Article 19 — Risk benefit sharing under market conditions
In brief
This article is central to how intellectual property arising from R&D procurement is allocated. As a default rule, IP rights to the results generated by a contractor are not to accrue exclusively to the public buyer; instead risks and benefits are shared under market conditions. Contractors keep ownership of their results, but that ownership comes with obligations, and public buyers retain a series of access, licensing and, in limited cases, ownership rights to protect the public interest.
Key points
- Contractors have the right to retain ownership of the IP they generate, subject to obligations to protect the results, use best efforts to commercialise them, and not use them contrary to the public interest.
- Contractors must notify the buyer of exploitable results and of their protection and commercialisation decisions; if they decline to protect or commercialise, the buyer may (by agreement) let the contractor’s staff take ownership, or protect the results itself and license them on fair, reasonable and non-discriminatory terms.
- Public buyers obtain at least free access to the results for their own use and for their current and future contractors, and may require rights to modify and maintain them; emergency and failure-to-commercialise scenarios trigger graduated licensing or transfer rights, with or without financial compensation depending on the contractor’s conduct.
- Contractors must give advance notice of any exclusive licensing or transfer, which the buyer may object to on defined grounds, including impact on access, vital-interest sectors, or control by certain third countries.
- For R&D procurements that are not pre-commercial, buyers may exceptionally take IP ownership on overriding public-interest grounds specified in the documents, subject to conditions; the Commission may adopt delegated acts to amend the listed cases, and subcontracting must pass on the same IP obligations while respecting Union IP law and TRIPS.
What it means in practice
This provision matters most to IP holders and their advisers, to innovative contractors and their subcontractors, and to public buyers designing R&D contracts. Contractors can, in principle, retain and commercialise their innovations rather than surrendering them to the state, which is relevant to IP-backed finance and valuation. In return they take on active obligations, and must anticipate the buyer’s access rights and the possibility of compelled licensing or transfer if commercialisation fails or the public interest is at stake. Buyers will need to draft contract terms, notification periods and objection procedures carefully, and to pass equivalent obligations down the subcontracting chain.
Official text — Article 19 (COM(2026) 567)
1. Public buyers shall ensure that intellectual property rights to the results generated by
a contractor in the performance of an R&D procurement contract do not accrue
exclusively to the public buyer for its use in the conduct of its own affairs but that the
public buyer shares with the contractor under market conditions the risks and
benefits related to those intellectual property rights. To meet this requirement, public
buyers and contractors shall fulfil the obligations set out in paragraphs 2 to 9:
2. Contractors shall have the right to retain ownership of the intellectual property rights
to the results they generated in the performance of an R&D procurement contract.
The R&D procurement contract shall provide this right to contractors subject to an
obligation on contractors to protect their results, to use their best efforts to
commercialise their results and not to use the results contrary to the public interest.
3. Contractors shall notify public buyers as soon as possible of any results that can be
exploited within a maximum period from the generation of the results specified in the
R&D procurement contract. This notification shall include the contractor’s decision
to protect and commercialise these results. Where contractors decide not to protect or
commercialise results as defined in the R&D procurement contract the public buyer
shall, by way of derogation from paragraph 2 and without any prejudice to the moral
rights of authors, have the right:
(a) to grant, in agreement with the contractor, to the staff of the contractor the right
to protect those results and obtain ownership of the intellectual property rights
to those results; or
(b) to protect itself those results, obtain itself ownership of the intellectual property
rights to those results, and to transfer or license the results under fair and
reasonable conditions and in a non-discriminatory way.
4. Public buyers shall obtain at least free access to the results generated by the
contractors in the context of a R&D procurement contract for their own use and for
use by their current and future contractors in the performance of any contracts
awarded by those public buyers. Public buyers may also require that such free access
includes in addition to usage rights other access rights such as rights to modi fy and
maintain the results.
5. In emergency situations where contractors are unable to satisfy subsequent demand
for the results of the R&D procurement contract on the Union market, public buyers
shall have the right to grant licences or to require contr actors to grant licences to
third parties to commercially use the results of the R&D procurement contract on a
non-exclusive basis, without any right to sublicense, and under fair and reasonable
conditions.
6. Where contractors fail to commercialise their results within a reasonable period as
provided for in the R&D procurement contract but provide legitimate reasons for that
failure, public buyers shall:
(a) verify with the contractors whether they are able and willing to commercialise
the results if given a reasonable amount of additional time;
(b) only in case it is verified that the contractors are unable or unwilling to
commercialise the results, or fail to commercialise the results within the
additional time referred to in point (a), have the right to:
(i) grant licences or to require contractors to grant licences to third parties,
under fair and reasonable conditions, to commercially use the results of
the R&D procurement contract on a non -exclusive basis, without any
right to sublicense; or
(ii) only in case that a licensing action as referred to in point (i) is not
sufficient to achieve the commercialisation required by the R&D
procurement contract, require the contractor to transfer ownership of
those results to the public buyers, under fair and reas onable conditions,
without any prejudice to the moral rights of authors.
7. Where contractors fail to commercialise their results within a reasonable period
provided for in the R&D procurement contract and fail to justify this with legitimate
reasons or wh ere contractors use those results in a manner contrary to the public
interest, and where efforts undertaken by public buyers to obtain within a reasonable
amount of time authorisation from the contractors to license the results on fair and
reasonable conditions have failed, public buyers shall have the right to:
(a) grant licences or to require contractors to grant licences to third parties to
commercially use the results of the R&D procurement contract on a non -
exclusive basis, without any right to sublice nse without providing financial
compensation to the contractors; or
(b) in case that the action in point (a) is not sufficient to prevent the use of the
results in a manner contrary to the public interest or achieve the
commercialisation required by the R& D procurement contract, require the
contractor to transfer ownership without of those results to the public buyers,
without providing financial compensation to the contractors, without any
prejudice to the moral rights of authors.
8. For the purpose of par agraphs 6 and 7, legitimate reasons include where the
contractor demonstrates that it used its best efforts to commercialise the results and
to avoid abuse of the results in a manner that is contrary to the public interest.
9. Contractors shall notify publ ic buyers in advance of any intention to undertake
exclusive licensing or transfer of ownership of R&D procurement results. Public
buyers shall have the right to object to exclusive licensing or transfer of ownership of
R&D procurement results by contractors in any of the following cases:
(a) where such licensing or transfer would negatively impact the access of the
public buyer to the results or the commercial exploitation of the results;
(b) where such licensing or transfer would be contrary to the public interest in
sectors of vital importance to the socio-economic or technological development
of the Union or of the Member States of the public buyers;
(c) where those results would become subject to control or other restrictions by a
country other th an those referred to in Article 11(1), in a way that would
negatively impact the access of the public buyer to or the commercialisation of
the results, as referred to in point (a) of this paragraph, or in a way that would
be contrary to the public interest, as referred to in point (b) of this paragraph.
10. For R&D procurements that are not pre -commercial procurements, by way of
derogation from paragraphs 1 to 9, where justified by any of the following overriding
reasons of public interest which shall be sp ecified in the procurement documents,
public buyers may obtain the ownership of the intellectual property rights to the
results generated by contractors in the context of an R&D procurement contract:
(a) where necessary and justified for ensuring the protection of the security and
public safety interests of the Union or one or several of its Member State
within the meaning of Article 28(2);
(b) where necessary to prevent abuse of the results by contractors or other third
parties and there is no other effective way to prevent such abuse.
(c) where the public buyer intends to have exclusive rights to exploit the
intellectual property rights to the results generated by contractors;
Where public buyers obtain ownership of intellectual property rights in ac cordance
with the first subparagraph:
(a) if they fail to exploit intellectual property rights obtained under point (c) of
paragraph 10 within a period of four years from the date of obtaining the
ownership of the intellectual property rights, they shall o ffer to transfer the
ownership of those intellectual property rights or licence them under fair and
reasonable conditions and in a non-discriminatory manner;
(b) if they decide to transfer the ownership of these intellectual property rights or
licence them , they shall do so under fair and reasonable conditions and in a
non-discriminatory manner;
(c) they shall ensure that all results which do not give rise to intellectual property
rights may be widely disseminated, without prejudice to confidentiality and
data protection obligations a referred to in Article 26.
The Commission is empowered to adopt delegated acts in accordance with Article 39
to amend the list of cases set out in the first subparagraph of this paragraph, taking
into account the following criteria:
(a) the impact on increasing the commercialisation of R&D results;
(b) the impact on improving the access of innovative enterprises, including in
particular innovative startups and scaleups, and new entrants to the market;
(c) the impact on socio-economic or technological development in the Union;
(d) the impact on the Union’s strategic autonomy and economic security;
(e) the impact on protecting public interests;
11. Public buyers shall:
(a) require contractors to stipulate in subcontracting agreeme nts, that
subcontractors are bound by the same intellectual property rights and
obligations as those applicable to contractors under the R&D procurement
contract, in particular that in any transfer or licensing agreement the
contractor’s obligations under the R&D procurement contract are passed on to
the new owner or licensee and that the new owner or licensee has the
obligation to pass them on in any subsequent transfer or licensing.
(b) when drawing up and implementing obligations affecting the protection of
intellectual property rights in the context of R&D procurement contracts,
comply with the applicable Union law on intellectual property, the TRIPS
Agreement43 and other international obligations of the Union or the Member
States concerned.
For the purposes of the first subparagraph, point (b), where participation in the
R&D procurement is not restricted to economic operators that have their origin
in Member States, public buyers shall treat economic operators having their
origin in other WTO Member cou ntries no less favourable than economic
operators that have their origin in the public buyer’s own country with regard
to the protection of intellectual property, except where otherwise provided for
in the TRIPS Agreement.
Source: European Commission, proposal for a Regulation establishing the European Innovation Act, COM(2026) 567 final, 9 September 2026. Read the official proposal (PDF). Text may change during the legislative process.
Anthony Bochon’s analysis
This is, in my view, the intellectual heart of the whole R&D chapter, and it marks a decisive break with the reflex that whoever pays for research should own its results. The default rule is inverted: the contractor retains ownership of the IP it generates, while the public buyer secures at least free access rights for its own operations and those of its contractors, so that risks and benefits are shared under market conditions rather than expropriated. Anyone who has worked with the Horizon Europe model grant agreement will recognise the philosophy — ownership to the performer, coupled with access rights, best-efforts exploitation and protection duties — now transplanted into hard procurement law. The graduated intervention machinery in paragraphs 5 to 9 is where the drafting is genuinely sophisticated: emergency step-in licences, licences where commercialisation stalls despite legitimate reasons, and — critically — compensation-free licensing or forced transfer of ownership where the contractor fails without legitimate reason or uses the results against the public interest.
Two features deserve the practitioner’s close attention. First, the public buyer’s right to object to exclusive licensing or transfer, especially where results would fall under the control of a third country outside Article 11(1), reads as an economic-security and strategic-autonomy instrument grafted onto IP law, and it sits alongside the TRIPS and national-treatment safeguards in paragraph 11 that keep the regime WTO-compatible. Second, the paragraph 10 derogation allowing the buyer to take ownership for security, anti-abuse or exclusive-exploitation reasons — tempered by a four-year use-it-or-lose-it obligation and a Commission delegated-act power to reshape the list — is the pressure point I expect Parliament and Council to contest hardest. My advice to innovative contractors is to treat the R&D contract’s IP clauses as the commercial core of the deal, to price the best-efforts and public-interest obligations realistically, and to map early how the objection and step-in rights could bite on any downstream investor or foreign acquirer.