Infrequent issues may include approval of the material by the Biosafety Office (if approval from that office is required), the lack of urgency on the part of the provider/recipient, or the availability of approving officials to sign the document. However, the primary reason for delays is that the parties do not agree on the terms of the MTA. It sometimes takes weeks or months for the parties to negotiate terms that are mutually acceptable. This is especially true when the provider/recipient is a for-profit company. In rare instances, the parties may not be able to come to terms that are mutually agreeable and the material may not be available to UT or, in the case of outgoing material, the other party. Terms that are likely to extend the negotiation period include:
- Indemnification/Liability – UT, an agency of the State of Tennessee may not agree to indemnify or hold harmless third parties (i.e., insure the other party against losses). UT may only agree to be liable for its own actions to the extent allowed by law. In rare instances, the providing institution will not transfer material if they cannot be indemnified (protected) for UT’s use of the material.
- Choice of Law/Jurisdiction – As a state institution, UT cannot agree to have the MTA governed by another state’s law (or even federal law, except in rare instances) and can not agree to the jurisdiction of another state or federal courts. UT may agree to remain silent on the choice of law, which usually resolves the issue.
- Arbitration – Again, UT is an agency of the state and may not agree to arbitration. To resolve this, sometimes parties agree to remain silent on arbitration, but sometimes this can be a deal breaker.
- Definition of material that includes all derivatives – Ideally, the MTA defines material as the material itself and any unmodified derivatives of the material. However, some providers will request that they own all modified derivatives of the material, which may be an invention. The investigator could be prevented from using his or her own research results in further research, transferring them to other organizations, meeting obligations to research sponsors or funding agencies, or ensuring that the results are made public. By agreeing to such a definition, UT could put itself in the position of violating any applicable funding agreements, including both federal and non-federal grants or contracts.
- Intellectual property provisions – Some incoming MTAs state that the provider owns results and inventions arising out of the research (this usually happens with for-profit companies). As an academic institution and recipient of external (including federal) funding, UT may not agree to such terms, which generally conflict with the funding agreements. Also, if providers assert ownership over results and inventions, the investigator may be prevented from using results in future research. This could restrict the investigator’s ability to interact with a future sponsor or may prevent UT from conveying rights in inventions to future licensees.
- Publication restrictions – Some MTAs require that the investigator obtain written consent from the provider to publish or the provider may request co-authorship. Such terms violate academic freedom and may conflict with funding agreements and journal requirements. Publication restrictions may also affect the investigator’s ability to report results to sponsors or funding agencies. Sometimes delays in publication may be negotiated, provided that such delays are not excessive, are acceptable to the investigator, and are not inconsistent with funding agreements.
- Illegal aliens – Pursuant to a new state law, UT must require providers of material to attest that they shall not knowingly use illegal aliens in the performance of the contract (the MTA). This applies to all international providers and private domestic providers. Some providers do not wish to provide such an attestation.