Not very NICE

The IPKat was happy to read this morning that the Court of Appeal has ordered NICE (the UK body that determines which drugs the National Health Service will prescribe on grounds of, amongst other things, cost effectiveness) to grant the pharmaceutical manufacturers Esai and and Pfizer access to information on how it reached its decision on whether to recommend the prescription of the Alzheimer's drug Ariept. The IPKat was less happy to find out that one of the reasons that NICE gave for not releasing the full data was 'intellectual property rights'.

It seems that NICE made the Excel spreadsheet containing the relevant data available to the drug companies, but only in read-only format. This meant that the drug companies could not fully execute the calcuations that NICE had based its assumptions on. The spreadsheet and associated report had been created by an independent advisory body, the Southampton Health Technology Assessment Centre (SHTAC) and NICE argued that the report remained the intellectual property of SHTAC and so could not be fully disclosed.

The IPKat was rather surprised by this. What intellectual property? There are no rights in mathematical formulae so was this merely a matter of copyright in the wording of the report?

In fact, confidencentiality was the culprit. Copyright was raised at one stage, but then droped. Instead, NICE argued that it had a duty of confidence to SHTAC under the terms of the conditions on which the report was commissioned.

The Court of Appeal said that this was flawed (full text here).
1. On the wording of the contract between NICE and SHTAC, the only obligation of confidence was as to the 'business and affairs' of the respective parties. This did not cover the model.
2. (In the words of the court) 'It would, as Mr Pannick submitted, be very surprising if a model commissioned and paid for by the Secretary of State for the purposes of NICE's appraisal process were subject to obligations of confidentiality preventing disclosure of the fully executable version to consultees'.
3. If it was OK to release the read-only model and the fully executable model didn't contain further information, it was hard to see why the fully executable model should be confidential.

The IPKat thinks this is quite right. It would be highly surprising if a public body entered into confidentiality agreements for commissioned research which stopped the relevant members of the public gaining access to the methodology behind the research. It's this sort of argument that gives IP a bad name.