IPRs represent the bundles of property rights over intangible knowledge products, such as copyrights on documents and software, patents on technical inventions, and trademarks for branding. It means patents, inventions (whether or not patentable or capable of registration), trademarks, service marks, copyrights, topography rights, design rights and database rights, (whether or not any of them are registered or registerable and including applications for registration, renewal or extension of any of them), trade secrets and rights of confidence, trade or business names and domain names and all rights or forms of protection of a similar nature which have an equivalent effect to any of them which may now or in the future exist anywhere in the world.
Results is a term that covers more than just IPR rights. Results includes any tangible or intangible output, such as data, knowledge or information, that is generated in the PCP (meaning in activities described in the PCP contracts), whatever its form or nature, whether or not it can be protected, as well as any rights attached to it, including IPRs (foreground IPRs). Note that results equals foreground and, therefore, do not include background (generated before the PCP) or side ground (generated during the timespan of the PCP but not in the activities covered by the PCP).
In PCP, procurers do not reserve the R&D results exclusively for their own use. Each R&D provider that generates results in the PCP owns the IPRs attached to its own results (together with the responsibility and the costs for protecting those IPRs). The public procurer obtains license free rights to use the R&D results for its own use, and the right to require participating R&D providers to grant non-exclusive licenses to third parties to exploit the results under fair and reasonable market conditions without any right to sublicense.
A call back provision ensures that if an R&D provider fails to commercially exploit the results within a given period after the PCP as identified in the PCP contract (minimum 4 years in the case of Horizon 2020 funded PCP projects) or uses the results to the detriment of the public interest (including security interests), it shall transfer any ownership of results to the procurers upon the request thereby.
As the PCP procurement does not procure the generation of background or side ground, the procurers obtain access to background and side ground of R&D providers under fair and reasonable market conditions, except for background needed by the procurers to implement their own tasks during the PCP (this is obtained license free). Procurers also retain the right to publish information – after consultation with each participating R&D provider – public summaries of the results of the PCP, including information about key R&D results attained and lessons learnt by the procurers during the PCP (e.g. on the feasibility of the explored solution approaches to meet the procurers’ requirements and lessons learnt for potential future deployment of solutions).
Details should not be disclosed that would hinder application of the law, would be contrary to the public interest, would harm the legitimate business interests of the R&D providers involved in the PCP (e.g. regarding IPR protected specificities of their individual solution approaches) or would distort fair competition between the participating R&D providers or others on the market. For the public procurers, this approach safeguards a future competitive supply chain and cheaper prices for the R&D and resulting products as the participating R&D providers can commercialise the results of the PCP – including the resell of the developed solutions – to wider markets.