The Commission welcomes the political agreement reached between the European Parliament and the Council on Horizon Europe, the European Union's next research and innovation program.

Despite the uncertainty we have faced throughout the year that is about to end, it appears that the European Union’s commitment to promoting industrial leadership in Europe remains unchanged.

As we mentioned in the article we published on this topic, coinciding with the conclusion of the Horizon 2020 program, the European Commission is working on the launch of the Horizon Europe program with the same objective as its predecessor: to support innovation in Europe and strengthen scientific excellence. To this end, it has a budget of 95.5 billion euros for the 2021–2027 period, making it the largest transnational program ever undertaken to support research and innovation.

After several months of negotiations, on December 11, 2020, the European Union institutions reached a political agreement on the Horizon Europe program. Although the agreement is still pending formal approval by the European Parliament and the Council, the Commission has been preparing for its implementation so that the program can begin as soon as possible following the publication of the provisional agreement in March and April 2019.

According to the information included in the provisional agreement signed in March, Horizon Europe is based on three fundamental pillars: promoting scientific excellence, supporting projects aimed at developing technological solutions to challenges in critical areas such as health, climate change, and mobility, and fostering innovation activities across all European Union countries. With the agreement set to be formally approved, the measures established by Horizon Europe to drive progress have been finalized:

• The creation of the European Innovation Council (EIC), a one-stop shop for developing the most promising ideas and supporting the most innovative SMEs, which is currently in a pilot phase and will complement the European Institute of Innovation and Technology (EIT).
• The implementation of EU missions, aimed at addressing the issues that affect our daily lives—from the fight against cancer to adapting to climate change and protecting the environment.
• A more streamlined approach to European partnerships, while encouraging broad participation by partners from the public and private sectors.
• Strengthen international cooperation by enabling collaboration with non-EU countries (third countries) that have strong capabilities in science, technology, and innovation.
• Promote open science by making access to research publications and data mandatory.
• Promote participation and narrow the innovation gap in Europe by adopting a wide range of measures aimed at supporting countries with lower innovation performance, in order to build centers of excellence and facilitate collaborative partnerships.
• Increase the impact of R&D&I by creating synergies with other European Union programs and policies, such as InvestEU, Erasmus+, EU Cohesion Policy, Digital Europe, and the European Structural and Investment Funds, among others.
• To increase legal certainty and reduce the administrative burden on program beneficiaries and administrators.

According to the press kit published by the European Commission, the implementation of these measures is expected to create 300,000 jobs by 2040—40% of which will be highly skilled—and generate up to 11 euros of GDP for every euro invested in R&D over a 25-year period. In addition, it is estimated that more than 35% of Horizon Europe’s spending will be allocated to supporting climate goals.

Notwithstanding the measures that are ultimately adopted and the formalization of the agreement, there is no doubt that this new program—which is even more ambitious than its predecessor— will help consolidate an innovative ecosystem in Europe, one that Spanish companies investing in R&D&I should take advantage of.

In this regard, it is essential to approach the calls for proposals published under the Horizon Europe program with careful planning and expert assistance that ensures companies are eligible for these types of opportunities. As part of our mission to support Spanish companies and institutions in their innovation efforts, we will stay up to date on the latest developments regarding Horizon Europe, as well as the first calls for proposals launched under the program.

You can find additional information of interest below:

• Press release issued by the European Commission on December 10, 2020.
• Press release issued by the European Commission on March 20, 2019, regarding the provisional agreement on the Horizon Europe program.

Authors: Alba Mª López and Marina Martínez

The Horizon 2020 (H2020) Program is the program that funds research and innovation projects in the European Union for the 2014–2020 period. As the H2020 program comes to a close—and with the same goal for which it was launched—to promote industrial leadership in Europe and strengthen scientific excellence—the European Commission is now working on its successor, Horizon Europe. This new program will cover the period 2021–2027 and promises to be the largest research, development, and innovation funding program to date.

What is Horizon Europe?

Horizon Europe is a funding program designed to support research, development, and innovation projects that advance a set of objectives common to the entire European Union. These objectives are based on the three pillars of the Horizon Europe program, which are as follows:

• • Scientific Excellence: On the one hand, the program seeks to promote “open science” by offering support to researchers through grants and by funding projects defined and led by the researchers themselves through the European Research Council and the Marie Skłodowska-Curie Actions (MSCA).

• • Global Challenges and European Industrial Competitiveness: Furthermore, the program aims to promote, through the Joint Research Center (JRC), projects that develop technological solutions to challenges in critical areas such as health, climate change, mobility, food and natural resources, energy, civil security, the digital world, industry, and space, among others. This means that not only will the excellence of the projects be evaluated, but the development projects submitted in response to the calls for proposals must also have a clear social impact.

• • Innovative Europe: Finally, the goal is to promote and support innovation activities involving businesses, research, and higher education through the European Innovation Council (EIC) and the European Institute of Innovation and Technology (EIT). These innovation activities will be implemented through so-called “missions,” which are broad global challenges (for example: cancer; soil health and food; smart and climate-neutral cities; the health of oceans, seas, and coastal and inland waters; and adaptation to climate change). In this way, funding will be provided for projects that have a broad impact on any of these areas.

Clickheretoaccess the full document on the Horizon Europe Program 2021–2027.

Authors: Alba Mª López and Marina Martínez

The European Union Public License (hereinafter “EUPL”) is an open-source license approved by the European Commission in 2007, which was specifically designed to be adapted to the European Union’s regulatory framework.

Why was it necessary?

Free software/open-source licenses originated in the United States; therefore, common law has influenced the drafting of the earliest open-source licenses and those that were subsequently developed. As a result, the interpretation and application of the provisions of these licenses under continental European copyright law can be problematic in some cases.

For example, one of the most significant differences between these two systems is that U.S. copyright law provides for the transfer of all rights held by the owner of a work to a third party, whereas continental copyright law does not allow for the transfer of moral rights in the work, which are inherent to the author and inalienable.

In late 2004, the European Commission issued a study on open-source licenses for software developed by the Commission itself, in which it noted that the licenses in place at that time did not meet certain requirements mandated for European institutions. Specifically, the contentious issues related to: a lack of specification regarding applicable law and jurisdiction; warranties and limitations of liability; terminology regarding copyright that was not adapted to European practice; and legal validity in different languages.

That is why, despite the large number of open-source licenses available (more than 300), the European Commission could not find a license that perfectly suited the projects it wanted to carry out and decided to draft the EUPL. The first version was published in 2007, and in 2009 the Open Source Initiative (OSI) certified it as an “open source” license for complying with its principles.

The latest version of the EUPL, version 1.2, was updated by Commission Implementing Decision (EU) 2017/863 of May 18, 2017, which is available via this link.

Clickheretoview the full document on the open-source license.

Author: Agustín Alguacil

European SMEs can now take advantage of a new call for proposals under the European Union’s “Intellectual and Industrial Property Diagnostic Service” (IPA4SME Program)

The program provides financial support and services for the valuation and analysis of existing technology and knowledge assets in SMEs that have received the Seal of Excellence awarded under the European Union’s H2020 Program.

The Spanish Patent and Trademark Office (OEPM) is responsible for preparing reports related to this service for Spanish companies that have requested it, in line with its commitment to promoting the use of intellectual and industrial property among innovative Spanish SMEs.

According to reports from the Spanish Patent and Trademark Office (OEPM), Spain is the country where the most companies are benefiting from this service, as it also has the highest number of companies with the H2020 Program Seal of Excellence among all European countries.

The fourth call for proposals under the IP4SME Program is currently underway, and the application period for the program’s fifth call for proposals is open from March 27 through June 5.

The OEPM will continue to offer the IPA4SME service throughout the remaining seven calls for proposals, through the end of 2021.

If you would like to learn about the program's benefits and the requirements that applicant SMEs must meet, please access the full document.

Authors: Alba Mª López and Marina Martínez Pedreño

One year after the enactment of the Trade Secrets Act (Law 1/2019), we can say that the law is having a significant impact on the Spanish business community.

Some companies had already been managing this intellectual asset, but with the law’s entry into force, its use has increased considerably among organizations of all sizes and across a wide range of sectors, as it adds value to certain information that was previously neither protected nor considered an asset worth taking into account.

There are also many companies that want to transition from being service providers to sellers of technology products, and this requires establishing an IP strategy and implementing a robust model for protecting these assets. Within that strategy and model, trade secrets are audited, evaluated, and play an increasingly important role, especially in this data-driven economy toward which we are moving.

The application of the Law has a two-pronged approach, and both aspects must be taken into account. On the one hand, the Law grants a right to protect trade secrets against unauthorized access, use, and disclosure; it elevates trade secrets to the same category as other intellectual property rights and treats them as property under a regime very similar to that of patents, providing, for example, for their assignment or licensing. On the other hand, however, the Act requires companies to exercise great diligence when transmitting, receiving, or storing trade secrets or confidential information from third parties to avoid becoming the subject of legal claims.

In this regard, it is important to remember that trade secrets are protected under criminal law by Articles 278 (corporate espionage) and 279 (breach of trade secret) of the Penal Code. Article 278 of the Penal Code applies to any person who uses data, written or electronic documents, computer media, or objects to uncover trade secrets, and Article 279 of the Penal Code applies to persons who, having a legal or contractual obligation of confidentiality, engage in acts of unauthorized dissemination, disclosure, or transfer of trade secrets.

The preceding articles of the Penal Code are open-ended criminal provisions in which concepts are not defined, and it is highly likely that the criteria of civil law (Law 1/19) will apply to criminal proceedings. Likewise, it is likely that companies or institutions whose trade secrets are breached will pursue criminal proceedings. Therefore, companies, organizations, and institutions must include compliance with obligations related to third-party trade secrets in their compliance policies.

In any case, an increase in litigation regarding trade secrets is expected as companies become more aware of the importance of this intangible asset and implement the necessary measures to protect it and demonstrate compliance with the required standards.

In anticipation of this, the Competition Law Section of the Barcelona Commercial Court published a “Protocol for the Protection of Trade Secrets in Commercial Courts” in December 2019 .

The rationale for the Protocol lies in the need to specify in detail the procedural security mechanisms for secret or confidential information, as set forth in Article 15 of Law 1/2019 (“Handling of Information That May Constitute a Trade Secret”).

The scope of this Protocol is broad, as it is intended not only to cover proceedings involving alleged breaches of trade secrets but also to apply to all proceedings in which certain information is declared to be a trade secret or confidential information. For example, it can serve as a useful guide for handling confidential information in public procurement processes, where situations are increasingly arising in which certain information about a bidder must be protected from its competitors.

The Protocol provides that specific measures to protect trade secrets may be applied at various stages of the proceedings: from the outset of the proceedings (for example, by requesting them in the complaint or motion for preliminary relief); or once the proceedings have begun (for example, in the answer to the complaint or when submitting evidence). Measures to protect trade secrets and confidential information may be ordered ex officio or at the request of a party, always allowing for the possibility of a hearing or the parties’ opportunity to present their arguments.

The Protocol specifies what the request must include regarding measures to maintain secrecy or confidentiality, in accordance with the principles of necessity, appropriateness, proportionality, specificity, balancing the interests of third parties, and the least onerous measures requested; and the individuals who will comprise the “confidentiality circle.”

The Protocol also examines the various measures that may be implemented to preserve physical and digital records, ensure access to them, provide public access to hearings, and grant access to recordings and to both confidential and non-confidential versions of court documents.

A court order regarding the measures to be applied to classified or confidential information must be specific as to the applicable measures (which must be necessary to achieve the purpose, appropriate, and proportionate); it must provide a rationale for the confidential nature of the information and specify the classified or confidential information in question.

In short, one year after the law was enacted, we are seeing how trade secrets are becoming an increasingly important intangible asset— and that their importance will continue to grow. We can expect an increase in litigation in this area, with cases becoming more sophisticated. We may not reach the levels seen in the United States, but there will undoubtedly be a higher number of lawsuits, and it is advisable to be prepared for this.

Authors: Javier Fernández-Lasquetty and Cristina Espín