It should be noted that above-cited exceptions relate to the general obligation of disclosing information to the Knowledge Sharing Body.

 

But the Specifications are consequent in applying these exceptions also to the category defined as “Foreground” stating that the Project Sponsor shall not be required to grant the required licence to the extent that (and for so long as):

 

(1) the grant of such licence or the exercise of the licensee’s rights under the licence would prejudice the Project Sponsor’s or any Foreground Owner’s ability to obtain patent or other registered intellectual property right protection (provided that the Project Sponsor or relevant Foreground Owner wishes to obtain such protection and, if so, it shall not unreasonably delay seeking such protection); and

 

(2) in respect of licensing into a third country outside the European Union, the intellectual property laws and enforcement regime in such country do not provide equivalent protection to the intellectual property laws within European Union and the Project Sponsor has legitimate grounds for concern that it would not adequately be able to enforce its rights in respect of misuse of foreground if the licence were to be granted; this is without prejudice to any licensing requirements established at national level with regard to a Project which receives national funding in addition to NER 300 funding.

 

The above considerations lead to the conclusion that before satisfying any knowledge sharing obligation there should be carefully examined at the level of any Project participant:

 

1) the scope of the information falling under the category of “Background” (which, as was envisioned in Part I, is not subject to the licensing requirements),

 

2) any patent (and other registered intellectual property right protection) procedures (and potential possibilities for initiation of such procedures),

 

3) specific provisions of every contract relating to the Project,

 

4) as regards knowledge sharing obligations relating to the third countries outside the European Union, the intellectual property laws and enforcement regime in such country, in order to establish whether the equivalent protection of the intellectual property laws is safeguarded.

 

In the case where none of the said exceptions to the rule of knowledge sharing obligations can be applied, the following licensing requirements should be satisfied:

 

1) The Project Sponsor shall grant, and procure, through appropriate contractual arrangements, that any relevant Foreground Owner or assignee of the Foreground shall grant, where required by the competent authority of the Member State a non-exclusive licence on terms that are commercially reasonable and compliant with all relevant regulatory obligations to use the Foreground arising from the Project for the purposes of implementing a project similar to the Project anywhere in the world provided that such licence is necessary for the implementation of such project (with the exception of Background),

 

2) The competent authority of the Member State may require grant of a licence at issue where and to the extent that this is necessary to fulfil the requirements set out in Article 10a(8) of Directive 2003/87/EC, in Article 12 of the NER 300 Decision and in the Award Decision.

 

It should be stressed that the category of Foreground and, consequently, the above mentioned requirement - comprises the property of the Project Sponsor or every relevant consortium member, supplier or sub-contractor who developed it. All these complex issues need therefore to be carefully considered and precisely specified in all contracts governing the project applying for NER 300 funds.

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