Nuclear Fusion: A Case Study in the need for a cohesive IP Strategy at the forefront of science

Following on the continued success in inertial confinement research reported from the National Ignition Facility (NIF) at the Lawrence Livermore National Laboratory (LLNL), the end of 2023 saw a slew of announcements from multiple governments and government agencies (including U.S. Climate envoy John Kerry’s statement at the UN climate talks in Dubai, reported here) expressing their interest, and importantly their backing for progressing towards a commercially viable fusion program.

Alongside this government interest, there is significant funding. The UK government launched the Fusion Futures Programme, a £650 million scheme specifically aimed at commercialising fusion energy through the creation of training roles, and development of the infrastructure needed for private fusion companies. This funding is in addition to £700 million of funding that has already been allocated to UK fusion energy programmes (including both academic and commercial programmes) from 2022 to 2025.

Less than a month after launching the Fusion Futures program, the UK government and the US government announced a strategic partnership in November 2023 that “aims to recognise and develop the complementarity between UK and US resources and facilities in fusion, including those in academia, industry and government”.

This partnership was swiftly followed by the announcement of the IFE-STARFIRE hub in the US, led by Dr Tammy Ma at LLNL. The STARFIRE hub is an archetypal example of the need for collaboration between government, academia, industry, and even non-profits when breaking new ground: with seven universities, four US national labs, a German national lab, three non-fusion focused commercial entities, a philanthropic organisation and three private inertial fusion energy companies all collaborating to form the hub.

With such extensive collaboration needed, it is vital that each and every partner is able to accurately identify and quantify what they bring to the table in terms of expertise and experience to contribute to the realisation of the end-goal of commercial fusion energy. A key part of this must include a cohesive IP strategy including what areas of IP are owned by which collaborators, which parts are shared amongst the collaboration, how developments will be credited to individual inventors and researchers, and agreements on how the IP will be licenced, distributed and (if necessary) enforced. 

Historically, US companies have been more prolific with their filing strategies across the majority of industrial sectors than their UK counterparts. As a consequence, US entities can tend to bring more in the way of tangible IP assets to the start of a collaboration. If UK companies want to maintain an edge over their competitors abroad, it’s therefore vital that they start adopting a more comprehensive strategy for their IP. These considerations aren’t limited just to “pure” IP concepts – UK companies can benefit from R&D tax credits and a cut in corporation tax through the Patent Box if they can demonstrate their profits exploit patented inventions so that they can retain more of their profits (meaning that more money is available to invest in further R&D).

These considerations don’t just apply to nuclear fusion, but to any industry or sector where collaboration across governmental, academic, and industrial sectors comes to the fore. In any field where large-scale collaboration (and large-scale government funding) becomes a necessary step on the way to achieving a commercial end-goal, the nature of such collaborations requires a holistic approach to the IP landscape, with a deep appreciation for both the academic and commercial contexts that apply to the technology.

This may necessitate creative and flexible approaches to IP, well beyond a standard file-prosecute-enforce/licence strategy. For example, attribution of ideas and developments can be just as important (if not more so) to some of the collaborators as the more traditional commercial considerations of licensing and assignment. As such, it’s critical that all collaborators work together with both an appreciation of what their collaborators have and will contribute, and a clear and complete understanding of the commercial, academic, and philanthropic goals of each of their collaborators. The interplay between each partner’s contributions and aims can forge links and relationships between the collaborators that endure beyond the end of the collaboration as the result of any IP agreements, so getting the IP strategy right from the outset couldn’t be more important.