Governance structure and Intellectual Property Rights

FP 7 - Fruit Breedomics Consortium Agreement

Junmin REN and Pierre ChilèsLawyers at UCPI – INRA

Governance structure(art. B.2.1.1 of DOW)

General Assembly Executive Committee

European Commission

Stakeholder Platform

Administrative team

Coordinator

Governance structure

• Bodies of Consortium Agreement (CA) (art. 6.1)

• General Assembly: the decision-making body of the Consortium.

• Executive Committee: the decision-implementing body of the Project.

• Coordinator: the legal entity acting as the intermediary between the Parties and the European Commission.

• European Project Manager: assistance to the General

Assembly and the Coordinator.

General Assembly (GA)

• The GA consist of one representative of each Party (art. 6.2) (24+3 invited [WSU + KUL + RCL] =27 persons).

• The ordinary meetings of GA will be at least once a year and the extraordinary meetings upon written request of at least 25% of Members (art.6.3.2.1)

• The quorum is two-thirds (2/3) of Parties present or represented (art. 6.3.3.1).

• Each Party shall have one vote, excluding KUL and RCL (art. 6.3.3.2 ).

• The decisions are made upon simple majority (1/2) with casting vote for the coordinator, in case of equality of votes (art. 6.3.3.4)

• A Party may exercise a veto (only when its Legitimate Interests will be affected, art. 6.3.4.) during the meeting or within 15 days since the sending the draft minutes. In the last case, two conditions shall be completed :

- a new item added to the agenda before or during the meeting- a Party has not attended the meeting.

• The decisions of GA concern the main points of Consortium, as the Content, finances and intellectual property rights and evolution of the Consortium (art. 6.3.6)

Executive Committee (Ex-Com)

• The Ex-Com is composed of the coordinator, the leaders of each workpackage and two persons from IRTA and UNIBO (total : 12 persons). (Art. 6.4.1)

• The quorum is two-thirds (2/3) of its members. The decisions shall be done upon a majority of two-thirds (2/3) (art. 6.4.2),

• The ordinary meetings are held at least twice a year and the intermediate meetings in case of request of the interest of the projects.

• The Ex-Com is in charge of operational management of all the activities of the Project and of financial management of workpackages(art. 6.4.3)

Intellectual Property Rights

• Background (Art. 1 CA): means all information, DataBase or Material:

- held by a Party prior to its accession to this CA or - developed outside the scope of this CA,

As well as copyrights or other intellectual property rights pertaining to such information, DataBase or Material, the application for which has been filed before its accession to this CA or up to the termination of the CA, and which is needed for carrying out the Project or for using Foreground.

All Background to be brought in by a Party is and remains the property of said Party, and shall be given in Attachment 1 of CA.

Attention to Attachment 1 (Art. 9. 1 CA):

- The owner is under no obligation to agree to add its Background to Attachment 1.

- The owner may add further Background to Attachment 1 during the Project by written notice to the Coordinator and to the other Parties. However, it may only withdraw Background from Attachment 1 during the Project, with the unanimous consent of the General Assembly.

- The Parties agree that all Background not listed in Attachment 1 shall be explicitly excluded from Access Rights.

Transfer of Background on Material

• Transfer of Material will be submitted to sign the MTA (Attachment 6) (Art. 9.2.9. CA).

• In the case of transfer of Material included in the National Fruit Collection of UK, the interesting Party notifies to the Coordinator and will sign an other form of MTA. The model of MTA given by the University of Reading shall be not an attachment to the CA.

Foreground

• Foreground (Art. 1 CA): means the results, including information, DataBase and plant material (i.e., pre breeding material, progenies), whether or not they can be protected, which are generated under the Project. Such results include rights related to copyright; design rights; patent rights; plant variety rights; or similar forms of protection.

Article II.26 - Article II.29 of the Annex II of the EC-GA shall apply to Foreground,

Property intellectual right:

- Principle: The Foreground developed through the Project will be owned by the Parties who directly contribute to its creation.

- Types:

Sole ownership : Foreground belongs to one Party only,

Joint ownership: Foreground belongs to more than two Parties. The co-owners shall conclude a contract to define their rights and obligations, and settle the intellectual property management and exploitation rules.

Access Rights

• Access rights concern the Background and the Foreground

- Parties shall inform the Consortium of any limitation to the granting of Access Rights to Background in Attachment 1 or of any other restriction (art. 9.2.2. CA).

- Condition : the beneficiary will show that the Access Rights are Needed for the implementation of the Project or for use of its own Foreground (Art. 9.2.7. CA).

• Access Rights : shall be free of any administrative transfer costs, non-exclusive basis and no rights to sublicense, if not otherwise, made in writing (Art. 9.2.4. and 9.2.6. CA)

Attention: KUL and RCL shall have Access Rights only to Foreground resulting from the WP concerned and in close connexion with the Background they bring to the Project (Art. 9.2.10).

Access Rights for implementation

• Access Rights to Foreground and Background Needed by a Party for the performance of its tasks under the Project shall be granted on a royalty-free basis, unless otherwise agreed for Background in Attachment 1 (Art. 9.3. CA).

Access Rights for Use

Access Rights to Foreground if Needed for Use of a Party's own Foreground including for third-party research and education purposes by third parties shall be granted on fair and reasonable conditions.  Access rights to Foreground for internal research and education purposes shall be granted on a royalty-free basis.  A third party shall not be granted direct Access to Foreground generated by other Parties unless those Parties explicitly agree to it. A request for Access Rights under this agreement may be made up to twelve (12) months after the end of the Project or after the termination of the requesting Party’s participation in the Project.

Access Rights to Background if Needed for Use of a Party's own Foreground shall be granted on fair and reasonable conditions.

Provisions for Software (1/2)

Property of Software (Art. 9.8)

- Software that is a Background of a Party remains the full property of the providing Party.

 - Any further developments of said Software, made under the Project and

done either by the owning Party or by any other Party/Parties, shall be the exclusive property of the providing Party/owner of the Software concerned. (exception to the principle),

 

Access Rights to Software for implementation Access Rights to Software, if Needed for the performance of the Project, shall

be granted on a royalty-free basis and for the purpose and duration of the Project only, unless otherwise agreed for Background in Attachment 1.

 Access Rights for Use  - Towards a Party having not contributed to the development of the Software: Access Rights to Software, if needed for Use of a Party's own Foreground,

shall be granted on fair and reasonable conditions, by a separate written agreement between the Parties concerned.

 

Provisions for Software (2/2)

- Towards a Party having contributed to the development of the Software: Access Rights to Software, for internal research activities of a Party having contributed to Software or if needed for Use of its own Foreground, shall be granted on preferential financial conditions, without right to sublicense and to be laid down in a subsequent and separate written agreement between the Parties concerned.

Notwithstanding, Access Rights to Software, for internal research activities of a Party having contributed through the writing of source code to Software or if needed for Use of its own Foreground, shall be granted on a royalty-free basis, without right to sublicense and to be laid down in a subsequent and separate written agreement between the Parties concerned.

If the new version of the Software arising out of the developments made in the framework of the Project, is commercialized by the owning Party, the other Parties having contributed to this new version of the Software through the writing of source code have the right to obtain a fair compensation from the owning Party’s income generated through the new version of the Software. This fair compensation will be based on the added value of the new developments included in the new version of the Software, which were developed by the contributing Parties.

Publication (1)

- The publication is one main channel of the dissemination of results done under the Project (Art. B.3.2.2.1 of Dow).

- The Parties undertake to cooperate each other in this field (art. 8,3,3 of CA),

- Principles : - the Party can freely publish its Foreground et Background ; - a Party shall not publish Foreground or Background of another Party, without the prior written approval of the latter.

- A prior notice of any publication shall be made 30 days :

- before the publication, or, - in case of scientific manuscripts, 30 days before submission.

- The response on it will be given within 21 days after receipt of the notice. Without the response of a Party, it seems that this Party has no objection.

- An objection to publication is possible, but the objecting Party shall justify:

 (a) its Legitimate interests are compromised by the publication; or (b) the protection of its Foreground or Background is affected.

Publication (2)

- In the case of an objection raised:

the involved Parties shall discuss how to overcome it on a timely basis (for ex, by amendment to the publication and/or by protecting information before publication). The objecting Party shall not unreasonably continue the opposition if appropriate actions are performed following the discussion.

- The rules for relevant data

- Within 3 months of completion of the project, all relevant data should be made available/uploaded to the Fruit Breedomics database.

- Relevant data will be made public two (2) years after the completion, although an individual Party may choose to make its own data available before then with the agreement of all others Parties .

- If a patent is pending in relation to relevant data (or portions thereof) the data will not be made public until the day the patent application is deposited at the patent office.

• No right to use the names, logos or trademarks of another Party.

Signature of the CA

• Please send us your comments and modifications on the 3rd version of CA of March 11th, up to April 8th.

• INRA will send the last version of CA towards 15th April 2011

• The signature of CA begins from the sending day above.

Information for EC-GA:

The Grant Agreement was signed by INRA and sent to the European Commission for signature.

Many thanks

Junmin REN and Pierre Chilès, UCPI – INRA

Thank you very much for your cooperation to this CA.

Wish you have a good meeting and a nice stay in France !