Where knowledge created in FP projects is capable of industrial or commercial applications, its owner shall provide for its adequate and effective protection, in conformity with relevant legal provisions, including the contract and the Consortium Agreement, and having due regard to the legitimate interests of the contractors concerned.
Valuable foreground should be protected. Protection is not mandatory in all cases, although the decision not to protect foreground should preferably be made in consultation with the other participants, which may wish to take ownership. If valuable foreground is left unprotected, the Commission may take ownership.
According to the Rules for Participation and the standard model Grant Agreement, foreground resulting from the project is owned by the participant “carrying out the work generating that foreground”. In case participants have carried out the work jointly and their respective share cannot be ascertained, such foreground is generally jointly owned.
Maintaining records, such as laboratory notebooks, illustrating the progress of the creation of results is generally the most practical and effective way to easily demonstrate that you carried out the work generating the foreground. In addition, those laboratory notebooks may assist you in case you need to define your share of the work performed in the creation of a jointly owned foreground.
The standard model Grant Agreement (GA) does not establish the obligation to formally inform or consult the other participants before taking measures to protect the foreground (for example by filing a patent application) or before deciding not to protect it. Nevertheless, it is advisable to inform them in advance, so they be in a position to express possible legitimate interests. Furthermore, Article III.28.3 states explicitly that, where a participant does not intend to protect its foreground, it may first offer to transfer it to another participant or even to certain third parties, which may consider it worthwhile protecting such piece of foreground.
The commitment to provide such information and the terms under which it should be done by participants may be included in detail in the Consortium Agreement or other further agreement.
In the proposal phase potential participants develop ideas for joint research activities. Potential project partners should know what knowledge they each bring, what they may need from others, what the state of the art is in the field of the project, and should develop a strategy on protection, use and dissemination of the future results. Such activities require discussions, exchange of information and ideas between the potential participants. Exchanging information with other potential partners is, thus, a necessity while planning a project proposal.
To avoid any eventual misappropriation and use of such information it is therefore advisable to conclude a non-disclosure agreement (also known as confidentiality agreement) before entering in negotiations for the submission of the proposal. This agreement establishes the conditions under which partners disclose information in confidence. Confidentiality obligations may be also included in a so called memorandum of understanding (MoU). This agreement defines the framework of the negotiations between applicants and is generally concluded in the very beginning of the negotiations for submitting a proposal.
Yes. They can.
However prior notice about the intention to transfer the foreground must be given to the other project partners together with sufficient information concerning the future owner so as to permit them to exercise their access rights. Transfer of ownership is generally allowed, as long as the obligations regarding that foreground are passed on to the transferee.
Where a participant does not intend to protect a piece of foreground, it should firstly offer to transfer it to other partners. Whether none of the participants intend to protect foreground, they might transfer it to third parties (the inventor, for instance) which may consider worthwhile protecting it, rather than leaving it unprotected and available for use by competitors (Article 44.2 of the Rules for Participation and Article II.28.3 of the Standard Grant Agreement)
These issues may be covered in detail within the consortium agreement or through specific separate arrangements.
Where foreground is capable of industrial or commercial application, it must be protected in an adequate and effective manner by its owner.
However, in case a participant decides not to do so or to abandon protection, it is advisable to inform the other participants in the project “so that they be in a position to express (and substantiate) possible legitimate interests… These issues may be covered in detail within the consortium agreement or through specific separate arrangements” (in Guide to Intellectual Property in FP7).
The European Commission must also be informed so as to be able to assume ownership of the concrete foreground and take measures to protect it on behalf of the European Union, with the consent of the participant concerned.
Another option that participants may consider is to first transfer the foreground to the other participants or to third parties, along with the associated obligations, who may wish to protect it instead.