Open Science vs. IPR in Horizon Europe – which one wins?

After a few months delay earlier this year, the Horizon Europe framework programme for research and innovation is finally under way, with many calls already launched and open for submission, and even more scheduled for the next few months.

The IP Helpline team is, accordingly, starting to receive more and more questions regarding IP in Horizon Europe. 

To answer this, it is essential to keep in mind that in Horizon Europe (including MSCA), grant beneficiaries have the obligation to protect their results – see Annex 5 to the model GA for Unit Grants incl. MSCA (page 88 onwards).

On the other hand, Open Science practices, while compulsory in Horizon Europe, are not incompatible with this obligation… even though they may seem so. Indeed, the open access obligation (for example) is NOT an obligation to publish. Simply, if/when fellows publish a scientific article, it will have to be in open access.

In other words, Open Science obligations in Horizon Europe are NOT a general obligation to disseminate. They are even less an obligation to surrender IP rights, and for this reason should not be construed in opposition to IP protection. The dissemination of Horizon results can be postponed to allow the appropriate protection of results beforehand – see the grant agreement clauses on dissemination (annex 5 to the MGA for Unit Grants, pp.94-95) according to which the dissemination obligation is made subject to any restrictions linked to the protection of intellectual property.

This is confirmed by the European Commission in the annotated model grant agreement for Horizon Europe (see page 153).

To sum up: not only is it possible for fellows and beneficiaries to protect their results first (e.g. via a patent filing), but it is also necessary to ensure compliance with the obligation to protect the project results. This is something that can be explained in the proposal – that the strategy is, first, to secure IP protection, and that once this is completed, dissemination obligations will be fulfilled, including via open access if publications are foreseen.

Finally, keep in mind that the specialised information service OpenAIRE is available for all your questions about Open Access, Open Data and Open Science obligations and policies. This service offers many useful resources, FAQs, and even a Helpdesk to ask your questions to.

(Fonte: IP Helpdesk)

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