Evaluation of the Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts – Management Response and Action Plan

4.0 Conclusions and Recommendations

Major conclusions reached during the evaluation are summarized. A set of recommendations are presented to improve the ability of the Policy to meet its objectives.

4.1 Conclusions

Regarding relevance, the evaluation determined that:

• The Policy is consistent with federal government principles and approaches for IP;
• The Policy is consistent with Government of Canada priorities and the use of Crown procurement to achieve social and economic objectives; and
• The Policy is an appropriate means to meet its objectives of increasing the potential for the commercialization of IP and meeting operational requirements.

Regarding performance (i.e. effectiveness), the evaluation determined that:

• The Policy has been implemented in applicable departments and incorporated into standard contracting processes; data have been collected and reports have been produced; and Department Heads have built awareness of the Policy among procurement staff;
• Processes in the departments studied in the Case Studies were insufficient in terms of documenting the justifications behind the decisions to invoke exceptions. There was a lack of controls, documentation trails and validation steps;
• The intent of the Policy was for most contracts to vest IP ownership with contractors, but a majority of contracts that were expected to generate IP actually ended up with the Crown owning the IP. Unfortunately, it is not possible to judge the appropriateness of the use of exceptions without more information on the rationale supporting the IP ownership decisions;
• There are opportunities for IC and TBS to improve the monitoring of results and follow up on data abnormalities;
• The Policy probably increased the likelihood of contractors responding to RFPs on contracts where an exception was not invoked;
• The Policy probably increased the likelihood of commercialization of IP, but this could not be measured from the data collected;
• The Policy has served to provide greater clarity for procurement officials for the treatment of IP; and
• The Policy may have helped the Crown avoid costs associated with potential legal challenges.

Regarding performance (i.e. efficiency), the evaluation determined that:

• The costs to administer the Policy were likely commensurate with its benefits.

4.2 Recommendations

The conclusions of the evaluation lead to the following recommendations.

1. To improve the monitoring and implementation of the Policy, IC and TBS should clarify roles and responsibilities with respect to the Policy within three months. Consistent with the Policy, monitoring should focus on cases where exceptions were invoked.
2. Once the roles and responsibilities have been clarified, the agreed upon department(s) should:
   1. Encourage departments to maintain appropriate documentation in contract files to justify IP ownership exceptions;
   2. Encourage departments to review the quality of data to be included in the GWPRS IP Report;
   3. Advise departments when they have reported high IP retention rates or the use of an exemption without Treasury Board approval;
   4. Share the results of the annual analysis of the GWPRS IP Report with departments through appropriate forums;
   5. Enhance the Implementation Guide to provide additional clarity; and
   6. Identify best practices used by departments and share these best practices through appropriate forums.
   7. Review IP retention rates one year after implementation of actions, and if a higher than expected use of exceptions still exists assess the appropriateness of their use and take appropriate action if required.