1 support for the coherent development of policies this document is purely provisional, and only...
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1 Support for the coherent development of policies
This document is purely provisional, and only reflects preliminary options from Commission
services (as of September 2005).
D. Dambois – DG Research
IPR in FP7IPR in FP7
2 Support for the coherent development of policies
General principlesGeneral principles
• As much continuity as possible with FP6• … with improvements/fine-tuning where
necessary• As much uniformity as possible between the
different (mainstream) instruments• The IPR provisions should be as “self-
sustainable” as possible, i.e. a project must be able to run effectively without (extensive) additional arrangements between the contractors
• To be covered separately : Art. 169 and 171 (JTIs)
3 Support for the coherent development of policies
Basic conceptsBasic concepts
Knowledge : same definition as in FP6
Pre-existing know-how (PEKH) : – Inclusion of an explicit limitation to what is
relevant for the project (as in FP5) (= no change in substance given the “need-to” limitation for access rights)
– No longer including information generated in parallel but outside the project (“sideground”) :
• No frequent need to access sideground• Problems regarding exclusion of sideground• Better leave it to contractors to negotiate if needed
– Change name to “background”– For symmetry : replace “knowledge” with
“foreground”
4 Support for the coherent development of policies
OwnershipOwnership
Ownership : as in FP6, each contractor is the owner of the knowledge it generates
Joint ownership(when generated jointly, or in SME actions, etc.) :Introduction of a default joint ownership regime, e.g. :
In the absence of an agreement regarding the allocation and terms of exercising the joint ownership, each of the owners shall be entitled to grant non-exclusive licenses to third parties, subject to both prior notification and to fair and reasonable compensation to the other joint owner(s).
This would facilitate exploitation of jointly owned results ; but different provisions can still be agreed by the participants concerned.
5 Support for the coherent development of policies
Dissemination / PublicationsDissemination / Publications
Currently (FP6) : – Overlapping provisions for dissemination vs.
publications– Requirement to notify the Commission and the other
participants before publications Intentions for FP7 :
– Improve the coherence of dissemination & publications provisions (a publication IS a dissemination activity)
– Remove the requirement to notify the Commission in respect of intentions to disseminate/publish results(while keeping the requirement to notify the other participants, which may object)
6 Support for the coherent development of policies
Transfer of ownership Transfer of ownership (1/2)
Notification to the Commission and other contractors
– Currently (FP6) : before any transfer of ownership(lots of notifications ; variable handling by Commission)
– Intentions for FP7 :• No notification to the Commission, only to the other
contractors (with specific exceptions : Security, …)
• Make it possible, if all contractors agree, to globally authorize transfers from a given contractor to a specifically identified third party(e.g. to its mother company)
7 Support for the coherent development of policies
Transfer of ownership Transfer of ownership (2/2)
If a participant does not intend to protect a piece of knowledge/foreground :
– Currently (FP6) : the Commission can take ownership (before the other participants)
– Intention for FP7 :• Where a participant does not intend to protect
foreground it has generated, it may offer to transfer it to another participant. Where there is no intention to protect the foreground concerned, its owner shall, before any dissemination thereof, inform the Commission, which may take ownership …
8 Support for the coherent development of policies
Access rights Access rights (1/3)
Basic principles :• Currently (FP6) : The Commission can object to
the granting of access rights, and must be notified in specific cases
• Intention for FP7 :• Remove the notification requirement• This would be a minor change, as the FP6
notification requirement only applies where any potential grant of access rights to foreground is not in accordance with the interests of developing the competitiveness of the European economy
9 Support for the coherent development of policies
Access rights Access rights (2/3)
Exclusivity :• Currently (FP6) : A contractor cannot grant (truly)
exclusive licences until 2 years after the end of the project (as other contractors may request access rights), which may be detrimental to the exploitation of results.
• Intention for FP7 :• If all participants agree, they may waive their right
to request access rights to certain foreground or background, if the owner thereof intends to grant an exclusive licence to such foreground or background.
• Need to clarify (in guidelines) that only existing foreground is concerned (cf. competition law : no future results)
10 Support for the coherent development of policies
Access rights Access rights (3/3)
Exclusion of PEKH / background :• Currently (FP6) : Only specific elements of PEKH
can be excluded from the obligation to grant access rights ; this creates problems (e.g. regarding PEKH of other departments of the same legal entity) and is not applied consistently (positive list approach)
• Intention for FP7 :•The participants may define the background
needed for the purposes of the RTD action and, where appropriate, may exclude pieces of background.
several options available to participants : (1) FP6 regime ; (2) FP6 regime limited to the department concerned ; (3) “positive list” approach ; ...
11 Support for the coherent development of policies
Access rights Access rights (FP6)(FP6)
Access rights topre-existing know-how
Access rights toknowledge resulting from
the project
Yes, if a participant needs them for carrying out his ownwork under the projectFor carrying
out theproject
Royalty-freeunless otherwise agreed
before signing the contractRoyalty-free
Yes, if a participant needs them for using his ownknowledge
For usepurposes
(exploitation+ furtherresearch)
On non-discriminatoryconditions to be agreed
Royalty-freeunless otherwise agreed
before signing the contract
12 Support for the coherent development of policies
Access rights Access rights (FP7 – (FP7 – intentionintention))
Access rights to background
Access rights to foreground resulting from
the project
Yes, if a participant needs them for carrying out his own work under the project
For carrying out the project
Royalty-free unless otherwise agreed
before signing the contract Royalty-free
Yes, if a participant needs them for using his own knowledge
For use purposes
(exploitation + further research)
Either royalty-free, or on fair and reasonable conditions to be agreed
More uniformity, more flexibility
13 Support for the coherent development of policies
SME-specific actionsSME-specific actions
No major change in the IPR provisionsfor “research actions for the benefit of specific groups”
Intentions for FP7 (additional provisions) :– If all owners [of foreground] agree, access rights to
foreground will be granted to a RTD performer in order to pursue further research activities, on fair and reasonable conditions to be agreed.This would promote further research.
– Where the specific group benefiting from the indirect action is an SME association and its members need access rights to use foreground, said SME association shall be entitled to sublicense to its members any access rights granted to it.This is useful for the members of SME associations.
14 Support for the coherent development of policies
Assistance servicesAssistance services
Many problems result from a lack of skills regarding the management of knowledge and IPR
Personalised assistance to consortia– Less-experienced FP7 participants could have access (e.g.
two days a year) to the services of specialised consultants.
IPR-Helpdesk– This existing free-of-charge service, will continue to provide
legal assistance regarding IPR issues to FP participants.
Guidelines– The existing (FP6) IPR guidelines will be revised and
expanded into a specific version for FP7.– The existing checklist for consortium agreements
should also be updated for FP7.