»The project will be implemented in line with the Operational Programme for Human Resources Development 2007-2013, 3rd priorityaxis: Development of human resources and lifelong learning, activity 3.3: Quality, competitiveness and responsiveness of highereducation.« 1
Content
1. Horizon 2020 – Introduction - Legal Basis
2. IPR – Overview
3. Horizon 2020 – Memorandum of Understanding
4. Horizon 2020 – Consortium Agreement
5. Horizon 2020 – IPR Basics
1/5 Introduction - Legal Basis
EU Regulations
Horizon 2020 Regulation of Establishment
Horizon 2020 Rules for Participation
Horizon 2020 Specific Programme
Model Grant Agreements
Guides
registration, validation, LEAR nomination, proposal submission, evaluation, grant agreement preparation etc.
http://ec.europa.eu/research/participants/portal/desktop/en/funding/reference_docs.html#h2020-legal-basis
1/5 Introduction – Legal Basis
1/5 Introduction – Legal Basis
1/5 Introduction – Legal Basis
1. Registration
2. Memorandum of understanding
3. Submission of the project proposal
4. Validation
5. LEAR nomination
6. Evaluation
7. Positive evaluation
8. Consortium agreement
9. Grant agreement
10. Project start
2/5 IPR - Introduction
IPR = Intellectual Property Rights
Creators’ rights arising as a result of human
thinking, resourcefulness and creativity
and constitute intangible assets.
2/5 IPR - Introduction
Copyright
Industrial property
patents
industrial designs
trademarks
Related rights
trade secrets
confidential information
2/5 IPR - Introduction
Copyright rights that a creator has in his work
right is acquired by the act of creation (evidence: notarialdeed, registered letter, any other sufficient evidence)
written texts, articles, data bases, audiovisuals,presentations, painting, sculpture, music, theater etc.,photographs, software, websites, promotional material etc.(in research: valuable texts, notes, drawings, presentations,articles, leaflets, software...)
Property rights: creator has the right to exploit his work inany way; Moral rights: authorship (“paternity”) over work,the only one who can make changes in his work withoutpermit
2/5 IPR - Introduction
Copyright (continued)Ideas themselves cannot be protected in most countries (except e.g. USA), only if expressed somehow.
May be limited in cases of:
use of short extracts for supporting the view
reproduction for private use
reproduction of speech in textbooks
reproduction of works for teaching, judicial purposes etc.
It is always necessary to name the source!
2/5 IPR - Introduction
PatentsProtection title granted for inventions which are:
New (are not part of the state-of-the-art)
Involve inventive step (not obvious to a skilled person)
Industrially applicable
E. g. products, methods, industrial applications...
Discoveries, scientific theories, aesthetic creations, schemes, rules, diagnostic methods etc. cannot be patented! Nor can inventions contrary to public order or morality.
2/5 IPR - Introduction
Patents (continued) Patentee – inventor/s
Start of protection - from the day of application
Priority right - 12 months from application date
Period of protection - 20 years from application date
Benefits: monopoly right of production, use and exploitation (enforcement/claims in case of infringement)
License – giving patent rights (licensing agreements usually)
2/5 IPR - Introduction
Patents (continued)Types of patent protection National (one country, national laws, 20 years) European (40 countries, 20 years)
Unified decision for granting or not, for all member states 30 months from the first application follows a national patent granting phase
Community / Unitary (EU countries except Italy and Spain, European Patent Convention, 20 years) European Patent with Unitary effect, Unified Patent Court Still not in force
International / PCT application (up to 147 countries, 20 years) 30 months from the first application follows a national patent granting phase Retardation of payment of significant fees Reliable knowledge on “patentability”
2/5 IPR - Introduction
Industrial Designs external visible image of the whole or a part of a product
with individual characteristics, particularly line/outline,color, form/patterns, materials /decoration
conditions: new - no identical design has been available tothe public before the filing date; individual - when theoverall impression that produces on an informed userdiffers from the overall impression that any other designproduces
beneficiaries: creator/s or according to contracts national, Community, international protection (priority: 6
months from application) duration: 5-25 years (renewal every 5 years)
2/5 IPR - Introduction
Trademarks points that distinguish the goods or services of a company
from those of another company words, names, illustrations, drawings, lettering, numbers,
sounds trademark cannot be: flags, emblems, symbols, those which
only follow the nature of the product (e.g. shape) or arecontrary to public order or morality / not distinctive /declare only the nature, quality etc.
beneficiary receives the right to use the trademark inproducts, packaging, invoices, letterhead etc.
national, Community (27 countries), internationalprotection
10 years protection, indefinite renewals
2/5 IPR - Introduction
Related rights
Trade secrets – any information that is sufficiently secret to produce economic value
Confidential information – maintaining secret information on expertise, business process, trade secrets etc.
Other rights
plant varieties, names of origin, geographical indications
3/5 Memorandum of Understanding
1. Registration
2. Memorandum of understanding – IPR provision
3. Submission of the project proposal
4. Validation
5. LEAR nomination
6. Evaluation
7. Positive evaluation
8. Consortium agreement – IPR provisions
9. Grant agreement – IPR provisions
10. Project start
3/5 Memorandum of Understanding
- IPR Helpdesk draft: https://www.iprhelpdesk.eu/H2020_MoU
- Memorandum of Understanding and Non-DisclosureAgreement
- defines the framework of negotiations (1. Proposalpreparation, 2. Grant preparation, 3. Consortium agreement, 4.Confidentiality, 5. IPR, 6. Miscellaneous)
- protocols for communication, information exchange, reporting,confidentiality issues, and modifications and conditions forterminating the agreement
- not fully binding in the way that contracts are, but stronger andmore formal than a traditional letter of intent
3/5 Memorandum of Understanding
1.2. The Parties agree that each Party shall not prepare or submitany additional proposal under the same call identified (formalprogramme rules do not limit applications - except for coordinatorswishing to submit multiple proposals on the same call).2.3. The Coordinator shall keep the Parties informed of theprogress of the grant preparation and...make available a copy ofall letters, emails or any other documents that were sent to theEC...2.5. The Parties agree to assist the Coordinator in thepreparation...2.6. Any adaptation or modification concerning the work packagesshall be accepted by the Coordinator only with the prior writtenagreement of the Party concerned.
4/5 Consortium agreement
- Obligatory unless the work programme specifiesotherwise – Art. 41.3. Grant Agreement
- Prepared by the coordinator, negotiated between allpartners, delivered to the EC for inspection only
- DESCA model consortium agreements: http://www.desca-2020.eu/
- MCARD DIGITAL EUROPE model consortium agreement:http://www.digitaleurope.org/Services/H2020ModelConsortiumAgreement.aspx
- LAMBERT model consortium agreements:https://www.gov.uk/government/publications/lambert-toolkit-model-consortium-agreements
4/5 Consortium agreement
DESCA Model Consortium Agreement – an overview1. Definitions
2. Purpose
3. Entry into force, duration, termination
4. Responsibilities of the parties
5. Liability towards each other
6. Governance structure
7. Financial provisions
8. Dissemination
9. Non-disclosure
10. IPR
11. Miscellaneous
4/5 Consortium agreement
DESCA Model Consortium Agreement – an overview
GENERAL ISSUES• Definitions, termination,
responsibilities, liability, miscellaneous, signatures, attachments
GOVERNANCE• Consortium bodies,
meeting procedures,decision making
FINANCE• Consortium plan,
budgeting, payments
IPR• Access rights,
confidentiality, dissemination
4/5 Consortium agreement
GENERAL ISSUESDefinitions- in the Grant agreement (GA) already; Consortium agreement
(CA) only adds a couple more (uses „Project” instead of„Action”)
Entry into Force – Effective DateTermination (surviving clauses apply, as well as previous
obligations) upon completion of the Project, unilaterally (Funding Authority or Consortium, non-
compliance), depending on the GAResponsibilities of the Parties – general (GA in detail)
4/5 Consortium agreement
GENERAL ISSUES
LiabilityNo Party shall be responsible to any other Party for any indirect orconsequential loss provided that such damage was not caused bywilful act or by a breach of confidentiality. (new option!)
Confidentiality4 years (not 5 as in FP7) + responsibility of a party for third parties confidentiality obligationsDisputes- WP leader – Steering Committee – Project Officer - arbitration
4/5 Consortium agreement
GENERAL ISSUESAttachments Attachment 1 (Background included) Attachment 2 (Accession document) Attachment 3 (List of third parties for simplified transfer) Attachment 4 (Identified Affiliated Entities)Applicable lawDESCA model agreement has been drafted based on Belgian law.SignaturesEach Party signs a separate signature page as many times as there are Parties.
4/5 Consortium agreement
GOVERNANCE
- DESCA offers governance options for large (GeneralAssembly and Executive Board) and small projects(only General Assembly)
- Additional bodies: Management Support Teamand/or External Expert Advisory Body
- Quorum (2/3 of the members present), voting (2/3majority)
- Deafulting Party – alleged defaulting party may vote,but no veto rights; declared defaulting party may notvote
4/5 Consortium agreement
FINANCE
- Distribution of the EU contribution – consortium plan
- Responsibility for justification of costs
- Financial consequences of a Party leaving theConsortium
- Budgeting – revised and shortened (nat. accountingprinciples)
- Distribution of payments – coordinator (2 options)
4/5 Consortium agreement
7.2.3 Each Party shall be solely responsible for justifying its costswith respect to the Project towards the EC. Neither the Coordinatornor any of the other Parties shall be in any way liable orresponsible for such justification of costs towards the EC.
7.3 A Party leaving the Consortium shall refund all payments it hasreceived except for the amount of contribution accepted or will beaccepted by the EC.
7.4 A Defaulting Party shall, within the limits specified in thisConsortium Agreement, bear any additional costs occurring to theConsortium in order to perform the Defaulting Party’s tasks.
4/5 Consortium agreement
INTELLECTUAL PROPERTY RIGHTS
DESCA model consortium agreement follows the structure of the GA (not in exact order, but by subject):
8. RESULTS 9. ACCESS RIGHTS
10. NON-DISCLOSURE
Joint ownership, Transfer of
Results, Dissemination
Background included, Principles,
Access rights for implementation,
exploitation, affiliated entities
etc.
4/5 Consortium agreement
INTELLECTUAL PROPERTY RIGHTS
Joint ownership
Unless otherwise agreed (Option 1):
- each of the joint owners shall be entitled to use their jointly owned Results for non-commercial research activities on a royalty-free basis, and without requiring the prior consent of the other joint owner(s), and
- each of the joint owners shall be entitled to otherwise Exploit the jointly owned Results and to grant non-exclusive licenses to third parties (without any right to sub-license), if the other joint owners are given: (a) at least 45 calendar days advance notice; and (b) Fair and Reasonable compensation. (Option 2: no prior notice, no compensation)
4/5 Consortium agreement
INTELLECTUAL PROPERTY RIGHTS
Dissemination of another Party’s unpublished Resultsor Background
A Party shall not include in any dissemination activityanother Party's Results or Background withoutobtaining the owning Party's prior written approval,unless they are already published.
4/5 Consortium agreement
INTELLECTUAL PROPERTY RIGHTS
Access Rights – basic principles
- granted on a non-exclusive basis, expressly exclude any rights to sub-licensing unless otherwise agreed herein, and -save in exceptional circumstances - shall be made free of any transfer costs
- Results and Background shall be used only for the purposes for which Access Rights to it have been granted and only for as long as is necessary for the specific purposes.
- the Parties agree that the specific Background listed in this Consortium Agreement shall be explicitly excluded from Access Rights.
5/5 IPR Basics in Horizon 2020
Results: any tangible or intangible output of the project,whatever its form or nature (e.g. cell lines or prototypes),including any attached rights (e.g. patent or database rights).
Background: any data, know-how or information, whatever itsform or nature, tangible or intangible, including any rights: held by participants prior to their accession to the grant
agreement, needed to implement the project or to exploit its results,
and identified by participants in any manner in a written
agreement.
5/5 IPR Basics in Horizon 2020
Exploitation: use of results (i) in further research (outside theproject), (ii) in developing, creating or marketing products,services or processes, or (iii) in standardisation activities.General rule: each participant receiving Union funding must useits best efforts to exploit its results, either directly or indirectly.
Dissemination: public disclosure of results by any appropriatemeans (other than resulting from protection or exploiting theresults), including by scientific publications in any medium.
Access rights: rights to use results or background. Access rightsfor the Union: royalty-free access for policy related purposes toresults generated with Union funding (strictly limited to non-commercial and non-competitive use).
5/5 IPR Basics in Horizon 2020
Protection: if possible, reasonable & justified, each participantmust appropriately protect its results, taking into account alllegitimate interests (if not – notification to the EU, EU mayprotect it).
Dissemination: each participant must disseminate its results assoon as possible, subject to restrictions due to the protection ofresults, security rules or legitimate interests.Prior notice: before dissemination, a participant must notifyother participants which may object if their legitimate interestswould suffer significant harm.Union support: any dissemination (also patent applications)must indicate Union financial assistance (for visibility andtraceability reasons).
Thank you for your attention!
Sources:1. DESCA 2020 launch event presentation, 24 March 20142. Annotated Model Grant Agreement, V.2.0., 30 March 20153. European IPR Helpdesk - Memorandum of Understanding4. European IPR Helpdesk – Intellectual Property in Horizon 2020 – overview with a
focus on comparison with FP75. European IPR Helpdesk – IP Management in Horizon 2020: at the proposal stage6. European IPR Helpdesk – Your Guide to IP in Horizon 2020
Disclaimer: Any data given in this presentation are to be used for informational purposes only. Recommendations in this presentation do not substitute official sources of information. The Agency for Mobility and EU Programmes accepts no legal liability for the content of this presentation, nor for any actions taken on the basis of the information provided.
