Intellectual Property
Intellectual Property (IP) management is an important aspect in Fusion for Energy (F4E) contracts and grants. In this section of the F4E Industry Portal you can find useful information to help you to understand the main IP related concepts and how to fulfil the IP requirements in F4E contracts.
IP – Ownership regime
F4E needs to have access to the intellectual property and information brought by its contractors (directly or through subcontractors) which is necessary to carry out the contract or for using the services or goods supplied under the contract (a.k.a. background). In addition, a decision needs to be taken about the ownership regime of the generated intellectual property and information (a.k.a. foreground) for each contract having regard its nature. The provisions for the management of the different regimes for the generated IP are included below.
Background/Foreground declarations
To ensure that F4E contractors can preserve the integrity of their background intellectual property and information, it is necessary that they declare it as such. Likewise, a foreground declaration is needed to ensure that pre-existing intellectual property and generated one are not mixed-up and that these results can be protected where necessary. A background/foreground declaration is necessary for each contract unless explicitly excluded by F4E for a given contract.
A comprehensive guide on how to fill in the background and foreground declaration and a template can be found below.
- Guide to Filling in the Background Declaration
- Background Declaration Sample
- Guide to Filling in the Foreground Declaration
- Foreground Declaration Sample
To complete the background and foreground declaration, the technology categories and codes can be found in the following List of Technologies.
Frequently Asked Questions
What is the background of a contract?
The definition of background used in F4E contracts stems from the Annex on Information and Intellectual Property of the ITER Agreement. The definition establishes that background is any information or IP which is held by the contractor or developed outside the scope of the contract, i.e. not funded by F4E, which is necessary to carry out the contract or for using the services or goods supplied under the contract. There are two main aspects to be highlighted in the definition. On the one hand IP held by the contractor may consist in IP rights on its own, i.e. patents or copyright, but also it may consist in rights acquired through a license or any other analogue agreement for using the IP rights. On the other hand, Know-How may be considered as background.
What is a good background declaration?
A good background declaration is a declaration which includes the following:
- All items which fall under the definition of background
- A proper technical description of each item
- Enough information to allow to establish the origin of each item
- Enough information to allow to establish the rights or limitations associated to the item, e.g. if the contractor was granted a license to use the item but the license permissions do not include certain technical or industrial fields
What is the foreground of a contract?
Foreground is defined as any Information and Intellectual Property whether or not protectable which is generated in the course of the execution of a contract with F4E by the contractor directly or through a subcontractor.
What is a good foreground declaration?
A good foreground declaration is a declaration which includes the following:
- All IP or information items which were developed under the contract and which have an IP relevance
- A proper technical description of the item
- A list of deliverable references which are related to the item
- Any link between this item and any item included in the background declaration
- Information related to any future use of the item by the contractor outside the scope of this contract
Why is it important to make the supplier declare the foreground IP?
The foreground declaration has a defined use, which is to clarify the IP situation for a contract. This is particularly relevant when the foreground of the contract will have to be used by another supplier and/or IO. By supplying a proper declaration the supplier is allowed to establish a clear relationship about how some background may be incorporated in the foreground.
How do you declare a design (type of protection)?
A design should be declared using a formulation in the title and/or the description such as “design of…” the type of protection should be at least ‘copyright’. It is necessary to point out that a design may be protected in different manners. Thus, if the design includes any invention or there is a patent application covering at least part of the design, then the relevant patent box should be checked. Additionally, if the design is confidential or it includes confidential components or parts, then ‘trade secret’ should also checked.
How do you declare a drawing (type of protection)?
A design should be declared using a formulation in the title and/or the description such as “drawing of…” The type of protection should be at least ‘copyright’. It is necessary to point out that drawings may be protected in different manners. Thus, if the design includes any invention or there is a patent or patent application covering any element in the drawing, then the relevant patent box should be checked. Additionally, if the design is confidential or it includes confidential components or parts, then ‘trade secret’ should also checked.
How do you declare software (type of protection)?
Software should be declared using a formulation in the title and/or the description such as “software for…” The type of protection should be at least ‘copyright’. It is necessary to point out that drawings may be protected in different manners. Thus, if the software includes any invention or there is a patent or patent application covering any functionality in the software, then the relevant patent box should be checked. The description should also include the following information:
- Main functionality of the software
- Language in which it was written
- Whether the software provided includes the source code or it is in binary/object form
- Whether the software includes some open source or any other elements with a particular license that F4E needs to be aware of.
Why can an IP asset be protected both by copyright and trade secret at the same time?
Copyright is an IP right which is generated by the mere act of the creation of the work (publication, software, etc.). Whether the work is kept confidential or not is irrelevant to the copyright. For example it is common for software developing companies to keep the source code of their applications, which is protected by copyright, secret from competitors, i.e. as a trade secret.
Why can an IP asset be protected both by patent application and trade secret at the same time?
While a patent application eventually is published, this only happens 18 months after the filing date of the patent application. Thus, if the patent application is declared during this period, it has to be considered as confidential until publication.
Who decides if an item declared in the foreground declaration is confidential or not?
It is the owner of the foreground, be it F4E or the contractor, who decides whether the item is kept confidential or not. It is important to note, though, that even if the contractor is the owner and decides to keep an item confidential, F4E keeps enough access rights to carry out its tasks for the ITER project. This is particularly important in respect of communicating information to ITER IO.
How do I use the declarations so it is possible to tell foreground from background?
The foreground declaration includes a field where the contractor can communicate the relationship between the foreground item and any declared background item. Thus, the foreground includes everything that was not included in the background item.
Is a “Nothing to declare” statement enough?
In case that indeed there is nothing to declare as either background or foreground, this statement is acceptable. It is important to note however that a “nothing to declare” statement within a Background Declarations establishes that all the intellectual property and information within the contract is to be considered as Foreground. Foreground is subject to the IP regime for the generated IP foreseen for that contract.
In case that the “nothing to declare” statement is included in a foreground declaration, the contractor relinquishes any rights whatsoever on the generated Intellectual Property and F4E will decide independently how to deal with it.
