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Annual report of Rospatent 2011 (Section 2)

 

Section 2. Activity of the Federal Service for Intellectual Property on supervision in the area of legal protection and utilization of the results of R&D received at the expense of the federal budget

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In 2011 the Federal Service for Intellectual Property in accordance with the Government Decree of November 18, 2006 № 696 «On supervision in the area of legal protection and utilization of results of R&D of civil designation received at the expense of the federal budget» continue the work on checking of organizations-parties to the state contracts in the area of legal protection and utilization of R&D results received at the expense of the federal budget.

2.1. Supervision in the area of legal protection and utilization of R&D received at the expense of the federal budget

According to annual plan for scheduled audits the Federal Service for Intellectual Property checked the activity of 30 organizations-parties to the state contracts to fulfill R&D in five federal districts of the Russian Federation (Table 2.1.1 and Chart 1).

Тable 2.1.1

Distribution of the Checked Organizations by Federal Districts of the Russian Federation

Federal District

City

Number of Checked Organizations

Share of the Total Number of Checked Organizations

Central District

Moscow, Troizk, Vladimir, Chernogolovka, Obninsk, Obolensk

21

70,0%

Siberian District

Novosibirsk

4

13,4%

Volga District

Samara

1

3,3%

Northwest District

Saint-Petersburg, Gatchina

3

10,0%

South District

Gelendzhik

1

3,3%

Chart 1

 

The checked organizations included 9 Russian Academy of Science’ Institution, 8 Federal State Unitary Enterprises, 7 State Educational Institutions of Higher Professional Training, 2 commercial companies, 2 Federal State Institutions, 1 association, 1 Russian Research Center (Chart 2).

Chart 2

Distribution of the checked  Organizations-Executors According to Legal Type of Organizations

Totally in 2011 302 state contracts were analyzed, the customers to which were the Ministry of Education and Science of the Russian Federation, the Ministry of Industry and Trade of the Russian Federation, the Ministry of Health and Social Development of the Russian Federation, the Federal Service for the Oversight of Consumer Protection and Welfare, the Federal Medical and Biological Agency, the Federal Agency on Mineral Resources, the Ministry of Natural Resources and Environmental Protection of the Russian Federation, the State Nuclear Energy Corporation «RosAtom», the Foundation for the Promotion of Development of the Small Forms of Enterprises in Scientific and Technical Sphere (Chart 3).

Chart 3

Number of the Checked State Contracts According to the Contracting Authority

The amount of financing of the checked state contracts exceeds 10 bln Rubles (at the expense of the federal budget - 6 bln 861 mln 30 thousand rubles, at the expense of non-budget funds - 3 bln 727 mln 34 thousand rubles).

The analysis of the checked state contracts demonstrated that in 216 state contracts (72% of total checked contracts) the specific amount and form of legal protection of the results received were defined by the terms of performance specification.

In more than 70% of the checked state contracts exclusive rights on intellectual property belong to organizations-executors of the state contracts.

Within fulfillment of state contracts 125 patents for inventions, 49 patents for utility models, 15 certificates for computer programs, 1 certificate for topography of integrated circuits and 1 certificate for database were granted, and 113 patent applications for inventions, 2 patent applications for utility models were filed. With regard to 78 results the commercial secret regime was established.

Thus, the legal protection was granted to 384 results of intellectual activity (Table 2.1.2).

Table 2.1.2

Number of the Results of Intellectual Activity Granted the Legal Protection

State contracting authority

Number of state contracts granted the legal protection of created results

Ministry of Education and Science of the Russian Federation

293 results were registered according to 137 contracts:

  • 115 patents for inventions;
  • 45 patents for utility models;
  • 12 certificates for computer programs;
  • 1 certificate for topography of integrated circuits;
  • 1 certificate for database;
  • 86 patent applications for inventions;
  • 1 patent application for utility model;
  • with regard to 32 results the commercial secret regime was established

Ministry of Industry and Trade of the Russian Federation

87 results were registered according to 19 state contracts:

  • 10 patents for inventions;
  • 4 patents for utility models;
  • 26 patent applications for inventions ;
  • 1 certificate for computer program;
  • with regard to 46 results the commercial secret regime was established

the Federal Agency on Mineral Resources

2 results were registered according to 2 state contracts:

  • 1 certificate for computer program;
  • 1 patent application for utility model

the Ministry of Health and Social Development of the Russian Federation

2 results were registered according to 2 state contracts:

  • 1 certificate for computer program;
  • 1 patent application for invention

As a result of checking in 2011, violations of the law requirements by executors of the state contracts in the area of legal protection and utilization of R&D results and of provisions of concluded state contracts were revealed:

1. Violations of submitting to contracting authority the information for state accounting of received results of intellectual activity were revealed in 108 state contracts in 27 checked organizations.

The norms of paragraph 4 and paragraph 6 «Statute on state accounting of R&D results of civil designation, received at the expense of federal budget», approved by the Decree of the Government of the Russian Federation of May 4, 2005 № 284, were violated in respect of submitting to contracting authority the information for state accounting and registration proceedings of results of intellectual activity received within fulfillment of state contracts.

2. Violations in respect of fixation of rights in results of intellectual activity were revealed in 18 checked organizations.

Fixation of rights regarding 74 results of intellectual activity was carried out with violations of conditions of state contracts in respect of allocation (fixation) of rights in received results in 30 state contracts.

The norm of paragraph 1 Article 1373 of the Civil Code of the Russian Federation was violated in respect of fixation of rights in created results of intellectual activity.

3. Violations in respect of ensuring legal protection for received results (in accordance with the performance specifications) were revealed in 16 organizations in 24 state contracts, of which:

  • in 13 organizations the absence of legal protection for results of intellectual activity created in the course of fulfillment of 18 state contracts was ascertained;
  • in 5 organizations the disconformity of legal protection for results of intellectual activity to the conditions formulated in the performance specification was revealed with respect to 6 checked state contracts.

The norm of Article 773 of the Civil Code of the Russian Federation in respect of fulfillment of work by executor in accordance with the performance specification was violated.

4. Violations in respect of patent research were revealed in 9 state contracts.

The norm of Article 773 of the Civil Code of the Russian Federation in respect of fulfillment of work by executor in accordance with the performance specification was violated.

While performing audit in 3 organizations the violations of state contracts conditions in respect of notification of contracting authority by executor about creation of protectable results were revealed.

A large number of violations of the state contracts conditions related to the contracts signed by the executor with co-executors, where the executor transmits to the co-executor the right in the results obtained of paragraph 1 of article 1373 of the Civil Code of the Russian Federation and provisions of the state contract. Such violation was revealed in 25 organizations.

As a result of audit the Acts of audit results reflecting violations of the law of the Russian Federation in the sphere of legal protection and utilization of results of intellectual activity, as well as the provisions of the state contracts were prepared, 30 checked organizations were prescribed to eliminate the identified violations.

22 organizations submitted reports on eliminating identified violations (implementation deadline for 8 directives — 1st quarter, 2012). The submitted reports demonstrated that the identified violations have been eliminated in due course in 13 organizations; the implementation of the rest 9 directives is left under control.

The results of intellectual activity obtained under 9 state contracts were implemented into production of organizations – executors of state contracts.

License agreements were not concluded in the frame of the checked state contracts. Thus, the level of commercialization of the results of intellectual activity remains low.

The reasons of such situation are the following:

1. Low demand of manufacturing sector for new domestic technologies.

Analysis of the results of audit of organizations-executors of state contracts shows that less than 8% of the research results were transferred to the stage of development work. Herewith organizations-executors in accordance with the performance specification develop performance specifications on development work after conducting research work (R&D).

2. Lack of supervision of contracting authorities over fulfillment of conditions of state contracts for execution of R&D.

The audit shows that the conditions of large number of state contracts do not specify aims and objectives of the conducted work, the procedure of obtaining legal protection is not defined for prospective results of intellectual activity, and the responsibilities for utilization of created results are not reflected.

3. Lack of interest of authors - developers of intellectual activity results obtained from the state contracts, in identifying, ensuring the legal protection and utilization for such results.

The audit showed that in many cases there were no contracts of payment of remuneration to the authors of results, which obtained the legal protection.

4. Lack or insufficient staffing of qualified personnel in organization departments that is responsible for ensuring the legal protection and commercialization of the results of intellectual property.

According to practice, the organizations that have departments and qualified personnel, results of intellectual activity including those received at the expense of federal budget, are ensured the legal protection, contracts with authors on payment remuneration are concluded and commercialization of such results takes place.

5. In accordance with the Federal Law of July 21, 2005 № 94-FZ «On Placement of Orders to Supply Goods, Carry out Works and Render Services for Meeting State and Municipal Needs» at the conclusion of state contracts to fulfill R&D prevailing value pertains to price proposed by participants of public tender.

With that such important criteria as experience of the organization in particular area and available scientific and technical reserve (the quantity of patents on inventions, utility model and industrial designs) do not acquire due cognisance.

In the reported year the Federal Service for Intellectual Property continues the activity in the field of informing the executors of government contracts and contracting authorities on fulfillment the law requirements in the sphere of intellectual property and performance of state function on supervision in the determined area.

These issues were discussed at the XV Science and Practice Conference «National Innovation-driven System and the Importance of IP Legal Protection in its Development» held at the premises of Federal Service for Intellectual Property 26-27 October, 2011 and the meeting with representatives of federal executive authorities and contracting authorities of R&D results of civil designation, held at the Ministry of Education and Science of the Russian Federation on November 24, 2011.

2.2. Results of intellectual activity, rights to which belong to the Russian Federation

Dynamics of patent activity, number of received applications, issued patents and certificates in the name of the Russian Federation in 2011 are represented in Table 2.2.

Table 2.2

Filling Applications and Issuing Patents and Certificates in the name of the Russian Federation in 2011

Indices

Inventions

Utility models

Computer programs, databases, topographies of integrated circuits

Industrial Designs

Total

Applications filed in 2011

489

150

329

7

975

Number of Valid Patents for Inventions, Utility Models, Industrial Designs and Certificates for Computer Programs, Databases and Topographies of Integrated Circuits issued in the name of the Russian Federation as of 31.12.2011

1142

439

572

16

2169

Issued in 2011

366

159

356

10

891

2.3. The enhancement of state control (supervision) in the area of legal protection and utilization of the results of R&D, received at the expense of the federal budget

Authority conferred to the Federal Service for Intellectual Property in the area of supervision was considerably expanded in accordance with the Presidential Decree of May 24, 2011 № 673 (hereinafter — the Presidential Decree).

Instead of supervision in the area of legal protection and utilization of R&D results of the civil designation, received at the expense of the federal budget, the Federal Service for Intellectual Property became responsible for supervision in the area of legal protection and utilization of the results of intellectual activity with a military, specialized or dual purpose, created at the expense of the federal provisions, as well as supervision in the determined area with respect to contracting authorities and executors of state contracts, involved conduction of R&D.

In 2011 the Federal Service for Intellectual Property within fulfillment of the Presidential Decree carried out activities on preparation legal acts of the Russian Federation, referred to enhancement of mechanism of supervision activity.

In particular, the Government Decree of January 26, 2012 № 9 adopted the Statute On the Control and Supervision in the Area of Legal Protection and Use of Results of Intellectual Activities of Civil Designation Created at the Expense of the Federal Budget, As Well As Control and Supervision in the Specified Area of Activities for State Ordering Parties and Organizations Executing State Contracts Envisaging R&D.

In December 2011 the Draft of the Government Decree regarding the adoption of the Statute On supervision in the area of legal protection and utilization of the results of intellectual activity with a military, specialized or dual purpose, created at the expense of the federal provisions, as well as supervision in the determined area with respect to contracting authorities and executors of state contracts, involved conduction of R&D was elaborated and forwarded to the Government of the Russian Federation.

Currently the Federal Service for Intellectual Property is drawing up the drafts of the relevant administrative provisions concerning the fulfillment of the state functions on supervision in the area of legal protection and utilization of the results of intellectual activity with a civil, military, specialized or dual purpose, created at the expense of the federal provisions, as well as supervision in the determined area with respect to contracting authorities and executors of state contracts, involved conduction of R&D.



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