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 developed prototypes or first products, 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 is allowed to protect and own the IPRs attached to its own results (together with the responsibility and the costs for protecting those IPRs). The public procurer obtains, both for himself and for any contractor of the public buyer in ongoing and future contracts, license free rights to use, including to practice and where needed modify, the R&D results for the purposes of the procurer. Obtaining these rights also for contractors is important to prevent supplier lock-in in later procurements that may follow after the PCP to buy larger commercial volumes of the developed solutions, or to modify and maintain the solutions.
The procurer also obtains additional rights that he may need in certain exceptional situations:
In emergency situations where PCP contractors are unable to satisfy subsequent demand for the results of the R&D procurement contract on the Union market, the public procurer shall have the right to either grant himself or require participating R&D providers to grant non-exclusive licenses to third parties to commercially exploit the results under fair and reasonable market conditions without any right to sublicense.
Where PCP contractors fail to commercialise their R&D results within a given period after the PCP as identified in the PCP contract (minimum 4 years in Horizon Europe projects), the public procurer shall verify first with the PCP contractor if he has legitimate reasons for that. Where PCP contractors had legitimate reasons for their failure to commercialise the R&D results, the public procurer should first examine if PCP contractors could still commercialise the results if given a reasonable amount of extra time. If not, or if the results were abused against the public interest, the public procurer could again resort to licensing the results as described above or, if that is insufficient, he could invoke a call back provision in the PCP contract to require the PCP contractor to transfer any ownership of results to the procurers . Whether or not the public procurer shall provide fair and reasonable compensation to the PCP contractor for the licensing or call back of the R&D results, depends on whether the PCP contractor had legitimate reasons for not commercialising the results. Important side note: It is not possible to require PCP contractors to transfer the ownership of copyright (the so-called moral rights) to the procurer, as copyright legislation automatically allocates the moral rights to the creator at the moment the work is created and they are unalienable.
As the PCP procurement does not procure the generation of background or side ground, the procurers should 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 can 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).
Public procurers should not be disclose information that would hinder application of the law, would be contrary to the public interest (e.g. security sensitive data, confidential information of persons that participated in testing activities), would harm the legitimate business interests of the R&D providers involved in the PCP (e.g. regarding confidential or IPR protected specificities of their individual solution approaches etc.) or would distort fair competition between the participating R&D providers or others on the market. Likewise, PCP contractors should not disclose information provided to them by the public procurer that he has designated as confidential information.
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.