Council Regulation (EC) No 72/2008 (repealed)Show full title

Article 23 Intellectual property policy

1. The following rules governing the protection, use and the dissemination of research results are based on Regulation (EC) No 1906/2006 and shall ensure that, where appropriate, intellectual property generated in R & D Activities under this Regulation is protected, and that research results are used and disseminated.

The objective of the intellectual property policy as laid down in this Article is to promote the creation of knowledge and its exploitation, to achieve fair allocation of rights, to reward innovation, and to achieve broad participation of private and public entities in projects.

2. For the purposes of this Article:

(a) ‘information’ means any drawings, specifications, photographs, samples, models, processes, procedures, instructions, software, reports, papers, or any other technical and/or commercial information, know-how, data or documents of any kind, including oral information, other than ‘Intellectual Property Rights’;

(b) ‘Intellectual Property Rights’ (IPR) means any intellectual property rights, including patents, utility models and utility certificates, industrial design rights, copyrights, trade secrets, database rights, topographies of semiconductor products' rights, as well as any registrations, applications, divisions, continuations, re-examinations, renewals or reissues of any of the foregoing, excluding trademarks and trade names;

(c) ‘background information’ means any information which is owned or controlled by a project participant on the effective date of the corresponding project agreement, or in respect of which ownership or control is acquired by a project participant as a result of activities outside the framework of the project;

(d) ‘background IPR’ means any IPRs which are owned or controlled by a project participant on the effective date of the corresponding project agreement, or in respect of which ownership or control is acquired during the term of the corresponding project agreement as a result of activities outside the framework of the project;

(e) ‘background’ means background information and background IPR;

(f) ‘foreground information’ means any information that is generated as a result of the activities conducted within the framework of a project concerned, as specified in the corresponding project agreement;

(g) ‘foreground IPR’ means any IPRs that are generated as a result of the activities conducted within the framework of the project concerned as specified in the corresponding project agreement;

(h) ‘foreground’ means foreground information and foreground IPR;

(i) ‘access right’ means non-exclusive licenses and user rights to foreground or background, which rights shall not include the right to sublicense unless otherwise agreed upon in the project agreement;

(j) ‘needed’ means ‘technically essential’ for the implementation of the project and/or in respect of use of foreground and, where IPRs are concerned, shall mean that those IPRs would be infringed if the access rights were not granted;

(k) ‘use’ means the developing, creating and marketing of a product or process for creating and providing a service as may be further defined in the applicable project agreement;

(l) ‘dissemination’ means the disclosure of foreground by any appropriate means other than that resulting from the formalities for protecting it, and including the publication of foreground in any medium;

(m) ‘project agreement’ means an agreement between project participants setting forth all or part of the terms and conditions that apply between them regarding a specific project, such as a project consortium agreement, which agreement shall include without limitation access rights in accordance with this Article;

(n) ‘transfer conditions’ means financial conditions that have a value lower than fair and reasonable conditions, normally the cost of making the access rights available.

3. Without prejudice of Community competition rules, the intellectual property arrangements in projects shall be governed by the following principles:

3.1. Ownership

3.1.1. The ENIAC Joint Undertaking shall own any tangible and intangible assets created with its own resources or transferred to it for the implementation of the ENIAC Joint Undertaking, unless otherwise specified.

3.1.2. Notwithstanding the provisions above, the ENIAC Joint Undertaking shall not retain any information or IPR created in projects.

3.1.3. Each participant in a project remains the owner of its background. Participants may define the background needed for the purposes of the ENIAC Joint Undertaking project in a written project agreement and, where appropriate, may exclude specific background.

3.1.4. Foreground arising from work carried out under projects shall be the property of the participant(s) carrying out the work generating that foreground according to the arrangements described in the grant and project agreements and the principles laid down in this Article.

3.2. Access rights

3.2.1. Project participants may decide to grant broader access rights than required by this Article. Project participants may define the background needed for the purposes of the project and, where appropriate, may agree to exclude specific background.

3.2.2. Access rights to background shall be granted to other participants in the same project if such background is needed by those other participants to carry out their own work in the project, provided that the owner is entitled to grant such rights. Access rights shall be granted on transfer conditions to be agreed by the project participants concerned, unless otherwise agreed by all participants in the project agreement.

3.2.3. Access rights to foreground shall be granted to other participants in the same project if such foreground is needed by those other participants to carry out their own work in the project. Such access rights shall be granted on a royalty-free non-exclusive and non-transferable basis.

3.2.4. Participants in the same project shall enjoy access rights to background if this is needed for the use of their own foreground of that project, provided that the owner of the background is entitled to grant them. Such access rights shall be granted on a non-exclusive, non-transferable basis on fair, reasonable and non-discriminatory conditions.

3.2.5. Participants in the same project shall enjoy access rights to foreground if this is needed for their own use. Such access rights shall be granted on a non-transferable non-exclusive basis either royalty-free or on fair, reasonable and non-discriminatory conditions.

3.2.6. Subject to the agreement of all the owners concerned, access rights to foreground for the purposes of pursuing further research activities shall be granted to a third party on fair and reasonable conditions to be agreed.

3.3. Protection, use and dissemination

3.3.1. Where foreground is capable of being profitably exploited, its owner (i) shall provide for its appropriate and effective protection, having due regard to its own and other participants' legitimate interests in the project concerned, particularly commercial interests, and (ii) shall use it or ensure that it is used.

3.3.2. Each participant shall ensure that the foreground of which it has ownership is disseminated without undue delay.

3.3.3. All dissemination activities shall be compatible with the protection of IPR, confidentiality obligations, and the legitimate interest of the owners of the foreground.

3.3.4. Prior notice of any dissemination activity regarding foreground, background or confidential information owned by other participants in the same project or other data or information that is amalgamated with the other participants' foreground, background or confidential information, shall be given to the other participants. Within 45 days following such notification, any of those participants may object in writing if its legitimate interests in relation to its foreground or background may be harmed by such dissemination. In such cases, the dissemination activity shall not take place unless appropriate steps are taken to safeguard those legitimate interests.

3.3.5. All publications, patent applications filed by or on behalf of a participant, or any other dissemination relating to foreground shall include a statement that the foreground concerned was generated with financial support from the ENIAC Joint Undertaking. All dissemination activities shall be compatible with the protection of intellectual property rights, confidentiality obligations, and the legitimate interest of the owners of the foreground.

3.4. Transfer

3.4.1. Where a participant transfers ownership of foreground, it shall pass on its obligations regarding such foreground to the transferee including the obligation to pass those obligations on to any subsequent transferee. These obligations shall include those relating to the granting of access rights, and dissemination and use.

3.4.2. Subject to its obligations concerning confidentiality, where a project participant is required to pass on its obligations to provide access rights, it shall give at least 45 days' prior notice to the other participants of the envisaged transfer, together with sufficient information concerning the envisaged new owner of the foreground to permit the other participants to exercise their access rights. Following notification, any other participant may object within 30 days or within a different time-limit agreed in writing, to any envisaged transfer of ownership on the grounds that it would adversely affect its access rights. Where any of the other participants demonstrate that their access rights would be adversely affected, the intended transfer shall not take place until agreement has been reached between participants concerned.

3.5. Project participants in the same project shall conclude among themselves a project agreement that shall lay down the intellectual property arrangements in compliance with this Article.