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Annual report of Rospatent 2012 (Section 2)

 
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2.1. Supervision in the area of legal protection and utilization of the results of intellectual activity of civil, military, special and dual designation received at the expense of the federal budget

2.1.1. Checking of contracting authorities and organizations-parties to the state contracts, involved in carrying out R&D received at the expense of the federal budget

In 2012 the Federal Service for Intellectual Property (Rospatent) in accordance with its powers assigned by the Government Decree of March 21, 2012 № 218, performed the checking of contracting authorities and organizations-parties to the state contracts, involved in carrying out R&D for the purpose of supervision in the area of legal protection and utilization of the results of intellectual activity of civil, military, special and dual designation received at the expense of the federal budget.

Supervision in the established area is performed by Rospatent in accordance with the Government Decrees of January 26, 2012 № 9 «On supervision in the area of legal protection and utilization of the results of intellectual activity of civil designation, received at the expense of the federal budget, and supervision in the established field in respect of contracting authorities and organizations-parties to the state contracts, involved in carrying out R&D», and of April 26, 2012 № 402 «On supervision in the area of legal protection and utilization of the results of intellectual activity of military, special and dual designation received at the expense of the federal budget, and legal protection of the state interest in the established field in respect of contracting authorities and organizations-parties to the state contracts, involved in carrying out R&D».

In 2012, according to annual plan for scheduled audit of legal entities, Rospatent checked the activity of 38 contracting authorities and organizations-parties to the state contracts, involved in carrying out R&D in five federal districts of the Russian Federation (Table 2.1.1.1 and Chart 1).

Table 2.1.1.1

Federal District

City

Groups of Checked Organizations

Number of Checked Organizations

Share of the Total Number of Checked Organizations, %

Central District

Dzerzhinskiy, Zhukovskiy, Zelenograd, Kursk, Lytkarino, Moscow, Protvino, Sergiev Posad, Tula, Fryazino, Chernogolovka

FGUP — 11, ОАО — 7, Institution of VPO– 5, State Corporation– 1, Research and Production Complex– 1, NII — 1, Institution of RAN — 1, Institution of RAMN — 1, Federal Agencies — 2

30

79,0

Volga District

Kazan, Ulyanovsk

Institution of VPO — 2, FKP — 1

3

8,0

Northwest District

Saint-Petersburg

Institution of VPO — 1, Institution of RAN — 1, ОАО –1

3

8,0

Ural District

Yekaterinburg

Institution of VPO — 1

1

2,5

Siberian District

Novosibirsk

Institution of VPO — 1

1

2,5

 

The checked organizations included 11 Federal State Unitary Enterprises (FGUP), 10 Institutions of Higher Professional Training (VPO), 8 Associations (OAO), 2 Institutions of Russian Academy of Science (RAN), 2 Federal Agencies, 1 State Corporation, 1 Scientific-Research Institute (NII), 1 Institution of Russian Academy of Medical Science (RAMN), 1 Federal State Enterprise (FKP), 1 research and Production Complex (NPK) (Table 2.1.1.2 and Chart 2)

Table 2.1.1.2

Group of Organizations

Number of Checks

Share of the Total Number of Checks, %

FGUP

11

30

Institution of VPO

10

26

ОАО

8

21

Institution of RAN

2

5

Federal Agency

2

5

State Corporation

1

2,6

NII

1

2,6

Institution of RAMN

1

2,6

FKP

1

2,6

NPK

1

2,6

Total

38

100

Chart 2

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The activity of 3 contracting authorities, 20 organizations-parties to the state contracts to fulfill R&D of civil designation, 7 organizations-parties to the state contracts to fulfill R&D of civil, military, special and dual designation, 8 organizations-parties to the state contracts to fulfill R&D of military, special and dual designation was checked.

In the course of scheduled audit 465 state contracts (customers — the Ministry of Education and Science of the Russian Federation (227), the Ministry of Industry and Trade of the Russian Federation (187), the Ministry of Defense of the Russian Federation (20), the Federal Space Agency (15), the State Corporation «Rosatom» (12), the Ministry of Healthcare and Social Development of the Russian Federation (3), the Ministry of the Interior of the Russian Federation (1)) were checked (Chart 3).

Chart 3

Number of the Checked State Contracts According to the Contracting Authority

 

The financing of the checked state contracts amounts to almost 26 bln Rubles (at the expense of the federal budget — 19 bln 545 mln 354 thousand rubles, at the expense of non-budget funds — 6 bln 371 mln 820 thousand rubles).

Within fulfillment of 292 state contracts to fulfill R&D of civil, military, special and dual designation 105 patents for inventions, 65 patents for utility models, 45 certificates for computer programs, 13 certificates for topography of integrated circuits were granted, and 87 patent applications for inventions, 19 patent applications for utility models, 1 patent application for industrial design and 7 applications for state registration of computer programs were filed. With regard to 385 results the commercial secret regime was established.

Thus, the legal protection was granted to 727 results of intellectual activity (Table 2.1.1.3).

Table 2.1.1.3

State Contracting Authority

Number of state contracts granted the legal protection of created results

Ministry of Education and Science of the Russian Federation

According to 133 state contracts:

  • 66 patents on inventions;
  • 38 patents on utility models;
  • 37 certificates for computer programs;
  • 11 certificate on topography of integrated circuits;
  • 60 patent applications on inventions;
  • 13 patent application on utility model;
  • 1 patent application for industrial design;
  • 6 applications for registration of computer programs.

With regard to 4 results the commercial secret regime was established

Ministry of Industry and Trade of the Russian Federation

According to 133 state contracts:

  • 27 patents on inventions;
  • 10 patents on utility models;
  • 8 certificates for computer programs;
  • 23 patent applications on inventions;
  • 3 patent application on utility model;
  • 1 applications for registration of computer programs.

With regard to 380 results the commercial secret regime was established

Federal Space Agency

According to 14 state contracts:

  • 5 patents on inventions;
  • 10 patents on utility models;
  • 3 patent applications on inventions;
  • 1 patent application on utility model

State Nuclear Energy Corporation «Rosatom»

According to 9 state contracts:

  • 4 patents on inventions;
  • 7 patents on utility models;
  • 2 patent application on utility model
  • 1 patent application on inventions.

With regard to 1 result the commercial secret regime was established

Ministry of Defence of the Russian Federation

According to 3 state contracts:

  • 3 patents on inventions;
  • 2 certificates on topography of integrated circuits

The rights of 87 results of intellectual activity were recognized on accounting statements as intangible assets in total amount of 37 mln 572 thousand rubles, which form just around 0,2% of value of state contracts, financed at the expense of the federal budget.

License agreements were not concluded in the frame of checked state contracts.

Thus, the level of commercialization of the results of intellectual activity remains low.

As a result of checking the organizations-parties to the state contracts to fulfill R&D of civil, military, special and dual designation violations of the law requirements in the area of legal protection and utilization of R&D results and of provisions of concluded state contracts were revealed:

1. Violations in respect of ensuring legal protection for receiving results (in accordance with the performance specifications):

  • the absence of legal protection for results of intellectual activity created in the course of fulfillment of 20 state contracts was ascertained;
  • legal protection does not correspond the conditions of the performance specifications with regards to 7 state contracts;
  • legal protection was not provided to protectable results, created within the frame of 2 state contracts, that did not contain the requirement for creation of such results according to their performance specifications.

2. Violations in respect of fixation of rights in 46 results of intellectual activity were revealed in 29 state contracts.

3. Violations of submitting to contracting authority the information for state accounting of received results of intellectual activity were revealed in 134 state contracts.

4. Violations in respect of patent research were revealed in 26 state contracts.

5. Violations of provisions of state contracts in terms of allocation of rights on the results of intellectual activity in the state contract and contracts signed with co-executors were revealed in 24 organizations.

The violation of provisions of the state contract regarding inclusion in the contract on scientific and technical cooperation of the conditions regulating an order of use of the common received intellectual property is revealed in one organization.

6. The violations of provisions of state contracts in terms of notification of contracting authority about the creation of protectable results by executor were revealed in 19 state contracts.

7. Violations of provisions of state contracts in terms of utilizations of R&D results were revealed in 2 organizations.

Five commission contracts for the supply of military products were checked in reporting period. No violations were revealed.

As a result of audit 42 Acts of audit results were prepared (27 Acts of audit results were prepared in the sphere of legal protection and utilization of R&D results of civil designation, 15 Acts of audit were prepared in the sphere of legal protection and utilization of R&D results of military, special and dual designation), 40 directives for elimination of the identified violations were distributed.

No violations were revealed and no directives were distributed as a result of checking of 2 organizations — parties to state contracts to fulfill R&D of military, special and dual designation (FKP « State Scientific and Research Institute of Chemical Products», FGUP «Central Aerohydrodinamic Institute of N.E. Zhukovskogo»).

25 reports on eliminating the violations were submitted (implementation deadline for 15 directives — 1st quarter, 2013). The submitted reports demonstrated that 14 directives have been executed to the full extent; the implementation of the rest 11 directives is left under control.

Letters regarding the identified violations were sent to state contracting authorities (the Ministry of Education and Science of the Russian Federation, the Ministry of Industry and Trade of the Russian Federation, the Ministry of Defense of the Russian Federation) for their analysis and elimination (control) of violations.

It should be noted, that pursuant to directive on elimination of identified violations in respect of utilization of R&D results a license agreement on utilization of 5 topographies of integrated circuits was concluded.

Analysis of checked state contracts to fulfill R&D demonstrated that identified violations concerned organizations-parties to state contracts, as well as state contracting authorities.

The checking of the 3 state contracting authorities — Federal Medical and Biological Agency, State Corporation «Rosatom», Federal Space Agency revealed the following.

The provisions of state contracts in terms of allocation of rights on R&D results, legal protection, utilization and state accounting of such results generally correspond to legislation of Russian Federation.

All state contracts provide for carrying out of patent research in accordance with GOST R 15.011-96. At that, the timeframe of patent research is not determined by performance specifications or work schedule in a number of state contracts. Also, the requirements on content of patent research, including the requirements on examination of novelty of the objects, patent clearness, recognition of technical, artistic and constructive, software and other solutions, created during R&D process with the aim of finding the protectable results of intellectual activity and seeking a legal protection thereof in Russia and foreign countries are not specified.

As a result of checking of state contracting authorities the violations on the fulfillment of state contracts of civil, military, special and dual designation:

  • in terms of fixation of rights on R&D results;
  • in terms of state accounting of R&D results;
  • in terms of inclusion to the database of the state contracting authority and submission of the information to the Unified Register for state accounting of R&D results;
  • in terms of forwarding the decision by state contacting authority regarding the utilization and further legal acts related to protectable results to executor.

As a result of audit of state contracting authorities 4 Acts of audit results ( 2 Acts of audit results in the sphere of legal protection and utilization of R&D results of civil designation, 2 Acts of audit results in the sphere of legal protection and utilization of R&D results of military, special and dual designation) were prepared, 4 directives for elimination of identified violations were distributed.

Implementation deadline of the directives — 1st quarter, 2013.

Violations in respect of fixations of rights on received R&D results and their state accounting, as well as violations in respect of conducting the work by executor in accordance with the performance specifications, were the main violations revealed during the checking in 2012. At that, the norms of Articles 773, 1298 and 1373 of the Civil Code of the Russian Federation and the norms of paragraphs 4, 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.

The violation of legislation of the Russian Federation, namely, the Article 1345 and paragraph 7 of the Article 1373 of the Civil Code of the Russian Federation in respect of author’s right to remuneration for the use of an employee’s invention was revealed.

The violation in respect of representation of organization-party to state contract on behalf of the Russian Federation in contracts with co-executors, which is contrary to Article 125 of the Civil Code of the Russian Federation, was revealed during the audit. According to this Article, only state government bodies within their competence, established by acts, identifying the status of these bodies, may acquire and exercise material and personal non-property rights and responsibilities on behalf of the Russian Federation.

Violations of state contracts conditions (performance specifications) related to the state accounting of R&D results, noncompliance of the contracts signed with co-executors to the provisions of the state contracts related to allocation of rights, fixation of rights on R&D results and violations in respect of notification of contracting authority by executor about creation of protectable results and legal protection of such results.

Thus, as a result of checking in 2012 Rospatent analyzed 1,5 more state contracts than in 2011 (465 versus 302) as part of fulfillment of its functions of supervision and control. As a result of audit Rospatent distributed 1.5 more directives on elimination of identified violations than in 2011 (44 versus 30).

The increase of legal protection of R&D results at 1.9 in 2012 is a positive consequence of control and supervision activities conducted by Rospatent (727 versus 384 in 2011).

2.1.2. 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

In 2012 Rospatent continues the work on preparation of regulatory legal acts referred to improving the mechanism of implementing the supervision and control activities.

The Statutes «On 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» (adopted by the Government Decree of January 26 2012 № 9), «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» (adopted by the Government Decree of April 26, 2012 № 402) were developed by Rospatent and adopted by the Government of the Russian Federation.

The Administrative regulation concerning the fulfillment of the state function on supervision and control in the area of legal protection and utilization of the results of intellectual activity of civil designation, created at the expense of the federal budget, as well as control and supervision in the determined area with respect to contracting authorities and executors of state contracts, involved conduction of R&D (adopted by the Order of Rospatent of May 29, 2012 № 66, registered by the Ministry of Justice of the Russian Federation on June 27, 2012 № 24725) was developed by the Federal Service of Intellectual Property. Currently the draft of the Order of the Ministry of Economic Development concerning the adoption of Administrative Regulation on fulfillment of the state function on supervision and control in the area of legal protection and utilization of the results of intellectual activity of military, special and dual designation, created at the expense of the federal budget, as well as control and supervision in the determined area with respect to contracting authorities and executors of state contracts , involved conduction of R&D, is on approval at the Ministry of Economic Development.

Pursuant to Rules of management of Russian Federation rights on results of intellectual activity of civil, military, special and dual designation by state contracting authorities, approved by Government Decree of March 22, 2012 № 233, Rospatent developed an Order of December 10, 2012 № 157 «On approval of license fee administration for provision of rights for use the results of intellectual activity of military, special and dual designation, owned by the Russian Federation, the marginal rates and due dates of these payments, as well as grounds for exemption from payment of fees, their reduction or reimbursement».

2.2. Legal protection of state interest in the process of economic and civil circulation of R&D of military, special and dual designation

2.2.1. State accounting of R&D results, managing of the Unified Register of the results of intellectual activity of military, special and dual designation, involvement into inventory of rights on R&D results in organizations of defense industry complex and sectorial enterprises of Roskosmos and State Corporation «Rosatom»

In 2012 in accordance with the Government Decrees of March 21, 2012 № 218 «On the Federal Service for Intellectual Property» and February 26, 2002 № 131 «On state accounting of R&D results of military, special and dual designation» Rospatent continued to maintain the Unified Registry of R&D results of military, special and dual designation, owned by the Russian Federation.

Information regarding R&D results, registered in the Unified Registry, is shown in Table 2.2.1 according to the contracting authority; overall dynamics of registration the results for the period from 2004-2012 is shown in Chart 4.

Table 2.2.1

State Contracting Authority

2004

2005

2006

2007

2008

2009

2010

2011

2012

Total

SVR

0

0

0

28

13

107

113

101

80

442

FSKN

0

25

16

22

16

21

6

7

9

122

FSB

0

0

57

22

18

27

25

18

41

208

FTS

20

14

17

28

96

40

13

63

32

323

MCS

0

5

68

30

13

9

8

35

20

188

GUSP

0

30

61

18

12

2

6

7

12

148

FSO

0

68

45

61

81

55

74

41

30

455

MVD

0

0

0

182

128

130

98

65

83

686

Roskosmos

0

0

0

186

419

744

1014

826

764

3953

FSTEK

0

130

201

101

29

43

39

141

113

797

Ministry of Defense

10

15

959

1740

1892

2736

1510

425

413

9700

State Corporation «Rosatom»

0

0

0

0

0

0

0

8

61

69

Ministry of Industry and Trade

0

0

0

0

168

33

56

241

1

499

Total:

30

287

1424

2418

2885

3947

2962

1978

1659

17590

Chart 4

25834.png

In February 2012 the Rospatent` automatic information system «AIS of R&D results accounting» was registered at the Roskomnadzor` registry of federal state systems (electronic passport of February 2, 2012 № FS-77120195) as a federal state system of accounting of R&D results of military, special and dual designation, owned by the Russian Federation.

In compliance with the Presidential Decree of May 7, 2012 № 603 «On implementation of programs of construction and development of military force of the Russian Federation, other forces, military units and modernization of defense industry complex» further activities on enhancing the existent system of state accounting of results of intellectual activity will be concentrated on creation of unified information database of R&D results and technologies of military, special and dual designation, engineering documentation for the military products for their use in the process of creation of innovation products of dual and civil designation.

This will allow to implement an effective exchange between military and civil spheres in order to maximize the potential of defense industry complex for the economic development of the country.

The activities on inventory of rights of R&D results continued in organizations of defense industry complex in 2012. Representatives from Rospatent took part at work of 10 compulsory and 13 initiative inventory commissions.

2.2.2. Management of commercialization of rights on results of intellectual activity owned by the Russian Federation

Activities on state accounting and fixation of state rights on R&D results, performed by state contracting authorities, allowed FGBU «FAPRID» in 2012 to conclude 821 license agreements and 380 additional agreements to license agreements as a result of analyzing 2282 appeals from enterprises concerning the settlement of rights on results of intellectual activity of military, special and dual designation owned by the Russian Federation.

As a result of these activities and pursuant to Federal Law of November 10, 2011 № 371-FZ «On Federal Budget on 2012 and planning period of 2013-2014» 3 bln rubles were forwarded to federal budget, which is 15% more than determined budget targets.

According to Rules of management of Russian Federation rights on results of intellectual activity of civil, military, special and dual designation by state contracting authorities, approved by the Government Decree of March 22, 2012 № 233, the function of management of rights of intellectual activity belongs to federal executive authorities, represented as state contracting authorities. However, as of the end of 2012 the state contracting authorities did not start the implementation of practical realization of this function.

2.2.3. Legal protection of the results of intellectual activity, including international legal protection

As a part of implementation of function of legal protection of intellectual activity results subject to registration in the name of the Russian Federation, FGBU «FAPRID» received 21 patent protection on inventions (2 — in the territory of the Russian Federation, 19 — abroad, including 1 in Canada, 1 in India, 7 in EAPO, 3 in USA, 1 in EPO, 4 in China, 1 in Korea, 1 in Israel), as well as 6 decisions concerning the granting of patent on invention (1 in the USA, 1 in the EAPO, 1 in the EPO, 1 in South Korea, 1 in Germany).

In addition, FGBU «FAPRID» continued patenting 42 of high tech projects in the reporting period.

2.3. Intellectual activity results, owned by the Russian Federation

The total number of received applications, granted patents and certificates in the name of the Russian Federation in 2012 is shown in Table 2.3.

Table 2.3

Indices

Inventions

Utility models

Computer programs, databases, topography of integrated circuits

Industrial design

Total

Number of applications in 2012

334

199

445

9

987

Total number of valid patents on inventions, utility models, industrial designs, and certificates for computer programs, databases and topography of integrated circuits owned by the Russian Federation as of 31.12.2012

1652

615

1015

67

3349

Issued in 2012

587

188

443

51

1269

 



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