Industry and academia can share research facilities and services through the Berkeley Research Infrastructure Commons (RIC). The Berkeley RIC Facuty Lab eXceptional-use for Innovation & Entrepreneurship (FLEXIE) program is an extension of UC Berkeley RIC capabilities. The FLEXIE program (formerly the SSUFIE program) enables early stage (pre-product sales) startup companies affiliated with UC Berkeley to temporarily conduct new product R&D in faculty labs—under certain conditions and rigorous oversight. The conditions enable the university to:
For years, many UC Berkeley-affiliated startups have wanted to leverage the special capabilities in UC Berkeley faculty labs in order to conduct translational R&D that leads to new products, companies and industries that solve societal problems and/or address technological opportunities. Likewise, many faculty members have wanted to allow this promising translational research. However, the university didn’t have a way to address the many issues associated with allowing commercial R&D in faculty labs.
In early 2017, Cyclotron Road (the research accelerator at the Lawrence Berkeley National Lab) expressed interest in expanding from the national lab to the adjacent UC Berkeley campus. The UC Berkeley Vice Chancellor of Research (VCR) wanted to explore that opportunity. So, the UC Berkeley Office of Intellectual Property & Industry Research Alliances (IPIRA) launched an initiative to try to develop a program that would enable startups associated with Cyclotron Road (and the other startup accelerators in UC Berkeley’s innovation and entrepreneurship ecosystem) to temporarily use faculty labs for new product R&D in ways that would address all the issues. IPIRA developed a program that leverages three existing university programs: the core user facility program, visiting industrial fellow program, and visiting scholars program. In July 2017, the Research Policy, Analysis and Coordination team in the University of California Office of the President approved a 2-year piloting of the resulting FLEXIE, which at that time was referred to as the Shared Special User Facility for Innovation & Entrepreneurship (SSUFIE) program. In July 2019, IPIRA completed a review report of the SSUFIE pilot and the VCR agreed to continue the program.
In general, there are three agreements that for-profit companies can use to leverage UC Berkeley resources. Companies can enter into: (1) sponsored research agreements (which cover industry consortia and individual companies including via SBIR and STTR grants), (2) facility use agreements, and (3) RIC FLEXIE agreements.
The first major difference between the three agreements is that, whereas any startups and established companies can use sponsored research and facility use agreements, the FLEXIE agreement is only for startups that are: (1) early stage (pre-product sales), and (2) affiliated with UC Berkeley’s startup accelerators as listed at the campus’s begin.berkeley.edu startup portal.
For startups that meet those two criteria, here’s the top-level decision tree for which of the three agreements to use.
1) If the startup activity is collaborative research with UC Berkeley people, then the startup should enter into a sponsored research agreement. Sponsored research agreements are established through UC Berkeley’s Industry Alliances Office which is under the Office of Intellectual Property & Industry Research Alliances (IPIRA).
2) If the startup activity is not collaborative research, and if it only uses a UC Berkeley shared user facility (e.g. the QB3 Garage in Stanley Hall, the NanoFab, etc), then the startup should enter into a facility use agreement with that user facility.
3) If the startup activity is not collaborative research, and not solely using a shared user facility, then the startup should enter into a FLEXIE agreement via IPIRA.
Startups that want to discuss the three approaches are encouraged to contact IPIRA via our concierge service. A chart for navigating the three approaches is shown at the bottom of this page.
For early stage startups that are affiliated with UC Berkeley’s accelerators, the first step to leveraging the FLEXIE program is to find a faculty lab that: (1) has appropriate capabilities, and (2) is led by a faculty member who is amenable to the FLEXIE program. The FLEXIE program is relatively new, so IPIRA staff can help explain the program to faculty.
After a startup finds a lab that meets the above two criteria, then the startup contacts IPIRA to obtain the latest version of the FLEXIE agreement (it regularly gets tweaked to refine its execution). Next, the startup completes: (1) Exhibit A to describe the startup and visiting entrepreneurial fellow (VEF) who will participate in the FLEXIE on behalf of the startup; and (2) Exhibit C to describe the startup VEF’s scope of work in the lab under the FLEXIE agreement. Note that the FLEXIE agreement is non-negotiable. Therefore, the startup doesn’t need to incur the time or expense to negotiate the agreement.
Next, the faculty leader of the lab (or their lab manager) completes Exhibit B of the FLEXIE agreement. Exhibit B describes the lab, and the fair market value rates.
IPIRA can help complete the 3 exhibits above (especially establishing FLEXIE fair market value rates in Exhibit B). Additionally, IPIRA leads the completion of Exhibit D of the FLEXIE agreement. Exhibit D confirms the 6+ required approvals and notifications – which include: the FLEXIE's corresponding faculty leader, department chair's office, and dean's office, as well as the campus's Space Assignment & Capital Improvements (SACI) office, UCOP capital planning office (for tracking of commercial use), and a fair market value review. Also, if appropriate, Exhibit D includes approvals by the EH&S office, conflict of interest committee, and animal use committee.
The FLEXIE agreement has novel intellectual property (IP) provisions called, joint ownership with university commercial forbearance. The FLEXIE agreement is a special pathway for startups to use university resources that aren’t intended for ongoing commercial use (in contrast to UC resources that are designated as core user facilities). To account for this exceptional privilege, IP solely invented or authored by startup employees under the FLEXIE agreement is jointly owned by the startup and the university. However, the university agrees to forbear from commercially licensing the IP, and can only use the IP for research, education and non-profit purposes. Furthermore, the startup can lead the patent prosecution, and can use the IP without accounting to the university. In summary, the startup has exclusive commercial rights without the need for a university license.
In contrast to FLEXIE agreements, facility use agreements are for the commercial use of university resources that are set-up to be regularly used by companies (and companies pay user fees for the commercial use). Therefore, under a facility use agreement, IP solely invented or authored by a company's employees, is solely owned by the company.
For IP developed under sponsored research agreements, ownership follows inventorship and authorship. If the sole inventors or authors are UC employees, then the university owns any associated IP. Often, sponsored research agreements stipulate that the university will give the corporate sponsor the first right of offer to exclusively license the associated IP rights.
Under the FLEXIE agreement, startups pay the university fair market value (FMV) fees plus 20% overhead for use of the specific resources described in the FLEXIE agreement's scope of work (Exhibit C). During the pilot program, FMV is typically proposed by the FLEXIE faculty leader of the lab (or delegated to their lab manager). IPIRA then researches comparables and/or amortized costs to review the FMV proposal. Note that the FLEXIE program is not intended as a cheap way for startups to use UC Berkeley facilities. Accordingly, to maintain transparency and auditability, all the FMV research and analysis is included in the FLEXIE agreement’s Exhibit C. For example, an April 2018 FLEXIE agreement consisted of a startup using a Zetasizer device in a faculty lab. IPIRA research on the web revealed two universities that published Zetasizer pricing to industry. Accordingly, IPIRA documented and used those two data points as comparables for establishing the UC Berkeley FMV in the FLEXIE agreement.
The FLEXIE program is novel, and accordingly, the campus has been steadily refining its process for establishing FLEXIE agreements. As of July 2018, FLEXIE agreements that don't require EH&S, COI, or animal use approval have been completed in a few weeks. FLEXIE agreements that require EH&S, COI, and/or animal approval also require corresponding plans and committee reviews. Consequently, they can each take more than 2 months to complete. However, often those approvals can be pursued concurrently. The campus groups may charge fees for some or all of these reviews.
Here's a check-list for determining whether EH&S, COI, or animal use plans, reviews, and approvals are required:
1) An animal use plan along with animal use committee review and approval are required for any FLEXIE that uses animals.
2) A COI management plan along with COI committee review and approval are required for a FLEXIE in which any of the following relationships apply to the startup and: (a) the FLEXIE's faculty leader, (b) any UC employee who is under the supervision of the FLEXIE's faculty leader, or (c) any family member of the FLEXIE's faculty leader:
3) An EH&S plan along with EH&S committee review and approval are required for a FLEXIE that use any of the following:
4) As of May 2021, the FLEXIE program hasn't been expanded to allow for a FLEXIE in which a startup's Visiting Entrepreneurial Fellow (VEF) is concurrently employed at UC Berkeley as a professor, grad student or postdoc.
For more information about the FLEXIE program, or to get started, contact IPIRA.
In mid 2019, UC Berkeley conducted a review of the FLEXIE program, formerly known as the Shared Special User Facility for Innovation & Entrepreneurship (SSUFIE), program's 2-year pilot period, which was published as a 3-page report with a 30 page collation of unedited survey results.