Research and development (R&D) relates to the acquisition of knowledge and to innovations and inventions of new or improved products or technologies. There are several distinct types of research in this field. Fundamental research generally focuses on the development of (new) knowledge and it’s character is mainly scientific. Industrial research involves the development or improvement of products or services with the intention of commercial application of the generated knowledge. Experimental development consists mainly of the use of existing knowledge to generate new products or services. In every field of research and development, cooperation often faces specific legal challenges.
First of all, the nature of research and development projects implies uncertainty regarding the outcome. Sometimes, during a project, new research goals arise. Therefore, parties should clearly define their expectations. In view of this nature, parties often agree solely to aim for a practicable outcome, but do not agree that a specific results will be the outcome. In this respect, parties agree often different stages of the research and development project, reference dates and "Go / No -Go" moments. Furthermore, Parties have to protect their "background" (the contributed knowledge, experience and other information whether or not protected by intellectual property rights), and agree which parties will be entitled to the "Foreground" (knowledge, experience and other developed or created in the context of the project). Sometimes, especially when a permanent research consortium have to be founded with many research institutions, the participants found a separate legal entity, for example in view of liability aspects.
The European Commission or the Dutch government sometimes finances research or development projects, (partially) with subsidies. The government cooperates often with commercial partners that result in a so called public-private partnership. Hereby, specific liability and legal risks arise with respect to subsidy obligations and state aid. Research institutions can provide, instead of a financial contribution, “in kind" contributions such as working hours of employees. Obviously, these contributions have to be accurately valued.
Groenendijk & Kloppenburg Lawyers have extensive experience with legal aspects of cooperation in the research and development sector, for example with respect to Bio Science. Our lawyers provide regularly legal services to businesses located on the nearby Leiden Bio Science Park. Furthermore, we have extensive legal expertise with respect to the foundation of, and liability issues related to, European research consortia. For example, Rens Kloppenburg, has completed the training programme RAMIRI (Realising and Managing International Research Infrastructures) that is supported by the European Commission.
For questions about legal aspects of research and development, please contact LLM Rens Kloppenburg, LLM Niels van Steijn and LLM Frans Kloppenburg. Please visit our office in Leiden in the Netherlands for an (informal) meeting with one of the lawyers.