It should be stressed that the category of Foreground and, consequently, the requirement of knowledge sharing - 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.
As was said in the first part of these considerations it is difficult to establish reciprocal inter-dependencies between the categories of information falling under scope of the “Relevant Knowledge” and “Foreground”. Point 8(a) of the Specifications first of all requires the Project Sponsor to submit knowledge relating to the Project to the Knowledge Sharing Body determined pursuant to the Award Decision, in accordance with the specifications in further paragraphs of point 8.
It should be underlined that point 8(a), as regards the obligation to submit knowledge to the Knowledge Sharing Body, is placed under the title “General obligations” and uses the words: “knowledge relating to the Project” - that is different from the defined in Specifications notions: “Relevant Knowledge” (restricted to the information contained in Annex II) and Foreground (which means the “results which are generated under the Project”). The said circumstances cast doubts whether they should be regarded either as a mere lack of consequence in terminology or a deliberate legislative technique. If the latter option was true, the normative meaning of the entire context of points 8 and 9 of Specifications is, however, unclear.
Pursuant to the Specifications the Knowledge Sharing Body shall be entitled to share the Relevant Knowledge as follows:
i. Level 1 - shared with all NER300 projects of the same category and with any other project which has agreed to share information with the Body on terms equivalent to the terms of this Annex II (“Level 1 Recipients”);
ii. Level 2 - shared with the wider CCS and RES community (Commission, Member States, researchers, NGOs, international organisations and other projects) and, where appropriate, the public.
The Relevant Knowledge may be copied and used for the purpose of the knowledge sharing, according to the requirements described in point 8 of the Specifications. The Project Sponsor shall grant or procure the grant on request to any person entitled to receive Relevant Knowledge a royalty-free, nonexclusive, perpetual, irrevocable, worldwide licence for such purpose.
The requirement of crucial practical importance is that “References to knowledge shall include the knowledge of the Project Sponsor and the knowledge of all project operators, consortium members, suppliers and subcontractors under the Project, and the Project Sponsor shall procure that all relevant agreements with any such party shall include an obligation on such party to provide such information to the Project Sponsor for the purpose of these knowledge sharing requirements”.
This requirement implicates the necessity to virtually copy the relevant parts of the Specifications into the above-mentioned set of contracts. However, satisfying these obligations could occur problematic bearing in mind the complexity of the provisions contained in points 8 i 9 of the Specifications.
The due consideration should be given to the fact that the Project Sponsor is not obliged to disclose information to the Knowledge Sharing Body to the extent that (and only for so long as) the disclosure of such information to or by the Body would:
(1) enable the reverse-engineering of the Project Sponsor’s Background technology;
(2) prejudice the Project Sponsor’s ability to obtain patent or other registered intellectual property right protection (provided that the Project Sponsor wishes to obtain such protection and, if so, it shall not unreasonably delay seeking such protection).
Scrupulous documentation of the patent (and other registered intellectual property right protection) procedures conducted by the applicants could theoretically make difficult for the relevant authorities to enforce knowledge sharing obligations. I’m also afraid that the said exception to the rule, if abused, could also thwart the entire idea of knowledge sharing obligation with respect to the NER 300 projects.