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Legal basis for the creation of small innovative enterprises by universities. Small innovative enterprise based on the university: from idea to business Mip has the right to be the host |
In modern economic and legal literature, the definition of a small innovative enterprise at a university is not considered, because this area is still under development. Such terms as "small innovative enterprise", "entrepreneurial activity of the university", "innovative project", "small business" are widely used. For the purposes of practical application, it seems important to define the concept of "small innovative enterprise at the university". It reflects the essence of the creation and operation of various types of SIE at universities as innovative projects. N.V. Atarschikova Atarschikova N.V. Commercialization of scientific and technical developments through small innovative enterprises at universities // Management of economic systems: electronic scientific journal. 2011. No. 5. indicates that the concept of "small innovative enterprise at a university" is the next stage in the development of all these terms and proposes to define the hierarchy of terminology. Thus, the concept of "small innovative enterprise at the university" includes the following components: a small enterprise, an innovative project and entrepreneurial activity of the university. Based on the foregoing, a “small innovative enterprise at a university” is an enterprise that is established on the basis of a higher educational institution for the purpose of generating income and belongs to the category of small business according to the criteria defined by federal law. The rules governing legal relations for the creation of small innovative enterprises at universities (hereinafter referred to as SIE) for the use of the results of intellectual activity (hereinafter referred to as RIA) by universities can be divided into the following types according to their content: 1. general rules of civil law, fixing General provisions on exclusive rights; Legal status of business companies; The procedure for introducing the rights to use RIA in the authorized capital of business entities; Legal status of budgetary institutions; Evaluation of intellectual property rights. 2. special rules that establish the specifics of the legal regulation of the use of RIA by universities in the process of creating economic companies by budgetary scientific and educational institutions for the purpose of practical application (implementation) of the results of intellectual activity. Special norms are contained in normative legal acts of various legal force. The creation of budgetary scientific and educational institutions of business entities for the purpose of practical application (implementation) of RIA is provided for by Mr. N 217-FZ. In accordance with this law, budgetary scientific and educational institutions can create new societies, but cannot be included in existing ones. Note that prior to this federal law, universities and research institutes could not introduce the results of their intellectual activity. It is also important that, according to the law, income from the activities of small and medium-sized innovative enterprises can only be directed to the legal protection of the results of intellectual activity, the payment of remuneration to their authors and to the implementation of the main activities of institutions - education and science. SIE at universities can be created in the form of business companies. Business companies are recognized as commercial organizations with the authorized (share) capital divided into shares (contributions) of the founders (participants) (clause 1, article 66 of the Civil Code of the Russian Federation). In accordance with paragraph 3 of Art. 66 of the Civil Code of the Russian Federation, business companies can be created in the form of a joint-stock company, a company with limited or additional liability. The legal status of joint-stock companies is determined by Federal Law No. 208-FZ of December 26, 1995 “On Joint-Stock Companies” “Collected Legislation of the Russian Federation” of January 1, 1996, No. 1, Art. 1.. The procedure for the creation and operation of a limited liability company is enshrined in the Federal Law of February 8, 1998 N 14-FZ “On Limited Liability Companies” “Collected Legislation of the Russian Federation” of February 16, 1998, N 7, art. 785.. The general procedure for the formation of the authorized capital of newly established business entities is established by the Civil Code of the Russian Federation. Authorized capital - a set in monetary terms of contributions (shares, shares at par value) of the founders (participants) to the property of the organization during its creation to ensure activities in the amounts determined by the constituent documents. A contribution to the authorized capital of a company can be money, securities, and other things. The contribution of a company participant may also be property rights, in particular the right to use property (for example, a building) and other rights that have a monetary value. An object of intellectual property cannot be a contribution to the authorized capital. The right to use such an object can be recognized as a contribution. The monetary value of things and property rights contributed to the authorized capital is made by the participants of the company by mutual agreement. The assessment of non-monetary contributions is approved by a unanimous decision of the general meeting. The general valuation procedure is established by Federal Law No. 135-FZ of July 29, 1998 “On Valuation Activities in the Russian Federation”. Federal Law No. 135-FZ of July 29, 1998 “On Appraisal Activities in the Russian Federation” // SZ RF. 2008. N 48. Art. 5499. The rights to the results of intellectual activity (hereinafter referred to as RIA) are mainly regulated by the norms of part four of the Civil Code of the Russian Federation, which contains section 7. “Rights to the results of intellectual activity and means of individualization”. Exceptions to this general rule are directly indicated in part four of the Civil Code of the Russian Federation. In accordance with Article 1225 of the Civil Code of the Russian Federation and equivalent means of individualization of legal entities, goods, works, services and enterprises that are granted legal protection (intellectual property), are: 1) works of science, literature and art; 2) programs for electronic computers (computer programs); 3) databases; 4) performance; 5) phonograms; 6) communication on the air or by cable of radio or television programs (broadcasting of on-air or cable broadcasting organizations); 7) inventions; 8) utility models; 9) industrial designs; 10) selection achievements; 11) topology of integrated circuits; 12) production secrets (know-how); 13) trade names; 14) trademarks and service marks; 15) names of places of origin of goods; 16) commercial designations. RIA recognizes intellectual property rights, which include an exclusive right, which is a property right, and in some cases provided for by the Civil Code of the Russian Federation, and personal non-property rights and other rights (the right to follow, the right to access, and others). Intellectual rights do not depend on the ownership of the material carrier (thing) in which the corresponding intellectual property is expressed. The exclusive right to RIA created by creative work initially arises from its author. The author of RIA is a citizen whose creative work created such a result (Article 1228 of the Civil Code of the Russian Federation). This right may be transferred by the author to another person under an agreement, and may also be transferred to other persons on other grounds established by law. Citizens who did not make a personal creative contribution to the creation of such a result, including those who provided its author only technical, consulting, organizational or material assistance or assistance, or only contributed to the registration of rights to such a result or its use, as well as citizens who carried out control over the implementation of relevant work. The author of RIA owns the right of authorship, and in some cases the right to a name and other personal non-property rights. The right of authorship, the right to a name and other personal non-property rights of the author are inalienable and non-transferable. Waiver of these rights is void. A citizen or legal entity that has the exclusive right to RIA (right holder) has the right to use such a result or such means at its own discretion in any way that does not contradict the law, and may also dispose of the exclusive right to RIA. The right holder may, at his own discretion, allow or prohibit other persons from using the RIA. In this case, the absence of a prohibition is not considered consent (permission). Other persons may not use the RIA without the consent of the right holder, except as provided for by the Civil Code of the Russian Federation. The use of RIA without the consent of the copyright holder is illegal and entails legal liability. The use of RIA by other persons without his consent is allowed in a number of cases and with the right holder retaining the right to remuneration. Article 1229 of the Civil Code "Exclusive Right" contains the main provisions on the rights of the copyright holder. The right holder may, at his own discretion, allow or prohibit other persons from using the RIA. In this case, the absence of a prohibition is not considered consent (permission). Income from the joint use of RIA is distributed equally among all right holders, unless otherwise provided by an agreement between them. The term of validity of exclusive rights is defined in Article 1230 of the Civil Code of the Russian Federation. The exclusive right to intellectual property may be transferred by the author to another person under a license agreement, and may also be transferred to other persons on other grounds established by law. Under a license agreement, one party - the owner of the exclusive right to the result of intellectual activity or to a means of individualization (licensor) grants or undertakes to grant to the other party (licensee) the right to use such a result or such means within the limits provided for by the agreement (Article 1235 of the Civil Code of the Russian Federation). The licensee may use the RIA only within the limits of the rights that are expressly provided for in the license agreement. RIA that is not directly specified in the license agreement is not considered granted to the licensee. Requirements for the content of the license agreement and the procedure for its execution are determined in accordance with Art. Art. 1235 - 1237 of the Civil Code of the Russian Federation. The period for which the license agreement is concluded cannot exceed the period of validity of the exclusive right to RIA. If the term of its validity is not specified in the license agreement, the agreement is considered to be concluded for five years. In case of termination of the exclusive right, the license agreement is terminated. As a rule, a license agreement is concluded in writing. If RIA is subject to state registration in accordance with the Civil Code of the Russian Federation, then the granting of the right to use such a result is also subject to state registration. The Federal Executive Authority for Intellectual Property, which carries out the state registration of agreements on the disposal of the exclusive right to RIA, is the Federal Service for Intellectual Property, Patents and Trademarks. The procedure for state registration of agreements on the disposal of exclusive rights is established by Decree of the Government of the Russian Federation of December 24, 2008 N 1020. "Collection of Legislation of the Russian Federation", January 12, 2009, N 2, Art. 225. The Civil Code of the Russian Federation provides for two types of license agreements: 1. A simple (non-exclusive) license (granting the licensee the right to use RIA with the licensor retaining the right to issue licenses to other persons). 2. Exclusive license (granting the licensee the right to use RIA without retaining the licensor's right to issue licenses to other persons). Unless otherwise provided by the license agreement, the license is assumed to be simple (non-exclusive). The Civil Code contains rules on the execution of a license agreement. So, in accordance with Art. 1237 of the Civil Code of the Russian Federation, the licensee is obliged to submit to the licensor reports on the use of RIA, unless otherwise provided by the license agreement. If the contract does not contain conditions on the period and procedure for submitting reports, the licensee is obliged to submit such reports at the request of the licensor. During the term of the license agreement, the licensor is obliged to refrain from any actions that could hinder the licensee from exercising the granted rights to use RIA. If the use of RIA goes beyond the rights granted, this entails liability for violation of the exclusive right to RIA. The general provisions on obligations (Articles 307-419 of the Civil Code of the Russian Federation) and on the contract (Articles 420-453 of the Civil Code of the Russian Federation) apply to agreements on the disposal of the exclusive right to RIA, including license agreements, unless otherwise established by the rules of Section 7 Civil Code of the Russian Federation. To ensure the exercise of the right to establish business entities, Law 217-FZ initially introduced changes to the following legislative acts of the Russian Federation: 1. The Federal Law of July 24, 2007 N 209-FZ "On the development of small and medium-sized businesses." 2. Federal Law No. 14-FZ of February 8, 1998 “On Limited Liability Companies”. 3. Federal Law No. 127-FZ of August 23, 1996 “On Science and State Scientific and Technical Policy”. 4. Federal Law No. 125-FZ of August 22, 1996 “On Higher and Postgraduate Vocational Education”. "Collection of Legislation of the Russian Federation" 1996, N 35, art. 4135. 5. Federal Law No. 7-FZ of January 12, 1996 “On Non-Commercial Organizations” and the Federal Law “On Autonomous Institutions”. 6. To the Civil Code of the Russian Federation. The adoption of Law No. 217-FZ required amendments to the Civil Code of the Russian Federation in terms of regulating the legal status of state (municipal) institutions. Federal Law No. 83-FZ of May 8, 2010 “On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Improvement of the Legal Status of State (Municipal) Institutions” amended the Civil Code of the Russian Federation, which are aimed at eliminating obstacles for the use of RIA “Collection” by budgetary institutions legislation of the Russian Federation", 10.05.2010, N 19, art. 2291.. Clause 1 of Article 296 of the Civil Code of the Russian Federation is set out in a new wording: “1. An institution and a state-owned enterprise, to which property is assigned on the basis of the right of operational management, own, use this property within the limits established by law, in accordance with the goals of their activities, the purpose of this property, and, unless otherwise provided by law, dispose of this property with the consent of the owner of this property. property." Article 298 of the Civil Code of the Russian Federation is also set out in a new wording, which provides that a budgetary institution, without the consent of the owner, is not entitled to dispose of especially valuable movable property assigned to it by the owner or acquired by a budgetary institution at the expense of funds allocated to it by the owner for the acquisition of such property, as well as real estate . The rest of the property that is under its right of operational management, the budgetary institution has the right to dispose of independently, unless otherwise provided by law. A budgetary institution has the right to carry out income-generating activities only insofar as it serves the achievement of the goals for which it was created, and corresponding to these goals, provided that such activities are indicated in its constituent documents. The income received from such activities and the property acquired at the expense of these incomes shall be placed at the independent disposal of a budgetary institution. In order to implement Law N 217-FZ, the Ministry of Education and Science of the Russian Federation developed recommendations containing special norms that fixed the mechanism for the creation of budgetary scientific and educational institutions of business entities for the practical application (implementation) of RIA: 1. Letter of the Ministry of Education and Science of the Russian Federation N ВМ-788/04 of August 07, 2009 “On the implementation of the federal law of August 2, 2009 No. 217-ФЗ “On amendments to certain legislative acts of the Russian Federation on the creation of budgetary scientific and educational institutions of business companies for the purpose of practical application (implementation) of the results of intellectual activity. 2. Letter of the Ministry of Education and Science of the Russian Federation No. ВМ-790/04 of August 07, 2009 “On the implementation of the federal law of August 2, 2009 No. 217-FZ “On amendments to certain legislative acts of the Russian Federation on the creation of budgetary scientific and educational institutions of business entities for the purpose of practical application (implementation) of the results of intellectual activity”. 3. Letter of the Ministry of Education and Science of the Russian Federation N 20-1834 of December 3, 2009 "On the application (implementation) of the results of intellectual activity by budgetary scientific and educational institutions of higher professional education" (together with the "Methodological recommendations for the creation of budgetary scientific and educational institutions of higher professional education of economic companies for the purpose of practical application (implementation) of the results of intellectual activity" (hereinafter - Guidelines). The Methodological Recommendations are aimed at the implementation of a unified organizational and methodological support for the activities of educational institutions subordinate to the Federal Agency for Education, when creating business entities in order to apply (implement) RIA and establish the procedure for: Conducting an inventory of intellectual property assets created in the institution in the course of fulfillment of government contracts, agreements, at its own expense, as well as those acquired from third parties under agreements on the alienation of exclusive rights; Definitions of the list of RIA, including the assessment of protectability, for practical application in the business entity created by the institution; Making changes to the charter of the university planning the creation of a business entity; Registration of the exclusive rights of the university to RIA; Statement of intangible assets for budget accounting; Monetary value of the right to use exclusive rights to RIA; Choice of organizational and legal form, determination of the location and size of the authorized capital of a business entity and preparation of constituent documents for the establishment of a business entity for the purposes of practical application (implementation) of RIA; State registration of a business company and notification of the Ministry of Education and Science of the Russian Federation about its creation; Formation of the authorized capital of the created economic company; Spending profits (dividends) received from the activities of a business entity. The mechanism for creating business companies and accounting for RIA, created by the specified legislation, will be discussed further. From a legal point of view, the creation of a small innovative enterprise is no different from the creation of any other commercial companies - trading, intermediary, manufacturing, etc. An entrepreneur who wants to create a small innovative enterprise must prepare the company's charter and, if he is not the sole owner of the company being created, the memorandum of association. Prepared documents must be submitted to the tax office, paying the appropriate fee and forming the authorized capital. If an entrepreneur does not have enough time or desire to prepare documents himself, then he can contact a law firm that prepares documents for registration and actually registers with tax and other state authorities. The cost of services of such organizations, as a rule, is acceptable for an entrepreneur opening his own business. Any commercial enterprise, including an innovative company, from the moment of its inception, must conduct economic activities that generate income sufficient to at least cover the costs of organizing accounting at the enterprise, maintaining an office (if any), wages personnel (if any), payment of telephone bills, Internet costs, etc. In contrast to the business associated with the production of traditional products or the sale of a finished product, an R&D entrepreneur first needs to create a product - invent, prototype, test it, certify it, and only then begin mass production and sale on the market. Of course, the latter is true only if the entrepreneur intends to manufacture the products he has developed at all, and not to sell patents for the manufacture of a new product he has created or for the replication of a new service he has developed. In all cases, an entrepreneur who decides to innovate must understand that he must have the funds to maintain the company's activities before selling a newly created service or product on the market. In addition to funds for financing R&D to create a new product or service, such an entrepreneur must have a reserve to cover unplanned losses: delaying R&D, emergency situations, failure to obtain the required result, etc. (see chapter 9). Thus, either an entrepreneur engaged in innovation must have another business, the income from which he can use to finance R&D in his innovative company. Or such an entrepreneur must have a reserve of funds sufficient to pay for all future costs of R&D and the commercialization of their results. Or he must win a grant to finance his company's R&D. It should be noted that it is advisable to engage in any traditional business and finance the initial stage of creating an innovative company from it only if at least two partners work in the business. One of the partners should devote most of his time to maintaining a traditional business that is currently profitable, and the second should concentrate on the development and development of an innovative product. Moreover, business partners should aim to "promotion" of an innovative company. Currently, financial institutions are being created in Russia to finance the start of an innovative business from funds allocated as grants and targeted funding for R&D in small companies. However, the system of financing innovative projects in the country is just being formed, and so far few projects are actually financed under such a system. Therefore, when planning the business of a small innovative enterprise, it is better to rely on the fact that the initial stage of creating such a company will be implemented by the entrepreneur at his own expense. The prospect of obtaining external financing should be seen as an "added bonus" that improves the financial condition of the company. Russian legislation provides for some benefits for innovative enterprises. Currently, the following documents have been sent to support innovative companies: the Law “On State Support for Small Business in the Russian Federation” dated June 14, 1995, which provides for the creation of a Small Business Support Fund; Decree of the Government of the Russian Federation of December 31, 1999; The Tax Code of the Russian Federation, Part II (2000), which provides for certain tax benefits when financing innovative activities of organizations. In addition, in some subjects of the Federation, documents are adopted at the local level aimed at creating favorable conditions for the development of small innovative entrepreneurship in the region. The regions of Russia with the most developed local legislation supporting the regional innovation process include Moscow, St. Petersburg and Yekaterinburg. An important aspect of any business, and even more innovative, is marketing. For innovative companies focused on the creation of specific products and services for the market, properly organized marketing research is of paramount importance. Generally speaking, in a market economy, the ability to sell your product and knowledge of the market are often more valuable than well-executed scientific research. In practice, there are cases when the results of a promising scientific work did not enter the market, and a weaker development began to be replicated on a massive scale, bringing significant profit to its creators. The secret is simple - a more qualified management team, who knows the market well and is able to negotiate with the investor, was engaged in promoting such a development. Since marketing research must be performed by an entrepreneur when opening an innovative company, and the market value of such services is very significant, the question of conducting them often becomes a “stumbling block” in creating a small business. If the entrepreneur's budget does not allow for the necessary research to be carried out in full, then so-called "guerrilla marketing" techniques can be used to obtain more or less reliable market data. As a rule, the accuracy of such forecasts is about 50-70%, which is quite acceptable for the stage of initiating a new innovative project. The second way to reduce initial marketing costs is to hire a marketing specialist in an innovative company. This specialist should be well acquainted with the practice of marketing research to assess the market attractiveness of an innovative idea and organize their implementation in the company in the required volume. In addition, an entrepreneur creating a new innovative enterprise can receive the necessary assistance in conducting market research in a business incubator. After the necessary information about the market is obtained, it is possible to approximately predict the volume of future production and the cost of products (services). The entrepreneur must carefully plan the economics of the future business, i.e. draw up a business plan. Almost all students have been dreaming of launching their own startup since their college days, which will work no worse than Zuckerberg's or, at least, Durov's. Social networks, games, new services open here and there. Which way to go, what form of business to choose, how to develop at the most important initial stage and break less firewood? I'll tell you about one tested option. In any business there is a stage of "individual entrepreneur", but there comes a time when you understand that there will be no further development without opening a legal entity. Solving organizational problems when opening can cover you so much that there may not be time and effort to develop the business idea itself. Help can come from a completely unexpected direction - contact the institute that you graduated from (or are finishing). 10 years ago, our team did just that, a laboratory of 30 meters became our first office, and employees began to teach at the Department of Information Technology. Since then, much water has flowed under the bridge and much has changed. Over the past two years, the activity of Russian universities has sharply increased in the direction of creating economic companies together with business structures and individuals. One of the reasons for this was the entry into force of Federal Law N 217-FZ on August 15, 2009. Business interestCreating an innovative enterprise together with the university brings a number of great opportunities. On the one hand, the university is a monstrous, clumsy and extremely bureaucratic structure, in the best traditions of Soviet state institutions. On the other hand, it is an organization with a well-formed infrastructure, including hundreds of premises, thousands of pieces of equipment, LANs, power networks, etc. Even if you do not take into account the benefits of 217-FZ, cooperation with the university provides a number of advantages:
In addition, 217-FZ offers a number of advantages:
Our selfish interestAfter reading the above information in the middle of 2011, we decided to open a joint venture for new business areas. Our aspirations were as follows (I will explain some):
University interestDo universities need it? Yes, it is, and there are several reasons. For starters - not the most positive, but typically Russian moment. The adoption of Federal Law No. 217 was accompanied by loud speeches by Dmitry Medvedev and Andrey Fursenko, who called on universities to create small innovative enterprises together. In Russia, the wishes of leaders are usually perceived as orders. Accordingly, Rosobrazovanie exerted some pressure on universities in this direction, requiring them to create companies. The situation was aggravated by the 83-FZ, according to which state institutions are now obliged to earn money and conduct commercial activities.
How to open a company?The founders of a small innovative enterprise are 2 parties: the university and the business. The latter can be represented by two options:
Having an established business (and for some political reasons), we became the founder of a small innovative enterprise as a legal entity. Formation of a package of documentsHaving familiarized ourselves with 217-FZ and other regulatory documents on the topic, with the support of two key persons (the head of the department and the vice-rector for scientific work), we began to prepare documents. Operational work was carried out with the head of the innovation department of the university, who oversaw the work on opening both ours and previously created companies. Having received from him a package of "blanks" of constituent documents, we edited them for our tasks and gave them to a third-party company for registration of an LLC.Overview of required documents:
What to pay attention to
Choice of location (ex. legal address)Given that in the future the company will be located on the territory of the university and will officially rent the premises, it is advisable to indicate the address of the university as the location of the company, as we did.TaxationWhen opening a company, it is necessary to immediately inform the tax office (in a separate application) about the type of taxation that will be used by the company (simplified simplified tax system or general tax system). Here it is necessary to consult with accountants - we recommend starting companies to choose a simplified one.Bank accountIt was necessary to provide notarized copies of the statutory documents of all founders. Institute documents can be obtained from the legal department or, as in our case, notarized copies can be made from the originals issued against receipt to an employee of the university. The difficulty was caused by the absence of a lease agreement for premises (there is such a requirement of the Central Bank of the Russian Federation to combat money laundering and terrorism). As a temporary solution to the issue, a letter of guarantee from the university on the provision of premises for rent helped. The fact of opening an account must be reported to the tax and funds, otherwise huge fines will follow.Letter to CISNThe decision on the compliance of the established enterprise with the Federal Law 217-FZ is made by the Center for Research and Statistics of Science. Until the enterprise is included in the register of business entities established under 217-FZ, the company will not be able to enjoy the benefits and benefits prescribed by law. Therefore, a very important step will be the preparation and sending of a Letter of Notification to TsISN on the creation of a small business. Along with the letter, you need to send a pack of certified copies of constituent and some other documents. By the way, it is not necessary to certify them with a notary (so as not to waste money): copies of all constituent documents can be certified by the general director of the established society, and copies of documents related to the university are certified by the administration.roomSo that your company is not virtual and employees are not scattered around the department, you need to resolve the issue with the premises. Direct, but not the best option - to conclude a lease agreement with the university. By the way, the economic and administrative service of the university will not like it, because. you are eligible for benefits and they will not receive additional extrabudgetary funds. An option that will suit everyone is the creation of a specialized educational and scientific laboratory at the department. Cathedral premises are not included in the rental turnover, business executives have no complaints, and it is easier to negotiate with the department, partially closing the educational and scientific process, improving reporting, not to mention contract work.The procedure for the formation of the laboratory in the documents: Memo on the creation of the educational and scientific laboratory of UNL → Agreement on cooperation → Order of the Rector → Regulations on UNL Results in accordance with the tasks set
P.S. The new company was named URANSOFT Thanks to staskin1 for help in preparing the article 24.02.2015
The authors: Commercialization of scientific developments is an important and difficult task. Today, universities can successfully solve it by creating small innovative enterprises. What needs to be done at the R&D stage and the formation of an innovative project? Where can I find the necessary funding? How to create a successful innovative enterprise? What is needed for its development? In this article, we will share the successful experience of the scientific and innovative departments of the university complex of BSTU. V.G. Shukhov, which resulted in the creation of about 100 small innovative enterprises. The sequence of necessary actions is shown in the form of a chain of steps that must be carried out for the successful commercialization of your idea. Today, most universities have a huge scientific and technical potential. Scientific schools, unique equipment and financial support from the state in the form of grants and competitions in various priority areas make it possible to successfully conduct research in fundamental and applied sciences. However, initially, an innovator should be focused not only on achieving a scientific and technical result, but also on receiving income from the results of his intellectual activity. The task of the university is to create an environment, including teams and divisions, that will help achieve the goal - to find a potential customer, start using the development, find problems in the business and convey them to the scientist. Thus, the key factor in the commercialization of the results of intellectual activity (RIA) created at universities is the creation of an efficient infrastructure and a favorable innovation climate. (Fig.1.) Experience in creating small innovative enterprises with the participation of BSTU. V.G. Shukhov allows us to state that at each step of the innovator’s movement, the efficiency of the university’s innovation infrastructure plays a big role, the interaction of all its structural divisions with one goal - to support the innovator: to provide all the necessary information about possible financing, to assist in identifying and legally protecting the results obtained, and “launching” a small innovative enterprise. An important component is also cooperation with representatives of the real sector of the region's economy. This allows: Research work Identification of the results of intellectual activity Patent research is regulated by GOST R15.011-96. The main objectives of patent research are: The criteria determining the possibility of legal protection of the results of intellectual activity as objects of intellectual property are regulated by the Provisions of the Civil Code (CC) of the Russian Federation, Part 4. At the first stage of the analysis of information obtained in the course of patent marketing and scientific research, it is advisable to introduce a commercial secret (know-how) mode for the identified results of intellectual activity. This choice of protection is justified by the fact that at the early stage of the project the potential market for innovative development was not sufficiently studied, some of the identified RIAs need to be finalized. If a decision is made on patenting or state registration of one or another RIA, a procedure for preparing and filing an application with the relevant patent office, examination, and payment of fees is necessary, which is a very laborious and time-consuming process. Legal protection as know-how will help avoid premature disclosure of information and loss of competitive advantage at an early stage of an innovative project. Regulate relations related to the establishment, change and termination of the trade secret regime in relation to information that has actual or potential commercial value, Federal Law "On Trade Secrets" dated July 29, 2004. No. 98-FZ; Decree of the President of the Russian Federation of March 6, 1997 No. 188 "List of confidential information." Legal protection of the results of intellectual activity Regional procedure, according to which foreign patenting is carried out by filing an application with the regional patent office. Such regional treaties include the European and Eurasian Patent Conventions, as well as the Agreement Establishing an African Intellectual Property Organization (French-speaking countries) and the Agreement Establishing an African Regional Organization for the Protection of Industrial Property (English-speaking countries). International procedure, which justifies itself when the applicant is interested in protecting his invention on the territory of the maximum possible number of states, including on the territory of states that are not parties to any regional convention or agreement. In the field of inventions and utility models, the Patent Cooperation Treaty (PCT) is one of the international treaties. The choice of the patenting procedure must be made taking into account the requirements of the Civil Code of the Russian Federation, Part 4 (Article 1395), which obliges you to file the first application for a patent with the Federal Service for Intellectual Property of the Russian Federation or, for example, in the case of patenting under the PCT procedure, be sure to indicate in the list of countries Russian Federation. The scheme of fixing the rights to the results of intellectual activity created at the expense of budgetary funds is shown in Fig. 6. On October 1, 2014, Federal Law No. 35-FZ "On Amendments to Parts One, Two and Four of the Civil Code of the Russian Federation and Certain Legislative Acts of the Russian Federation" comes into force. State accounting Relations between the subjects of scientific and scientific and technical activities, public authorities and consumers of scientific and scientific and technical products (works and services), including the provision of state support for innovative activities, are regulated by Federal Law No. 127-FZ of August 23, 1996 "On Science and State Science and Technology Policy" with amendments and additions that came into force on 01.01.2014. On January 1, 2014, Decree of the Government of the Russian Federation dated April 12, 2013 No. 327 “On the Unified State Information System for Accounting for Civil Research, Development and Technological Works” came into force. According to its Regulations, the following are subject to mandatory registration: The benefits of state accounting are presented in the diagram (Fig. 7). Accounting is carried out online on the EGISU R&D website. The creation of a small innovative enterprise (SIE) on the basis of a university is one of the effective options for introducing intellectual property objects created by the university into civil circulation. Profit is obtained through own production and monopoly production of products that have a title of protection (IT technologies, small-scale production), or through the sale of licenses. In the case of large-scale development at this stage, it is possible to create a prototype or pilot version of the technology to search for further investment in the project. The creation of an SIE has a number of positive aspects both for the university and the innovator, and for the economy of the region and the country as a whole. The advantages of creating a small innovative enterprise with the participation of a university are shown in the diagram (Fig. 8).
Intangible assets include objects of non-financial assets intended for repeated and (or) permanent use on the basis of the right of operational management in the activities of an institution that meet the following conditions: In order to determine the initial cost of an intangible asset, the following expenses are included during its creation: Not included in the amount of actual investments: Stage 2. Assessment of the right to use RIA, which will be a contribution to the authorized capital of a business company or partnership. Stage 3. Determination of the organizational and legal form and the created enterprise The choice of the organizational and legal form, determination of the location and size of the authorized capital of a business company (partnership), as well as the preparation of constituent documents for the creation of a business company (partnership) for the purposes of practical application (implementation) of RIA is carried out solely by the institution or jointly with the co-founder (s) of the business society. Business companies may be created in the form of a joint-stock company, a limited liability company or an additional liability company. Thus, taking into account the current versions of the Federal Laws of 08.02.1998 N14-FZ "On Limited Liability Companies" and of 26.12.1995 N208-FZ "On Joint-Stock Companies", we can conclude that Art. 103 of the Federal Law of December 29, 2012 N273-FZ "On Education in the Russian Federation" allows the participation of budgetary and autonomous educational organizations in the establishment of the following forms of commercial organizations: The share of the university in the authorized capital of the newly created enterprise is not regulated in any way. We recommend that the share of the university in the authorized capital of the company be left at the level of 10-30%. The principle applies here - if there is an investor or a high interest of RIA authors in the development of society, the share is smaller. The current practice shows that the business companies created in accordance with the Federal Law No. meet the requirements of innovative business, but are not free from shortcomings that make it difficult to use them in innovative business projects. It is these restrictions that impede the possibility of stage-by-stage financing of innovative business, the possibility of flexible protection of the interests of investors and right holders at various stages of product commercialization. The form of economic partnerships is the most flexible and convenient for carrying out the processes of commercialization of the results of intellectual activity. Economic partnership in accordance with Article 2. "A company created by two or more persons is recognized. According to the Federal Law of December 3, 2011 N380-FZ "On Economic Partnerships", this is a commercial organization, in the management of which the participants of the partnership, as well as other persons take part, to the extent and to the extent, provided for in the partnership management agreement. The form of economic partnerships is the most flexible and convenient for carrying out the processes of commercialization of the results of intellectual activity, since it provides for: In fact, economic partnership makes it possible to establish rules that are convenient for a particular innovative business project, including the possibility of concluding an agreement on managing the partnership not only by all partnership participants, but also by employees, primarily the authors of the commercialized results of intellectual activity. In some cases, it is possible to directly attract state development institutions, private investors before creating a small business. Having received support in the form of investments, the final decision on the organizational and legal form of the IIP should be made. Stage 4. Decision to establish a business entity or partnership. Determination of shares in the authorized capital The decision to establish a business company is made at a meeting of the founders of the business company, at which its charter is approved. If there are two or more founders, the decision to establish a business company is documented in the minutes of the general meeting of the founders of the company. In accordance with paragraph 4 of Art. 103 of the Federal Law of December 29, 2012 N 273-FZ "On Education in the Russian Federation", educational organizations of higher education have the right to attract other persons as founders (participants) of a business company or participants in a business partnership. Previously, for higher education institutions in accordance with Art. 2 of the Federal Law of August 2, 2009 N 217-FZ (expired on September 1, 2013), restrictions were established on the share of this higher educational institution in the authorized capital of a joint-stock company or a limited liability company. Currently, these restrictions have been canceled - Federal Law of December 29, 2012 N 273-FZ "On Education in the Russian Federation" does not contain requirements for the shares of the founders, which are determined by agreement of the parties. Stage 5. Registration with the Federal Tax Service Stage 6. Notification of the Ministry of Education and Science of Russia A notice of the establishment of a business company or business partnership must be sent within seven days from the date of making an entry in the unified state register of legal entities about the state registration of business companies (CW) and business partnerships (CP). The organization of work on accounting for notifications is entrusted to the Department of Science and Technology of the Ministry of Education and Science of Russia and the federal state budgetary scientific institution "Research Institute - Republican Research Scientific and Consulting Center for Expertise" (FGBNU NII RINKTSE). Accounting for notifications about the creation of CW (CP) provides for a mandatory registration procedure on the website of the system "Accounting and monitoring of small innovative enterprises in the scientific and educational sphere" and entering information about CW (CP) into the database by filling out an interactive questionnaire. After the administrator of the system checks the data on the created CS (CP), the relevant information is placed in an open database on the system website, a notification is automatically generated, which must be printed on the letterhead of the founding organization of the CS (CP), signed by the head of the organization and sent to the Ministry of Education and Science of Russia at : st. Tverskaya, 11, Moscow, GSP-3, 125993. In the event of a change in the composition of the data on the CW (CP) entered in the database, for example, the appearance of information about a license agreement, a change in the composition of the founders, etc., the registered user of the system enters the relevant information into the interactive questionnaire. Order of the Ministry of Education and Science of the Russian Federation dated January 24, 2014 No. 43 "On the organization in the Ministry of Education and Science of the Russian Federation of work on accounting for notifications on the establishment of business entities and business partnerships." In accordance with paragraph 4 of Part 1 of Article 58 of the Federal Law "On Insurance Contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and Territorial Compulsory Medical Insurance Funds" of the Government of the Russian Federation, it was established that the maintenance of a register of notifications of the creation of economic companies and economic partnerships created by budgetary scientific and autonomous scientific institutions or educational organizations of higher education, which are budgetary or autonomous institutions, is carried out by the Ministry of Education and Science of the Russian Federation. The register is signed by the Department of Science and Technology and transferred to the bodies controlling the payment of insurance premiums (the Pension Fund of the Russian Federation and the Social Insurance Fund of the Russian Federation) in printed form and on electronic media. Decree of the Government of the Russian Federation of 04.03.2011 N 146 (as amended on 12.12.2013) "On maintaining a register of accounting for notifications of the establishment of business companies and business partnerships created by budgetary scientific and autonomous scientific institutions or educational organizations of higher education, which are budgetary or autonomous institutions, and the procedure for its transfer to the bodies of control over the payment of insurance premiums. Order of the Ministry of Education and Science of the Russian Federation dated February 14, 2014 No. 117 “On Approval of the Register Form for Accounting for Notifications of the Establishment of Business Companies and Business Partnerships Established by Budgetary Scientific and Autonomous Scientific Institutions or Educational Organizations of Higher Education Being Budgetary or Autonomous Institutions.” Stage 7. Conclusion of a license agreement with an established business entity (partnership) Law N 273-FZ does not determine the type of license agreement, therefore, according to the Civil Code of the Russian Federation, a license can be simple (non-exclusive) and exclusive. Under a license agreement, one party - the owner of the exclusive right to the result of intellectual activity - the university (licensor) grants or undertakes to grant the other party - a business company or business partnership (licensee) the right to use such a result within the limits provided for by the agreement. According to paragraph 1 of Art. 1233 of the Civil Code, the conclusion of a license agreement does not entail the transfer of the exclusive right to the licensee. Such a regulatory approach is a reasonable guarantee of the preservation of intellectual property for universities. Insurance premiums Article 58 "P. 4 for business companies and business partnerships whose activities consist in the practical application (implementation) of the results of intellectual activity (programs for electronic computers, databases, inventions, utility models, industrial designs, breeding achievements, topologies of integrated circuits, production secrets (know- howe), the exclusive rights to which belong to the founders (participants) (including jointly with other persons) of such economic companies, participants in such economic partnerships - budgetary scientific institutions and autonomous scientific institutions or educational organizations of higher education that are budgetary institutions, autonomous institutions. The register of registration of notifications on the establishment of business companies and business partnerships is maintained by the federal executive body authorized by the Government of the Russian Federation and transferred to the body controlling the payment of insurance premiums no later than the 1st hour the beginning of the month following the reporting period, in the manner determined by the Government of the Russian Federation. For payers of insurance premiums specified in paragraph 4 of the Law, the following rates of insurance premiums are applied (Table 2). The payers of insurance premiums specified in paragraph 4 of the Law apply the specified rates of insurance premiums if they fulfill the following conditions: Determining the status of a small and medium business entity The average number of employees for the previous calendar year must not exceed the following limits for the average number of employees: Proceeds from the sale of goods (works, services) excluding value added tax or the book value of assets (residual value of fixed assets and intangible assets) for the previous calendar year must not exceed the limit values established by the Government of the Russian Federation. Decree of the Government of the Russian Federation of July 22, 2008 N 556 established the limit values for micro-enterprises - 60 million rubles, for small - 400 million rubles, medium - 1000 million rubles). Enterprises that meet the criteria established by the Law are entitled to participate in state programs to support small and medium-sized enterprises, receive benefits, as well as specialized services. So, in the Belgorod region there is a fund for supporting small, medium-sized businesses, in which more than 30 MIP BSTU named after. V.G. Shukhov received on a competitive basis, by submitting the relevant business plans, financial support in the amount of up to 0.5 million rubles for business development. Possible steps for the development of the enterprise.
Support tools: targeted concessional loans for research and development, provision of consulting services on the full range of innovation management and company development issues. The main conditions for financial support of projects of innovative enterprises implemented with the support of scientific institutions of state academies of sciences: the selection of projects is carried out according to the results of the Competition. The Applicant's net assets must exceed the amount of the requested loan. If the amount of the Applicant's net assets is insufficient, he may propose to the Fund the provision of additional security for the performance of obligations. Loan size - from 30 to 100 million rubles. Loan term - up to 60 months. Repayment is carried out within 37 - 60 months. The loan is accompanied by mandatory monitoring of the intended use of the funds received and control over the implementation of the R&D project. Fund for Assistance to the Development of Small Forms of Enterprises in the Scientific and Technical Sphere (Bortnik Fund)- a state non-profit organization in the form of a federal state budgetary institution. OJSC Russian Venture Company (OJSC RVC)– State Fund of Funds and Development Institute of the Russian Federation, established in June 2006. The goal is the formation and development of its own venture capital industry in the Russian Federation. RVC invests through venture funds created jointly with private investors. The total number of funds formed by RVC OJSC is 13 (including 2 funds in foreign jurisdictions). The priority areas of the company's activity are: Open Joint Stock Company RUSNANO acts as a co-investor in projects to create new or expand existing enterprises manufacturing products using nanotechnology. RUSNANO's main form of investment is a contribution to the charter capital of a project company. Conditions for using this financial instrument: Additional forms of project financing are loans to project companies and guarantees for obligations of project companies to third parties. These forms of financing are used in exceptional cases, while a loan is a priority form of financing in relation to a guarantee. It is not allowed to simultaneously provide a loan and a guarantee within the framework of financing one project. Skolkovo Innovation Center is designed to create a sustainable self-developing ecosystem of high-tech innovations in Russia. Participants of the Skolkovo Innovation Center are companies that have proposed new ways to solve the most important scientific, social and economic problems in key areas - clusters: Capabilities: Management of small innovative enterprises Optimal management of a large number of SIEs is carried out through the creation of a Management Company. Thus, by combining the efforts of the university and the state, an innovator can commercialize his idea with maximum efficiency (Fig. 12). Since August 2009, universities and research institutions have received the right to create small innovative enterprises for the purpose of practical application of the results of intellectual activity. Budgetary institutions received the right without the consent of the owner of their property(subject to notification of the federal executive body) become founders(including jointly with other persons) business entities whose activities consist in the practical application of the results of intellectual activity. It is important to note that when creating such a small innovative enterprise, the exclusive rights to the results of intellectual activity should belong to the institutions mentioned above. models, industrial designs, etc.). The monetary value of the right to the result of intellectual activity contributed to the authorized capital on the basis of a license agreement, in accordance with paragraph 2 of Article 103 of Federal Law 273-FZ “On Education in the Russian Federation, is carried out by a decision by all founders of a business entity. The peculiarities of the formation of the authorized capital of a small innovative enterprise in the form of a limited liability company can be distinguished by the following example: suppose that an educational institution decides to create a small innovative enterprise in order to practically use such a result of intellectual activity as a computer program, while the founders, together with such an educational the institution will be two citizens. As a contribution to the authorized capital of a small innovative enterprise, the educational institution will make a computer program, the cost of which is 40 thousand rubles, and both individuals will make cash contributions in the amount of 10 thousand rubles each. In this case, it must be remembered that from September 1, 2014, amendments were made to the Civil Code of the Russian Federation, according to which a monetary contribution in the amount of 10 thousand rubles must be made to the authorized capital of a limited liability company. In our example, both individuals will make cash deposits with a total value of 20 thousand rubles, thus, the requirements of the law will be met. With regard to the computer program contributed to the authorized capital as an intangible asset under a license agreement, it is a non-monetary contribution, respectively, the founders are obliged to involve an independent appraiser in evaluating the cost of the computer program (at the same time, the founders are not entitled to overestimate the value of the non-monetary contribution determined by such an appraiser ). If you wish to register a small innovative enterprise, please contact Logos law firm! We provide registration services since 1998 and we have highly qualified professionals in our staff who will help you understand all the intricacies of registering a small innovative enterprise, as well as fulfill your order in a quality and timely manner. |
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