Each party to a joint development agreement (JDA) has something of value to offer and is interested in working as a partnership in order to create something new of value. That is why it is of great importance to elaborate, before beginning a joint development project, a written agreement addressing the fundamental aspects of how to treat the intellectual property that will be used or developed during the JDA.
Therefore, questions of ownership, use and enforcement have to be answered in the JDA in order to precisely define the status of IPRs and carefully address each parties rights and responsibilities, both during and after the project.
The JDA should clearly separate intellectual property owned by each party before the JDA, jointly developed pursuant to the JDA and finally, developed independently during the life of the JDA.
Ownership issues often come up with issues of use. Each party usually wants to use what the other owns and the owner wants to place some restrictions on the extent of the use. The precise conditions that will be attached to such a licence are the subject of negotiations by the parties. Many parties to JDA seek to restrict the use of jointly developed IP by each other to prevent use by their respective competitors.
The parties should define the conditions under which the joint IP will be enforced, any rights of refusal and the allocation of the expenses, control and recoveries of any enforcement action.