Industry IP lobbyists attack any openness in Horizon research 2020 programme

The Following Questions Relate to IP Issues and Have Been Provided by IP experts of EARTO Members

European Association of Research and Technology Organisations

rue Joseph II 36-38, B-1000 Brussels +32-2-502 86 98 secretariat@earto.eu www.earto.eu

In the interests of clarity, will the Commission introduce a definition of “exploit” (cf. “use” in FP7)?

Does the Commission agree that Art. 3 should state clearly by whom the information should be kept confidential?

Does the Commission agree that Art. 38 (2), 1st subparagraph, is internally inconsistent inasmuch as joint ownership may also exist where the shares of work CAN be ascertained (it is then rather a question of whether it is possible to separate the jointly developed results for the purposes of protection)?

Will the Commission accept to modify Art. 38 (2), 2nd sub-paragraph, to contain a statement on OWN use (without granting licences) in order to make clear that the parties have the freedom to do so.

Will the Commission provide clarifications concerning Art. 40:

  • What exactly is envisaged regarding additional exploitation obligations?

  • In view of the potential negative impact an obligation to provide access to data may have on industry participation, what is the practical scope, and limits, of the proposed open access policy?

  • Does the Commission accept that open access should not become an obligation in the grant agreement?

  • Will the Commission ensure that the obligation to report on exploitation- and dissemination-related activities will be limited in time (e.g. not be an open-ended obligation still in force in 50 years time!).In practice, it might be useful to foresee that participants provide information on exploitation on request, thus assuring that it ends up with a central contact point within the Commission rather than the Project officers who were in charge of the project years ago.

Article 40 (3) (protection of results) stipulates that a party may only refuse consent if it demonstrates that its legitimate interests would suffer significant harm.

  1. Are these rights limited to situations where the participant has received Union funding specifically for the (initial) protection of results, like a patent application, or are these rights applicable to all results gained by Union funded research?

  2. Where the Commission has assumed ownership pursuant to Article 40.3 would the Commission consider the option of (per default) granting a non-exclusive license to the relevant participant(s)?

Will the Commission modify Art. 41 (transfer and licensing of results) inasmuch as the duty to inform the other participants of a transfer is not appropriate where a participant intends to transfer OWN results. The notification requirement and objection possibility have a huge potential to lead to blockades. In such case, the obligation to safeguard the other parties’ potential access rights is sufficient.

Will the Commission also confirm (Art. 41 (2))that the condition that any “additional exploitation obligations” are complied with can only relate to the participant who owns the results.

Would the Commission agree that Art. 43 (4) which on its own puts a strong emphasis on royalty-free conditions, should be balanced by a definition of “fair and reasonable” conditions, as in FP7, and which:

  • should have a stronger tendency towards financial terms as the standard case and

  • should NOT contain the statement “can, for access rights, be royalty-free” , which is not compatible with State Aid framework provisions and which, more generally, sends a wrong signal regarding the value and exploitation of intellectual property?

Will the Commission accept to delete Art. 43 (4) on the grounds that any mention of fair and reasonable conditions must NOT contain reference to royalty-free conditions (which is not compatible with State Aid framework provisions and which, more generally, sends a wrong signal regarding the value and exploitation of intellectual property) and to insert a definition of fair and reasonable conditions in Art. 2.

Will the Commission clarify Art. 45 (3)by modifying same conditions” for access to affiliates to read “fair and reasonable conditions”.

Does the Commission accept that Art. 46 (1) (access rights for the Union and the Member States) makes exploitation more difficult since it hinders exclusive licensing, and can discourage future activities, also because there is no time limit and one needs to keep track for years and years of the possible restrictions?

Does the Commission accept that Art. 46 (2) (access rights for the Union and the Member States) makes exploitation more difficult since it hinders exclusive licensing and is excessively broad in referring to a “risk of” rather than the “existence of” market failure?

Will the Commission render Art. 47 (special provisions for particular actions) more precise? The current text vaguely leaves manifold issues to the Grant Agreement for the particular instrument (e.g., for the SME instrument, whose details are not known yet). Will the Commission include at least a basic statement for each instrument?

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