By Maurice Bolo and Dorine Odongo of the Harmonization of Open Science and Commercialization project

Through a series of case studies of contemporary research partnerships derived from research consortia funded by the National Commission for Science, Technology and Innovation (NACOSTI), our project is interrogating the extent to which policy decisions have affected the choices, behavior and practices of researchers involved in collaborative research in Kenya. Through in-depth interviews, four (4) out of the ten (10) case studies have revealed some interesting findings that we believe will have direct implications for open science approaches and research partnerships.

We highlight a few:

1) “From Sunguprot to Super Sunguprot”: A case of private sector actor taking control of research data, develops a new product and patents it leaving out other project partners in a case of follow-on innovation.

In this particular case, a consortium (consisting of a public university, two public research institutes and a private sector company) sought to improve the functions and design of the production process of sunguprot and porridge as food supplements, by obtaining data that aims not only at validating the products and process, but also to develop agronomic strategies for sustainable production of one of the least studied plants, Tylosema fassoglensis, an important ingredient of the products. Sunguprot is a herbal food supplement with both anti-retroviral and nutritive properties. It comes in the form of porridge and is ideal for people suffering from HIV/AIDS, the malnourished and the aged.

Sunguprot was initially an invention of a private sector company which had already obtained IP protection (Utility model); and regulatory approvals from the Kenya Bureau of Standards (KEBS) and the Pharmacy and Poisons Board (PPB) to sell and market the product as food supplements. However, the product still required validation that necessitated further physio-chemical, micro-chemical, clinical, and pharmocological analyses to determine safety, quality and efficacy of the products prior to producing prototypes and moving into large scale commercialization. Despite several attempts, the partners failed to sign a consortium agreement that would provide guidance on IP rights, publication guidelines and data protection issues. When the research was finally done and dissemination planned, the private sector actor feared losing both the current data as well as his initial invention through public disclosure of the research findings. With no guidelines on how to resolve the IP rights issue and no agreement defining partners’ obligations, the private sector actor sought and obtained approval from the funder (NACOSTI) to apply for IP rights over the research findings. He applied and got protection over all the data from the research and has gone ahead to develop super sunguprot as a superior product based on the research findings.

2) “We are waiting to see what happens”: Research consortia develops commercializable products but have no idea who owns the products

In this case, a consortium of two public universities, a public research institute and an NGO sought to apply indigenous knowledge on indigenous seeds, leafy vegetables and tubers to produce nutrient dense food product prototypes with prolonged shelf life for health management and wealth creation. The project has PhD and MSc students undertaking specific studies on food formulation and production, nutrient analysis and coming up with new products as such as biscuits, doughnuts, bread etc. While some of these are already being tasted and tested by selling to the students in the university canteens, the consortium have not defined ownership and when asked, they simply replied, “we shall wait and see if anyone claims ownership.” Although by design the research was to lead to new products, neither the funders nor the researchers had prior consideration as to the potential conflicts that might arise should any of these products prove to be commercially viable or lead to any novel findings.

3) “They ran with our research data and ideas”: when partners disagree and part ways and others form parallel partnerships in a case of post partnership collaborations

In this case, after disagreement in the research consortium, some of the partners and a researcher from a public research institute are alleged to have used the information and data from their consortium to negotiate with other partners and seek funding from elsewhere based on the ideas which were initially collectively developed by the consortium. In the absence of any guiding/binding contracts (or other instruments of governance), sharing ideas and knowledge freely exposes research partners to their knowledge being used without references to them. When partners share ideas and knowledge into a project proposal, it is assumed that such knowledge is collectively owned. However, it is not clear what partners can and cannot do and timeframes within which any data/information/knowledge cannot be used without prior approval from consortium members.

What are the implications of these findings?

While on the one hand there has been increased emphasis on the need to embrace collaborative interdisciplinary research for sustainable solutions, on the other hand there seems to be very little consideration in addressing issues of intellectual property rights before, during, and after the research phase. From the case studies highlighted above, the common issue identified as an impediment to research collaborations is lack of a binding framework on how to address IP issues. This has direct implications for innovation, publications and future collaborations.

Nearly all public universities and research institutes in Kenya have developed institutional IP policies that define ownership and benefit sharing for inventions made by their staff and students. Similarly, there are publication guidelines (including open access policies) and copyrights policies that define authorship. Most of the universities and public research institutes also have some form of ‘research coordination’, or ‘industry liason’ or ‘technology transfer’ offices set up to manage partnerships and collaborations. However, the major challenge is that most of these policies are ‘institution-specific’ and rarely is any consideration given to cases of collaborations. In most cases these policies are silent on how to handle IP rights when research involves collaborations with other universities and research institutes, thus creating room for uncertainty on how to proceed when faced with the need to commercialise research products.

The cases presented here highlight the need for an overarching policy framework to give researchers the much needed confidence to make their research findings openly accessible and the freedom to collaborate with other parties in pushing the research findings beyond the research shelves and into the market. Such a framework will also allow researchers to leverage other parties’ strengths, for example engaging private sector for different kinds of support including financial, infrastructural and experiential technical expertise.