosure under the Public Records Act (PRA).(fn13) However, this protection does not apply to public meetings governed by OPMA.(fn14) OPMA allows the public to attend any research peer review meetings at a state university, even when sensitive patent material is being discussed.(fn15)

This Comment argues that OPMA conflicts with the goals of foreign and domestic patent law. OPMA is also inconsistent with the PRA, which protects patentable material.(fn16) Amending OPMA to protect patent rights at public universities is important in Washington, where the University of Washington receives the most federal funding out of any public institution in the nation-funding used for potentially patentable research.(fn17) OPMA should be amended to parallel the intellectual property protections already provided by the PRA, similar to protective schemes in place in other states.

Part I discusses how OPMA operates and how it affects state university research. Part II provides background on how OPMA undermines foreign patent rights. Part III provides background on the threat OPMA poses to domestic patent rights. Part IV discusses other state equivalents of OPMA, and the intellectual property protection they provide. Finally, Part V argues that OPMA should be amended. Amending OPMA is necessary to protect patent rights under foreign patent law as well as domestic law and to align OPMA with the goals of the Bayh-Dole Act.

I. OPMA REQUIRES THAT PEER REVIEW MEETINGS AT PUBLIC UNIVERSITIES ARE OPEN TO THE PUBLIC

The Washington Open Public Meetings Act (OPMA) requires that all public agencies and any other bodies with delegated decisionmaking power open their meetings to the general public. (fn18) This public meeting requirement applies to peer review meetings at state universities like the University of Washington.(fn19)

A. OPMA Requires that Public Agency Meetings Be Open to the Public

The Washington State Legislature enacted OPMA in 1971. (fn20) OPMA's purpose is to promote openness in governmental actions and deliberations.(fn21) The Legislature used strong language in OPMA to ensure it would be "liberally construed."(fn22) OPMA requires all public agency meetings to be open to the public.(fn23) The statute broadly defines a public agency to cover most government entities at the state or local level.(fn24) These public agencies must provide public notice of time and place of their meetings that is annually published in the Washington state register.(fn25) Regular meetings do not require an agenda or other description of the business to be transacted.(fn26)

To help ensure that OPMA is followed, the law provides that any ordinance, resolution, rule, regulation, order, or directive adopted in secret or in violation of OPMA is void. (fn27) A court can hold participants of a secret meeting personally liable and impose a civil fine.(fn28) Ultimately, the purpose of OPMA is to safeguard the public's ability to observe all steps of government decisionmaking.(fn29)

B. OPMA Requires State Universities to Open Meetings to the Public, Including Peer Review Meetings

Washington's universities are public agencies and are subject to OPMA. (fn30) As such, the meetings of state governing bodies must comply with OPMA.(fn31) Further, some of these state governing bodies must also comply with federal laws in order to receive federal funding.(fn32)

For instance, the Health Research Extension Act of 1985 requires that an Animal Care Committee (ACC) reviews and directs animal research in compliance with federal regulations. (fn33) Scientists present their research to the ACC to help ensure federal compliance.(fn34) The ACC is subject to OPMA.(fn35) While the project review forms are designed to be generally disclosable(fn36) and intellectual property can be further redacted in compliance with the Public Records Act,(fn37) scientists may still be required to visually or orally present sensitive information-intellectual property-in order to answer questions targeted at candid peer review, which, in turn, helps ensure compliance with federal law.(fn38) Even if federal compliance is not the reason behind the peer review meeting, these types of meetings are an essential part of the research process to evaluate merits of the research. These peer review meetings typically reveal confidential information.(fn39) Even less formal presentations, such as "chalk talks,"(fn40) can reveal such information.(fn41) Publicly disclosing confidential information negates the novelty of an invention, a requirement for patentability.(fn42)

II. PATENT RIGHTS ARE DESTROYED UNDER MOST FOREIGN PATENT LAWS ONCE AN INVENTION IS REVEALED PUBLICLY

OPMA requires researchers at state universities to reveal their intellectual property to the public. (fn43) Under most foreign patent laws, any public disclosure of intellectual property immediately destroys all patent rights to that property.(fn44) As such, this public meeting requirement threatens the ability of those researchers to patent their intellectual property.(fn45)

Most foreign patent laws address novelty differently than U. S. patent law.(fn46) The critical distinction between foreign and domestic patent laws is their respective methods of recognizing an invention's ownership.(fn47 ) The United States patent system follows a first-to-invent principle, whereby inventors may take up to one year after a public disclosure to file a patent for an invention they have created.(fn48) All other countries utilize a first-to-file system, where the first person to file gets the patent and any prior disclosure forfeits the patent rights.(fn49) Because a majority of U.S. patent applicants are interested in securing patents outside the United States, most applicants have adopted a first-to-file practice.(fn50) To comply with the first-to-file system, patent applicants may not publish or reveal their intellectual property in any way before the patent application is filed. (fn51)

The European Community provides the most significant example of a first-to-file patent recognition scheme. Inventors seeking a foreign patent typically do so in Europe(fn52) because the European Community is the world's largest trading bloc.(fn53) In this trading bloc, the European Patent Convention (EPC) has harmonized the patent laws of European Union Member States as well as other contracting states.(fn54) With just one application, an inventor can obtain a "basket...