Please find attached the link to discussion document issued by the Commission in relation to the General MGA. The preliminary discussion document refers mainly to Finance and financial information. However, it is informative in relation to clarification of contractual terms, such as the Intellectual property clauses.
For Intellectual property the following are noteworthy, the 2008 Recommendations have been well and truly dusted off, and re-emphasised:
1. the Notes emphasise the obligation to take measures to implement the ‘Commission Recommendation’ on the management of intellectual property in knowledge transfer activities (see page 23 – Section 3: Rights and Obligations related to Background (IP) and Results). The recommendation principles were that member states are required: (i) to ensure that all public research organisations define Knowledge Transfer as a strategic mission and (ii) encourage public research organisations to establish in public policies and procedures for the management of intellectual property in line with the Code of Practice set out in Annex 1 (see link to the Commission Recommendations below).
the Link to the 2008 ‘Commission Recommendations on the Management of Intellectual Property in Knowledge Transfer Activities’
2. Article 26.4, is noteworthy (at page 179) whereby as ownership to protect Results, the Agency/Commission,
“may with the consent of the beneficiary concerned, assume ownership of results, ‘to protect them’, if a beneficiary intends up to four years after the period set out in Article 3 – to disseminate results…”
It will remain to be seen how this provision and its exceptions will operate, especially in light of the fact that Universities and commercial parties might not have had sufficient time to assess whether the IP could be commercially exploited – even after the period of 4 years following the contractual period set out in Article 3.
There are many useful Notes in the attached, including some curiosities (such as at Article 26.2, page 178). In relation to joint ownership of IP by reason of joint creation, which (in the view of the writer) begs more questions than it answers. It is arguable that the parties would separately agree ownership regardless of the manner of creation of the IP – an issue that will be further discussed in relation to Article 26.2 – the joint ownership agreements will require closer consideration.
3. At the top of page 180, there is the Note which reads: ‘Best Practice: To avoid or resolve ownership disputes, beneficiears are advised to keep documents such as laboratory notebooks to show how and when they produced the results’ Laboratory Notebooks have been the subject of a previous Blog, however the Notes cover other useful ‘Best Practice’ gems such as this.