Cristina Garmendia en Fundación COTEC, por hiperenlaces relevantes en www.cita.es/cotec y www.miguelgallardo.es/cristina-garmendia.pdf 

Estimada Dra. Garmendia:

Como recordará, el pasado 24 de noviembre le pregunté por los derechos industriales de titularidad pública y patentes de invención de funcionarios  o empleados públicos sobre las que pueda existir alguna sospecha de malversación o abuso de recursos públicos para lucro privado ilícito.

En 2010 la revista “Mundo Electrónico” publicó el artículo que puede verse en http://www.miguelgallardo.es/patentes/funcionarios.pdf 

Lamentablemente, el Tribunal de Cuentas no quiso enjuiciar algunos escandalosos casos de la Universidad Politécnica de Madrid UPM, en el procedimiento cuyo documento fundamental mantengo en

http://www.miguelgallardo.es/patentoscopia.pdf 

Actualmente investigo y comparo esta problemática en varios países como puede verse en el borrador que adjunto, que también puede verse en inglés http://www.miguelgallardo.es/patents.pdf actualizando “borrador vivo” en

https://docs.google.com/document/d/1TgJ5_ZZStzYWaBpnssRUR4cQVqKz8hHa0h8rzYrOK1M/edit 

Nada me agradaría más que esas referencias o el borrador adjunto pudiera ser del interés de COTEC, o de quien pueda y quiera impulsar esta investigación, hasta el momento, absolutamente privada, por lo que cualquier acuerdo, convenio o contrato es negociable con mi empresa.

Con mi mejor y más atento saludo.

Miguel Ángel Gallardo Ortiz, ingeniero, criminólogo, licenciado en Filosofía y diplomado en Altos Estudios Internacionales, perito judicial en informática, telemática, acústica y criptología forense, por CITA y APEDANICA en Madrid Tel +34 902998352 fax 902998379 E-mail: miguel@cita.es

https://docs.google.com/document/d/14gRYe0cXD6tsWOk4cNcJMcDEzu5R5uM2Y9ObkrtRuAo/edit 

Industrial rights in inventions made with public funds

in Spain, Europe and United States (paper DRAFT 3.0)

Miguel A. Gallardo, engineer and criminologist, Tel.: +34902998352 E-mail: miguel@cita.es

https://docs.google.com/document/d/1TgJ5_ZZStzYWaBpnssRUR4cQVqKz8hHa0h8rzYrOK1M/edit 

The main aim of this paper draft is to help to improve transparency for controls and competence on research and development (R&D) intellectual and industrial (patents) rights and properties made with public funds in Spain and Europe so we are very open to any advice or new information that could be useful for new proposals to Spanish or European authorities at any time. Corrections and updating references are (and always will be) very welcome in the years to come.

Spanish approach

The Spanish Courts of Auditors for public funds (Tribunal de Cuentas del Reino de España) is checking and auditing public funds financing patents of Universidad Politécnica de Madrid (UPM) after our small company Cooperación Internacional en Tecnologías Avanzadas, SL <www.cita.es> asked for efficient controls on industrial rights licenses and co-ownerships of patents made with pubic funds. Professors that are public officials or civil servants in Spain are also patent applicants in some cases instead of the public university, and we suspect that also Spanish army officials and other public servants are also doing some business on industrial rights legally forbidden for them, even if no authority is taking care of their patents in Spain at the moment, unfortunately.

For instance, OEPM Spanish patent office (Oficina Española de Patentes y Marcas) never replied to anyone of our messages and phone calls, and it is not possible to find any useful information concerning patents made with public funds at OEMP Website, as far as we know.

After some years of serious research on many Spanish patents made with public funds or privately owned by public officials, we are pointing out that many R&D projects are illegally used for uncontrolled private profits, some of them in small company owned and controlled by public officials and university professors. However, old Spanish laws are not appropriate to audit public loses in R&D and no authority seems to be interested in any question or survey in order to check that public funds controlled by public officials are properly collected and that they are spent legally, economically and for the intended purpose. Some patents of Universidad Politécnica de Madrid (UPM) are very profitable only for some few professors but not for UPM or public interest, and some others patents are just crazy too expensive inventions that never will be exploited. Anyhow the inventors-professors enjoyed a lot on public expenses and got credits for their personal careers no matter how ruinous and useless the patent is. University authorities are aware of the problem, but they seem to be interested in their own business on venture capital companies that can select whatever they want from public universities including patents made with public funds for R&D.

Our only hope now in Spain is Tribunal de Cuentas legal procedures for auditing public funds but it seems too slow (in May 2010 the last published report for public universities is from year 2003). While we work to find more evidences about patent frauds, we shall be very pleased to provide a copy of all the documents to anybody that ask for them in an electronic mail sent to miguel@cita.es

European approach

Mr. Lucio Battistotti, then Head of Unit at DG Employment, with responsibility for managing the European Social Fund (ESF) in Spain, Denmark and Finland, in July 2008 admitted that European Commission had no control over public funds for more than 300 direct contracts of Universidad Politécnica de Madrid (UPM) with European Commission, so it is completely impossible to survey any patent made with European public funds. In April 2009 we had 4 hours meeting with A. King (DG INFSO), C. Pagnutti (DG RTD), L. Di Francesco (DG RTD) offering detailed information with company names controlled by UPM professors and on 21/10/09 we received a document from Mr. Pagnutti with this text: “DG RTD A.4 will surely take this information in due consideration when auditing Spanish entities receiving and managing RTD funds. Whenever a serious fraud situation should be detected, it will be our priority task to alert Commission competent body (OLAF) to deal with. During that meeting, the Commission's auditors also informed Mr. Gallardo Ortiz that due to the dispositions on protection of the personal data and on confidentiality of the audits, no information could be divulged to third parties about the actions to be taken and / or the results of potential audits to be performed”. In our opinion, no serious fraud can be detected if public officials can control private companies that receive public funds or industrial rights from patents made with public funds, and no disposition on protection of personal data and on confidentiality of the audits can be used as a pretext to hide information on public funds on R&D in Europe concerning public officials profit activities (disclosure of data on the income of employees of bodies subject to control by the Rechnungshof was allowed by Judgment of the European Court of 20 May 2003 in Joined Cases C-465/00, C-138/01 and C-139/01 so the jurisprudence on public funds and public officials incomes does not support Mr. Pagnutti wrong and lazy pretexts).

Other European authorities are not doing more or better in order to control public funds in R&D and patents or any other industrial rights Looking for more responsibilities at the European Court of Auditors, we can read this sentence: “In carrying out its duties and responsibilities within the mandate laid down in the Treaty and the Financial Regulation, the European Court of Auditors performs its audits in accordance with the IFAC and INTOSAI International Auditing Standards and Codes of Ethics, in so far as these are applicable in the European Community context. Auditors are required to respect Court Audit Policy and Standards, ECA Audit Manuals and all audit procedures adopted by the ECA”. Nice words for no knowledge or control at all on patents. For instance we found no data or references about patents at European Court of Auditors Special Report No 8/2009 'Networks of excellence' and 'Integrated projects' in Community Research policy: did they achieve their objectives? It is very obvious for us that no, they did not. But the point now is how can be improved European control on public funds for R&D and patent industrial rights.

The European Patent Office (EPO) organized 1st (2007) and 2nd (2008) Controlling Conference of International Public Organizations but nobody seems to be controlling patents made with public funds in Europe. At least, searching carefully in the European Court of Auditors no evidence of this is found and Madrid European Patent Forum (28th and 29th May 2010) public speeches did not mention this serious problem. However, some “off-the-records” from EPO as well as countries authorities, managers and evaluators admitted a “conspiration of silence” concerning public officials private profits on industrial rights in Universities R&D and military defense for instance1.

United States of America approach

We can read at Wikipedia that Bayh-Dole Act or University and Small Business Patent Procedures Act is United States legislation dealing with intellectual property arising from federal government-funded research. Adopted in 1980, Bayh-Dole is codified in 35 U.S.C. § 200-212, and implemented by 37 C.F.R. 401. Among other things, it gave US universities, small businesses and non-profits intellectual property control of their inventions and other intellectual property that resulted from such funding. The Act, sponsored by two senators, Birch Bayh of Indiana and Bob Dole of Kansas, was enacted by the United States Congress on December 12, 1980.

Inventions "conceived or actually reduced to practice" in the performance of government-funded research may be subject to the Bayh-Dole Act. The Federal Research Public Access Act (111th congress S.1273, introduced 25 June 2009 but still in a Senate committee) would require "free online public access to such final peer-reviewed manuscripts or published versions as soon as practicable, but not later than 6 months after publication in peer-reviewed journals”. Moreover, U.S. Code TITLE 35—PATENTS

PART II—PATENTABILITY OF INVENTIONS AND GRANT OF PATENTS

CHAPTER 18—PATENT RIGHTS IN INVENTIONS MADE WITH FEDERAL ASSISTANCE

§ 200. Policy and objective

It is the policy and objective of the Congress to use the patent system to promote the utilization of inventions arising from federally supported research or development; to encourage maximum participation of small business firms in federally supported research and development efforts; to promote collaboration between commercial concerns and nonprofit organizations, including universities; to ensure that inventions made by nonprofit organizations and small business firms are used in a manner to promote free competition and enterprise without unduly encumbering future research and discovery; to promote the commercialization and public availability of inventions made in the United States by United States industry and labor; to ensure that the Government obtains sufficient rights in federally supported inventions to meet the needs of the Government and protect the public against nonuse or unreasonable use of inventions; and to minimize the costs of administering policies in this area.

…

At least once every 5 years, the Comptroller General shall transmit a report to the Committees on the Judiciary of the Senate and House of Representatives on the manner in which this chapter is being implemented by the agencies and on such other aspects of Government patent policies and practices with respect to federally funded inventions as the Comptroller General believes appropriate.

Now it is very obvious for us that United States of America is legally very ahead on this aim.

This paper draft will be updated at 

https://docs.google.com/document/d/1TgJ5_ZZStzYWaBpnssRUR4cQVqKz8hHa0h8rzYrOK1M/edit 

and also (please check it now here) at http://www.miguelgallardo.es/patents.pdf

Further readings and references (Spanish) at http://www.miguelgallardo.es/patentes

“MUNDO ELECTRÓNICO” http://www.miguelgallardo.es/patentes/funcionarios.pdf

http://www.cita.es/tcu-patentes.pdf http://www.miguelgallardo.es/tcu-patentes.pdf

http://www.cita.es/patentes.pdf http://www.miguelgallardo.es/patentes.pdf

http://www.cita.es/upm.pdf http://www.cita.es/competencia/desleal

and the most detailed one at http://www.miguelgallardo.es/patentoscopia.pdf 

© 2010 All rights reserved for www.cita.es and www.miguelgallardo.es

1EPO         Director Media Relations said: “...the         EPO has clear provisions on the rights and duties of employees in         its Service Regulations, including the obligation to strict         neutrality and impartiality in exercising their duties. In         particular, EPO employees are         not entitled to file for patent protection.         Any breach of these regulations will have severe consequences for         the offender. Moreover, operations at the EPO are being monitored by         our Internal Audit Department, which oversees the correct         application of all regulations and legal provisions”.

https://docs.google.com/document/d/1TgJ5_ZZStzYWaBpnssRUR4cQVqKz8hHa0h8rzYrOK1M/edit