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News article17 September 2021European Innovation Council and SMEs Executive Agency

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

open book

 

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.

 

Our Helpline team is, accordingly, starting to receive more and more questions regarding IP in Horizon Europe. We will try to identify recurring concerns and address them in this blog regularly; this month, we would like to start by clarifying some misconceptions surrounding the Open Science policy applicable in Horizon Europe projects.

 

A postdoctoral fellow applying for the MSCA-PF call wrote to us last week, and his queries illustrated quite well the doubts that many first-time applicants experience when working on their proposal and navigating the main IP rules.

 

Our enquirer’s concerns were the following: is it possible to first file for a patent (his proposed project would involve the development of a new invention), and only then to proceed to the dissemination of results via an open access article? Or does the Open Science policy applicable in Horizon Europe prevail over IPR protection, and imposes the disclosure of the invention in an open access journal as soon as possible?

 

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.

To all applicants: good luck with your proposal!

 

Picture by Nowaja on Pixabay

Details

Publication date
17 September 2021
Author
European Innovation Council and SMEs Executive Agency