Don't be a fool - why PCTs should think about IP before 1 April 2013

With the impending dissolution of primary care trusts the main focus in the media has been on patient care and ensuring that this does not suffer during the change process. Little is said about intellectual property, although this can also impact on patient care. For example, a PCT might own intellectual property in bespoke software which helps manage patient records or a commissioning programme. Other rights which a PCT may have accumulated include, for example, intellectual property in relation to goods or services, brand names and trade marks.

As statutory transfer orders will transfer the PCTs' assets to CCGs it is possible for a PCT to do nothing about its intellectual property rights and simply allow it to be transferred to the CCG. However some of the intellectual property rights could potentially be of significant commercial value for the NHS on a national level which could be better realised by transferring it prior to dissolution; just because a CCG is taking over all other assets and responsibilities of the PCT does not necessarily mean that it will be best placed to exploit or manage the intellectual property.

PCTs should therefore take stock of what intellectual property rights they own or have a share in well in advance of their dissolution. This exercise will allow them to determine whether the intellectual property has a wider commercial significance for the NHS or whether it is only applicable locally. Once the PCT has determined which rights would be better placed outside of the CCG it could transfer the rights to one or more of the following entities: 

  • the NHS Commissioning Board if the intellectual property has national significance or could be rolled out nationally;
  • the NHS Shared Business Services;
  • a charity or social enterprise;
  • a foundation trust; or
  • a company incorporated specifically for that purpose.

Which of these options will be best in the circumstances will depend on the intellectual property being transferred and it is advisable that PCTs seek independent legal advice. The legal advisors will also be able to assist in ensuring that all necessary formalities are met for the intellectual property to transfer.

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