After the newly revised Law on the Promotion of the Transformation of Scientific and Technological Achievements came into force since October 1, 2015, the state and localities have issued many supporting documents and formulated action plans for the transfer of scientific and technological achievements, and many universities and research institutions have taken action, but there are many problems and obstacles in the concrete operation. In communication with various parties, the author found that the following problems exist, which are typical, and the analysis of these problems will help the further advancement of the transfer of scientific and technological achievements.
After the newly revised Law of the People's Republic of China on the Promotion of the Transformation of Scientific and Technological Achievements (hereinafter referred to as the "Law on the Promotion of the Transformation of Scientific and Technological Achievements") came into force on October 1, 2015, the State Council issued on February 26, 2016 the "Certain Provisions on the Implementation of the Law of the People's Republic of China on the Promotion of the Transformation of Scientific and Technological Achievements" (Guofa (2016) No. 16, hereinafter referred to as the "Implementation Provisions"), the General Office of the State Council The Action Plan for Promoting the Transfer of Scientific and Technological Achievements (No. 28 [2016]) was issued on April 21, 2016, and the successive issuance of these three documents is known as the Three Steps for the Transformation of Scientific and Technological Achievements. After this, the Ministry of Education's Ministry of Science and Technology's Opinions on Strengthening the Transfer and Transformation of Scientific and Technological Achievements in Higher Education (No. 3, Teaching and Technology [2016]), the Ministry of Science and Technology of the Chinese Academy of Sciences on the Issuance of the (No. 97, Science and Technology [2016]), and the National Health Planning Commission and five other departments issued the Notice on Strengthening Health and Documents such as the Guiding Opinions on the Transfer and Transformation of Health Science and Technology Achievements (No. 51, State Health Science and Education [2016]) are all guiding opinions put forward by relevant state authorities to implement the Three Steps and strengthen the transfer and transformation of science and technology achievements in the areas under their jurisdiction. The Opinions of the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council on the Implementation of Distribution Policies Oriented to Adding Value to Knowledge, the Circular of the Ministry of Finance and the State Administration of Taxation on Extending the National Independent Innovation Demonstration Zone Related Tax Pilot Policies to Nationwide Implementation (Cai Shui [2015] no. 116), the Ministry of Finance Notice of the State Administration of Taxation on Improving Income Tax Policies Related to Equity Incentives and Technology Share Ownership (Cai Shui [2016] No. 101), Interim Measures on Equity and Dividend Incentives for State-owned Scientific and Technological Enterprises (Cai Shui [2016] No. 4), and Guidance Opinions of the Ministry of Human Resources and Social Security on Supporting and Encouraging Innovation and Entrepreneurship of Professional and Technical Personnel in Institutions are all documents related to the transfer of scientific and technological achievements Closely related supporting policies. Of course, the country's scientific and technological achievements of transformation of the document is far more than these, the local issue of the document is more, some are in a comprehensive document involving the transfer of scientific and technological achievements, some are specifically to promote the transfer of scientific and technological achievements to make provisions.
Among the many policy documents, it is not an easy task to know and understand and apply them. Due to the misunderstanding, inaccurate grasp or wrong application of the relevant policies, the transformation of scientific and technological achievements work has taken a detour. For this reason, I suggest that universities and research institutions responsible for the transformation of scientific and technological achievements of the working department first sort out and permeate the spirit of the national policy on the transformation of scientific and technological achievements and the implementation of the views of the competent departments, the local government, to develop their own system of transformation of scientific and technological achievements, sort out and continuously optimize the transformation process, as well as scientific and technological personnel part-time, leaving the business management methods; secondly, to the unit of scientific and technological personnel to explain the national and local policy on the transformation of scientific and technological achievements. The transformation of scientific and technological achievements policy, the unit's management system and process. These are the basis for doing the conversion of scientific and technological achievements of the unit. In order to help universities and scientific research institutions to eat through the spirit of the policy, I have combed through numerous policy documents, according to the transformation of scientific and technological achievements chain and related subjects, in the form of questions and answers, supplemented by links, to write the "Transformation of Scientific and Technological Achievements Operation Practice", as a tutorial material for understanding and applying the relevant policies. It is recommended to read and understand the original policies when applying the relevant policy documents in concrete terms.
In the application of the Law on the Promotion of the Transformation of Scientific and Technological Achievements, there will be problems of convergence with laws and regulations such as the State-owned Assets Law, the Company Law, and the Measures for the Administration of the Evaluation of State-owned Assets, and if they are not handled properly, there will be many obstacles to convergence. Let's first take the example of investment in scientific and technological achievements as an illustration. Article 18 of the Law on the Promotion of the Transformation of Scientific and Technological Achievements stipulates that state-established research and development institutions and institutions of higher education may independently decide to transfer, license or invest in the scientific and technological achievements they hold, but the price shall be determined through agreement pricing, listing in the technology market, auction and other means. This provision reflects two important breakthroughs: first, the right to dispose of scientific and technological achievements is delegated to the holding unit, that is, it does not require the approval of government departments, including not having to report in any form to the competent departments, financial departments, state-owned asset management departments for approval or record; second, the principle of market-oriented pricing of scientific and technological achievements is established, which means that no evaluation can be conducted, and even if the scientific and technological achievements are evaluated, the evaluation value cannot be taken as the value of the achievements. The basis of pricing can only be used as a reference for pricing. However, the Law on Promoting the Transformation of Scientific and Technological Achievements does not explicitly provide that no evaluation is required, so according to Article 38 of the Interim Measures for the Management of State-owned Assets of Public Institutions (Decree No. 36 of the Ministry of Finance, hereinafter referred to as Decree No. 36 of the Ministry of Finance), investments priced at scientific and technological achievements should be evaluated. According to Article 40 of the Measures, it should be entrusted to an appraisal agency with asset appraisal qualification, but it is not necessary to implement the approval and filing system stipulated in Article 41 of the Measures. Therefore, for the transfer, licensing or investment of scientific and technological achievements, the legal process of evaluation is broken.
When registering a company, article 27, paragraph 2, of the Company Law stipulates that non-monetary property used as capital contributions shall be appraised for value and verified, and shall not be overvalued or undervalued. Where the laws or administrative regulations provide for the valuation of property, the provisions of those laws or administrative regulations shall apply. According to this provision, in order to invest with the price of scientific and technological achievements, the investor can go to the industrial and commercial department for company registration procedures with the agreement of pricing, or the transaction certificate of the technology exchange market listing, or the auctioneer's signed confirmation of the transaction, due to the decentralization of the disposal power, and there is no need to provide the approval documents of the competent department or the financial department. Shanghai has already adopted this procedure, i.e., if the investment is made on the basis of scientific and technological achievements, it is not necessary to issue an intangible asset evaluation report on the scientific and technological achievements, nor is it necessary to issue approval documents from the competent departments.
The example of equity awards is further illustrated. Article 45 of the Law on the Promotion of the Transformation of Scientific and Technological Achievements stipulates that if the investment is made in the form of scientific and technological achievements, the research and development institutions established by the State and the institutions of higher education shall take not less than 50 per cent of the shares or the proportion of the capital invested in the scientific and technological achievements to reward and remunerate those who have made important contributions to the completion and transformation of the scientific and technological achievements of their positions. How is this provision to be implemented? The more prudent and legal approach is to take two steps: first, according to the provisions of the Company Law, the unit that completes the achievements of science and technology of the job will use the scientific and technological achievements as an investment to acquire shares or the proportion of capital investment; second, the shares or the proportion of capital investment from the unit that completes the achievements of science and technology of the job will be not less than 50% to the person who has made important contributions to the completion and transformation of the achievements of science and technology of the job, and change. (c) Registration. In both the first and second steps, due to the decentralization of the disposal, there is no need to provide the approval documents from the competent authorities and financial departments, and only the resolution documents of the unit are needed to register and change the registration. Shanghai Polytechnic University has followed such a procedure to register its Shanghai SSE Terahertz Technology Co. and to implement its shareholding to the scientific staff. But this is too much of a toss-up, why can't it be two steps at a time? But two steps and one step would have to overcome the provisions of the Company Law. Shanghai has already gone through the process of combining two steps and one step.
The main motivation for SWJTU's reform of mixed ownership of the results of scientific and technological work is to better implement the right to reward and remunerate scientific and technological personnel in order to stimulate their motivation. The mechanism is to use the Promotion of Scientific and Technological Achievement Transformation Law to give universities the right to dispose of scientific and technological achievements, to honor the right to reward and remunerate scientific and technological personnel, and then to front and simplify the awarding of intellectual property rights to realize the mixed ownership of job scientific and technological achievements. The main approach is summarized in three points. The first is to give inventors the right to patent and patent application, that is, for existing patents and patent applications, the university realizes the rewards to the job inventor by changing the patentee and patent applicant; for new patent applications, the university realizes the rewards to the job inventor through joint application. Secondly, the university and the job inventor enter into a reward agreement on the ownership of the patent right and the right to apply for the patent, which stipulates or agrees to share the patent right in the ratio of 30%:70%. Third, if the job inventor works in a team, the internal allocation ratio is negotiated within the team. This reform at the university has reportedly yielded positive results.
The Law on the Promotion of the Transformation of Scientific and Technological Achievements stipulates that functional scientific and technological achievements refer to scientific and technological achievements that are the result of carrying out the work tasks of research and development institutions, institutions of higher learning and enterprises, or that are mainly accomplished by using the material and technical conditions of the above-mentioned institutions. This provision can be understood as having two criteria for judging functional scientific and technological achievements: the first is the "duty criterion", which means that they are the result of carrying out the work tasks of the unit, i.e., they fully reflect the will of the unit; the second is the "resource criterion", which means that they are mainly the result of using the material and technical conditions of the unit. (b) What is accomplished. Whereas the responsibility criterion is rigid, the resource criterion is more flexible, i.e., what is not "primarily" done using the material and technical conditions of the unit can be defined as non-functional scientific and technical results. Why is the resource criterion more flexible? This is because: firstly, it reflects the will of individual scientists and technicians, not the will of the unit; secondly, its completion has nothing to do with the performance of the scientific and technological achievements; thirdly, although the objective fact is that it mainly uses the material and technical conditions of the unit, it lacks an objective criterion.
Although the Law on the Promotion of the Transformation of Scientific and Technological Achievements does not stipulate that the results of scientific and technological achievements on the job belong to the unit, the Patent Law, the Regulations on New Plant Varieties, the Regulations on the Layout Design of Integrated Circuits and the Regulations on the Protection of Computer Software all stipulate that the right to apply for corresponding intellectual property rights for inventions and creations on the job, breeding on the job, layout design on the job and software developed on the job belong to the unit. There is no legal basis for this. This is the main reason why the industry has different views on the reform of the mixed ownership of the results of functional science and technology of Southwest Jiaotong University. Step back, the law will delegate the disposal of scientific and technological achievements to its holders, the holders can use the delegated disposal rights and give up the right to dispose of or part of the right to dispose of? Obviously, it's a no-no.
The rights of scientific and technological achievements include material rights and moral rights, material rights can be obtained by giving rewards and remuneration, and moral rights have been fully granted by law to scientific and technological personnel. In the decentralized reform of the disposal of scientific and technological results, as the ownership of the right to dispose of and use the two rights are still enjoyed by the unit, these two rights are the real embodiment of the sovereignty of scientific and technological results, should be exercised by the owner. In my opinion, the mixed ownership of scientific and technological achievements of the position lacks a legal basis. Jurisprudence, scientific and technological personnel to obtain some of the ownership of scientific and technological achievements mainly in the following three ways: one is the agreement, the premise of equality between the subjects of cooperation and development; two is the transfer, must pay consideration, that is, to pay the relevant fees; three is the donation, that is, the unit given to the scientific and technological personnel. The reform of mixed ownership of the results of job S&T does not meet any of the above three criteria.
In practice, there are also three potential risks associated with mixed ownership of job-related scientific and technical results.
Firstly, research and development institutions and institutions of higher learning must obtain the consent of all the persons who have completed the work on scientific and technological achievements in their work before they can transfer, license or invest in such achievements.If the unit and the individual job scientific and technological achievements of the completion of the employment relationship was terminated, once the job scientific and technological achievements of the completion of the job does not agree to transfer, or the unit does not know the whereabouts of the completion of the job, the job scientific and technological achievements will be difficult to transfer.
➤ Secondly, if the share of the rights of the job T&E completers to the job T&E results exceeds 50%, it means that the dominance of the conversion of the job T&E results is transferred from the unit to the job T&E completers.If the position result finisher is a group composed of more than one scientific and technical personnel, after the dissolution of the subject group, to coordinate this group is not a simple thing, and the more the number of coordination is more difficult, which may make the transfer of the position scientific and technical results become very complicated, but not conducive to the transfer of scientific and technical results.
Thirdly, the application for patents, software copyrights and other intellectual property rights on the results of job science and technology need to pay the relevant fees, and the person who completes the job science and technology results should bear a share of the fees for the application of intellectual property rights, patent maintenance fees, etc., which increases the economic burden of the scientists and technicians.It would clearly be unreasonable for the techies not to bear these costs.
In my opinion, the mixed results of job science and technology is not legal, unreasonable, inconvenient operation, also unnecessary, is more than one move, it is proposed to simplify the processing, that is, the results of job science and technology should be attributed to the unit, or according to the relevant provisions are not recognized as job science and technology results, belong to individuals.
Research and development agencies and institutions of higher learning have established a system for the management of horizontal scientific research activities. Generally speaking, horizontal scientific research is carried out in the mode of order or demand-oriented scientific research, that is, enterprises put forward their demands, research and development institutions and institutions of higher learning organize their forces to carry out research and development, and if the research results meet the requirements put forward by enterprises, they will be transferred to enterprises.
For example, a certain research institute stipulates that the income obtained by using the resources and advantages such as scientific research, talents, experimental platforms, test sites, etc. of the institute to provide technology development, technical consultation, technical services, planning and design, analysis and testing, efficacy testing, etc. for enterprises, society and individuals will be defined as the income from the transformation of scientific and technological achievements. This is actually the technology development, technical consultation and technical services are regarded as the transformation of scientific and technological achievements. Its purpose is, "four technology service income" is the horizontal income of the Institute, although the Institute can independently dispose and allocate, but must be included in the total wage base, subject to the limitations of the total wage, while the transformation of scientific and technological achievements to the scientific and technological personnel of the reward and remuneration part of the proceeds, although also included in the total wage, but not subject to the limitations of the total wage, not included in the total wage. Total wage base.
From the definition of transformation of scientific and technological achievements in the Law on the Promotion of the Transformation of Scientific and Technological Achievements, technology development, technical consultation and technical services should not be considered transformation of scientific and technological achievements, because they are all technical activities carried out at the request of the client, using its own technical knowledge, capabilities and conditions. However, if it is for the transformation of scientific and technological achievements and technology development, technical advice and technical services, that is, "subsequent test, development, application, promotion" and other activities, belongs to the transformation of scientific and technological achievements. Article 6 (4) of the Implementing Provisions stipulates that the rewards given to scientific and technical personnel for carrying out activities such as technology development, technical consultation and technical services in the transformation of scientific and technological achievements may be implemented in accordance with the Law on the Promotion of the Transformation of Scientific and Technological Achievements and these provisions. The premise of this provision is the conversion of scientific and technological achievements. If the aforementioned research institute is based on the transformation of scientific and technological achievements and provides enterprises and other organizations with technology development, technical consultation, technical services and other income obtained, it can be defined as income from the transformation of scientific and technological achievements. Without the premise of transformation of scientific and technological achievements, it would belong to the general "four-technology services", which are generally included in the scope of horizontal income by institutions of higher education and research and development institutions.
The Opinions of the Ministry of Science and Technology of the Ministry of Education on Strengthening the Transfer and Transformation of Scientific and Technological Achievements in Higher Education (Education and Technology [2016] No. 3) stipulates that horizontal cooperation activities, such as technology development, technical consultation, technical service and technical training, carried out by university scientific and technological personnel for enterprises are important forms of transformation of scientific and technological achievements in higher education, and their management shall be based on the contract law and the law on the transformation of scientific and technological achievements. The Notice of the Ministry of Science and Technology of the Chinese Academy of Sciences on the Issuance of the (No. 97 [2016]) also stipulates that it is an important form of the transformation of scientific and technological achievements for scientific and technological personnel to provide technology development, technical consultation, technical services, and technical training for enterprises. This provision makes it clear that technology development, technical consultation, technical services, and technical training fall under the category of transformation of scientific and technological achievements. Article 4(2) of the Opinions of the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council on the Implementation of the Distribution Policy Oriented on Increasing the Value of Knowledge stipulates that the extraction of awards and gratuities for activities such as technology development, technical consultation and technical services (in scientific research institutions and colleges and universities) shall be in accordance with the Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements and the Several Provisions on the Implementation of the Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements Implementation. This effectively stipulates that the withdrawal of awards and gratuities for activities such as technology development, technical consultation and technical services in scientific research institutions and universities is not restricted by the gross wage and is not included in the gross wage base.
In my opinion, the scientific and technical personnel of research and development institutions and institutions of higher education provide technology development, technical consultation, technical services, technical training and other services for enterprises based on their scientific and technical achievements, or the scientific and technical knowledge accumulated by engaging in scientific and technical research and development activities, which belongs to the application and promotion of scientific and technical achievements, and their inclusion in the transformation of scientific and technical achievements will help research institutions and institutions of higher education to provide services for society.
However, there are concerns that the technology used in services such as technical consulting, technical services, technical training, etc., which is low in technical content and is prone to adaptations to treat other economic activities such as testing, authentication, commissioning, etc., as technical contracts, or the inclusion of for-profit production and business activities in the transformation of scientific and technological achievements, will lead to a generalization of the transformation of scientific and technological achievements, thus affecting those who are truly engaged in the transformation of scientific and technological achievements. The enthusiasm of the people who transformed. There are also concerns that the policy of including technology development, technical advice, technical services, technical training, etc. in the transformation of scientific and technological achievements and enjoy their rewards and remuneration "is not limited by the total salary of the unit in the current year, not included in the total salary base of the unit", it is easy to exploit the loopholes in the policy.
This concern has some merit, but I believe that it can be avoided. In the past, a registration system for technical contracts was introduced, and all technical contracts that were registered could be awarded a certain percentage of the approved technical income. Now can be managed by the unit itself, to prepare their own materials to prove that the "four skills" service income, that is, to bear the burden of proof, and can withstand the competent departments, human resources and social security departments, audit, discipline inspection and other departments of supervision and inspection. Once the relevant departments have discovered any fraudulent acts, they will point them out in a timely manner and order improvements to be made, and in serious cases, they will take disciplinary action against the party and the government. If this is the case, all units will certainly be strictly screened and handled with care.
To the best of my knowledge, this is done entirely by the unit in accordance with the Law on the Promotion of the Transformation of Scientific and Technological Achievements and the Implementing Regulations, and does not need to be reported to the competent department or the Human Resources and Social Security Department for approval or recognition.
In practice, it is recommended that the following be done.
First, a management system for the transfer of scientific and technological achievements has been established, with clear provisions on the scope of scientific and technological achievement transfer activities, the division of responsibilities, the process of transformation, the extraction ratio and calculation method of awards and remunerations, the procedures for the payment of awards and remunerations, and the management of the distribution of awards and remunerations.Since the vital interests of the employees are involved, it is proposed that the system be adopted by the general meeting of employees or the staff council.
➤ Second, every scientific and technological achievements transformation project, including technology development, technical advice and technical services, should be carried out in accordance with the unit's scientific and technological achievements transformation management system, with complete process information available throughout the process.In the case of transfer of scientific and technological achievements, licensing or investment for a price, or technology development, technical consultation or technical services, a technology contract shall be signed and reported to the local science and technology administrative department or its designated agency for registration of the technology contract and approval of technical income.
Thirdly, the award and remuneration shall be calculated in accordance with the ratio of withdrawal and the formula for calculating the award and remuneration set by the unit.
➤ Fourth, the main completers of scientific and technological achievements, or the person in charge of the subject group, should propose a specific distribution plan, i.e., a list of persons who have made important contributions to the completion and transformation of the scientific and technological achievements of their positions and the amount of awards and gratuities they are entitled to, which should be reported to the personnel department of the unit for the record, and if the unit's leadership is involved, it should also be publicized in the unit.
➤ V is disclosed in the annual report on the transformation of scientific and technological achievements.In accordance with Article (5) of the Implementation Regulation, state-established research and development institutions and institutions of higher education shall, in accordance with the prescribed format, submit to their competent authorities by 30 March each year an annual report on the transformation of their scientific and technological achievements in the preceding year, disclosing the performance, rewards and punishments for the transformation of scientific and technological achievements, including the income obtained from the transformation of scientific and technological achievements and their distribution, as well as the rewards and remunerations for personnel involved in the transformation of scientific and technological achievements.
In short, there are regulations and they are strictly enforced, the financial accounting is clear, the allocation is made to those who have made important contributions to the completion and transformation of the scientific and technical results of their positions, and they are reported honestly, creating a closed-loop system. Do these five points, there should be no problem.
The university's practice is that if the reward for the conversion of scientific and technological achievements is withdrawn in cash, the reward will be withdrawn in proportion to the amount of the proceeds of the conversion of scientific and technological achievements to the account, and personal income tax will be paid in accordance with the law. This is in line with the provisions of the Law on the Promotion of the Transformation of Scientific and Technological Achievements. If the scientific research reimbursement is to be made in the manner of scientific research funding, the university finance office will build up an account and send it to the project leader for use, and the management method of using the funding will refer to the management method of horizontal scientific research funding after the conclusion of the project. In my opinion, this practice is completely legal and compliant. There are two reasons as follows.
➤ First, empowering scientific and technical staff with choice.The withdrawal of cash by researchers is in accordance with the Law on the Promotion of Scientific and Technological Achievements, while the non-withdrawal is operated in accordance with the current horizontal research project management methods of universities. One of the main reasons for this is that the personal income tax payable is too high and researchers have a low sense of access. For example, a university reflected that in 2016, there are more than ten scientific and technological transformation projects with conversion proceeds, scientific and technical personnel can extract incentives and remuneration, but only one project of scientific and technical personnel to the school's financial department for cash withdrawal procedures, after repeated urging and no one responded.
➤ Second, the use of the proceeds from the conversion of scientific and technological achievements for scientific research is consistent with the Act on the Promotion of the Conversion of Scientific and Technological Achievements.However, the author suggests that the scientific and technical accomplishments are a group of people, and that the principal accomplishments of the scientific and technical accomplishments or the project leader should obtain the consent of other scientific and technical personnel.
It is understood that this practice with a certain degree of universality. This is somewhat similar to the "overlord" clause, some enterprises to climb the high branch of the university, had to accept. This practice is reasonable? I think it is reasonable, because the value of scientific and technological achievements is gradually discovered and gradually released. Is this practice legal? It should be legal, because it was pre-agreed upon. But it doesn't look very comfortable. Is there a better solution? Of course there is.
The value of scientific and technological achievements is influenced by a variety of factors, including the conditions for transformation, the ability to transform, the transformation environment, the maturity of the scientific and technological achievements, whether the technology related to the transformation of scientific and technological achievements supporting, and the market maturity, which together determine the value of scientific and technological achievements. When these factors change, the value of the scientific and technological achievements will also change. At the same time, the attitude towards the expected results of the transformation of scientific and technological achievements, whether the relevant parties have the ability to discriminate the value of scientific and technological achievements, the evaluation model (method) used, etc., will affect the evaluation of the value of scientific and technological achievements. Optimists and conservatives, insiders and outsiders, assess the value of the same scientific and technological achievements, and the difference in the assessment results will be relatively large. The same S&T achievement will also be evaluated more differently using the expected return method and the cost method and market transaction method respectively. This indicates that the assessed value of scientific and technological achievements may differ greatly from their real value. In order to avoid the serious deviation between the transaction price and the value, which may lead to unhappy cooperation, it is suggested that the appraisal value of scientific and technological achievements should not be determined as a value, but as an interval. If you take a conservative attitude, the appraisal value is relatively low, and if you take an optimistic attitude, the appraisal value is relatively high, and the interval formed by these two is the appraisal value of scientific and technological achievements, which may be relatively large.
In the practice of technical contracts, the transfer of scientific and technological achievements, the license to implement the transformation, in order to avoid the value of scientific and technological achievements is not easy to judge the disputes arising from the value, generally take the entry fee plus commission fee payment. To the price of scientific and technological achievements to invest in the implementation of transformation, the first scientific and technological achievements to assess the conservative value or in the interval to choose a lower value as scientific and technological achievements to fund the amount, in the interval within the highest value, scientific and technological achievements of the investor's proportion of investment does not change with the capital increase of the enterprise invested in the stock expansion, beyond the maximum value, it should be diluted accordingly.
Since the pricing mechanism for scientific and technological results is not mature enough, the Law on the Promotion of the Transformation of Scientific and Technological Results allows for negotiated pricing, so how is it negotiated? If there is both assessment and consultation, how should the relationship between the two be handled? In my opinion, if the appraised value of the S&T value is a range value and the negotiated price is within that range, then the appraisal is a reference for negotiated pricing. Otherwise, if the appraised value is a specific value and the difference between it and the negotiated price is large, there is a greater risk of decision making, making it difficult for the executive to make a decision. Even if a decision is made, the decision is more risky. If the appraised value is closer to the coordinated price, then it is in fact still appraisal pricing, and there is no point in negotiating.
University A stipulates that when licensing and transferring patents to domestic and foreign units or individuals, one must download the "Application Form for Patent Right Transfer" and fill in the patent name, the unit to be licensed or transferred, negotiate the price, and require all inventors to sign to approve the price. The person in charge of the inventor's college will sign and stamp the application form, and then send it to the university technology transfer center for examination and signature. ...The requirement here that all inventors sign to approve the price of the patent assignment or license is a higher requirement, and if all inventors are at the university, this is easier to work with and there are no obstacles. However, if some inventors, such as the master's or doctoral students who are inventors have graduated and left the school, or even are not in China, it is not easy to do this, and such a requirement may affect the smooth transfer of scientific and technological achievements.
In my opinion, this practice is unnecessary, the completion of the job scientific and technological achievements of the job whether the transformation of scientific and technological achievements do not have the right to decide or veto power, only the right to disagree with the agreement on the pricing of scientific and technological achievements, and enjoy the right to receive rewards, granting scientific and technological personnel this power is completely unnecessary, is the abuse of the right to dispose of scientific and technological achievements.
From time to time, I still hear concerns about the loss of state assets due to the conversion of scientific and technological achievements. For example, when is the equity formed by investing in the fruits of science and technology registered as property? Since when is it necessary to preserve the value of a property? What constitutes "due diligence"? And so on. This is a series of issues for which there is still a fear of being held responsible for the "loss of State assets".
The idea of the revision of the Law on the Promotion of the Transformation of Scientific and Technological Achievements is to eliminate any institutional mechanism that restricts the transformation of scientific and technological achievements, including the lifting of the spell imposed on the transformation of scientific and technological achievements by the preservation and appreciation of the value of state-owned intangible assets, which is mainly reflected in the following aspects.
➤ First, state facilitation.That is, according to Article 43 of the Law on the Promotion of the Transformation of Scientific and Technological Achievements, the right of gain is delegated to the unit of the completion of scientific and technological achievements, which is disposed of by the unit itself, and the state does not obtain income from the transformation of scientific and technological achievements.
Second, unit concessions.That is, according to Article 45 of the Law on the Promotion of the Transformation of Scientific and Technological Achievements, more than 50% of the proceeds from the transformation of scientific and technological achievements is given by the unit to reward and compensate those who make important contributions to the completion and transformation of scientific and technological achievements, and there is no upper limit, in other words, 100% is allowed to scientific and technological personnel, and the unit may not profit from the proceeds from the transformation of scientific and technological achievements.
➤ Third, the upfront investment is not recovered.That is, in accordance with Article (VI) of the Implementation Regulation, the investment in research and development in the previous period is not included in the cost when calculating the net income.
Fourth, the diligent are exempt from liability.That is, according to the provisions of the implementation of the provisions of (j), unit leaders in the performance of the duty of due diligence, not to make illegal profits, on the premise of exempting them from the pricing of scientific and technological achievements due to changes in the subsequent value of the transformation of scientific and technological achievements of decision-making responsibility. What is due diligence? It is fulfilling the provisions of the Law on Promoting the Transformation of Scientific and Technological Achievements and the Implementing Regulations to improve the system for the transformation of scientific and technological achievements, optimize the process of transformation of scientific and technological achievements, and strictly implement the relevant systems and processes. To do so is to be diligent and responsible. "Subsequent change in value" refers to the two situations of failed transformation and great success of transformation. Neither failure to achieve the expected results nor a transaction price much lower than its actual value is responsible for the decision.
University B stipulates that the subject group should first negotiate the allocation ratio of rewards and remuneration for the proposed transformation of scientific and technological achievements, and only after all inventors or completers of the achievements have signed off on it, can they enter the transformation process of the university. In some scientific and technological achievements, there are as many as ten inventors or inventors of patents, and they are mainly master's and doctoral students, so it is difficult for the team leader to coordinate to determine the distribution ratio. The university's research and development department has been working on the project for more than 10 years. The head of the university's asset company is deeply perplexed by this.
The Law on the Promotion of the Transformation of Scientific and Technological Achievements does not provide for the distribution of awards and remuneration, and Article (VI) of the Implementing Regulations stipulates that the share of awards for persons who have made major contributions in research and development and the transformation of scientific and technological achievements shall not be less than 50% of the total amount of awards, which reflects that awards and remuneration shall be distributed according to the share of contributions. But how to determine the share of contribution? This is difficult. There is a phenomenon in psychology known as the self-serving bias, where people have a tendency to attribute positive outcomes to internal causes and negative outcomes to external causes, or a tendency to overemphasize their contribution to success and minimize their responsibility for failure, which leads to an inability to objectively evaluate our own gains and losses. This is also prominent in the case of S&T R&D, where the sum of the perceived contribution shares of each individual in the subject group is greater than 100%.
That being said, if a group is made up of multiple people, or if a scientific or technical result is produced by a number of people, it is difficult for the unit to determine the contribution of each member of the group to the completion of the scientific or technical result, and this should be left to the group leader to determine.
Because of this, the distribution of honoraria for scientific and technological achievements should be carried out on two levels: the first level is the unit according to the "Promotion of Scientific and Technological Achievement Transformation Law" Article 44 and Article 45 of the regulations, what proportion of the proceeds from the transformation of scientific and technological achievements to the completion, transformation of scientific and technological achievements to make important contributions to the personnel to give awards and remuneration; the second level is the completion, transformation of scientific and technological achievements to make important contributions to the personnel The allocation between them should be made by the head of the group or the main contributor to determine the percentage and the specific amount of money to be allocated to each person, and the specific list of allocations and the amount they receive should be reported to the unit for the record.
From this perspective, the aforementioned University B rule requiring the subject group to first settle the distribution issue is redundant, and intervening in the internal distribution of the subject group is overstepping management, which should be returned to the subject group. This also solves another problem, which is whether or not subject group members who have left or departed the unit can be given the right to incentives and remuneration. The unit may make provisions for granting or denying incentives and remuneration to departing team members. If given, it can recognize the contribution made by the scientific and technical personnel who have already achieved scientific and technical results, as well as motivate and spur the scientific and technical personnel who are and will be engaged in scientific research to engage in research activities and achieve high-quality scientific and technical results. From this point of view, although the scientific and technical personnel have left or left the post, but the unit still recognizes its contribution, still give rewards and remuneration, is a strong positive incentive for scientific and technological innovation activities. For example, a drug institute regulations, regardless of scientific and technical personnel leave or retire, can enjoy the transformation of scientific and technological achievements of rewards and remuneration, even if the completion of the death of the person, its due rewards and remuneration can also be inherited. Specific approach is: after the completion of scientific and technological achievements, the scientific and technological personnel leave or retire, the scientific and technological achievements have been transformed, the rewards and remuneration due to the same, and can be inherited; in the process of research and development of scientific and technological achievements, scientific and technological personnel leave or retire, to undertake its R & D task by the scientific and technological personnel and their consultation to determine the R & D part of the distribution ratio of the rewards and remuneration due, and often to undertake the task of scientific and technological personnel. Lean. It makes sense not to give it, as the incentives and remuneration for the conversion of scientific and technological achievements are wages and salaries, which are included in the gross salary, and their separation or departure is considered as an active or passive waiver of the right to remuneration.
In my opinion, enterprises should implement the Promotion of Scientific and Technological Achievement Transformation Law from the following five angles.
➤ First, we should accurately grasp the meaning of scientific and technological achievements and job-related scientific and technological achievements, distinguish between scientific and technological achievements and intellectual property rights, define the ownership of job-related scientific and technological achievements, and make good use of relevant policies to transform the non-job-related scientific and technological achievements of individual workers, so as to stimulate the enthusiasm of individual workers to engage in innovation in their spare time.
➤ Secondly, the relationship between the transformation of scientific and technological achievements of enterprises and their research and development activities and "four-technology" services is accurately grasped, so that enterprises can fully enjoy preferential tax policies such as deductions for research and development expenses and technology contracts in the process of implementing the transformation of scientific and technological achievements.
➤ Thirdly, the important way for enterprises to transform their scientific and technological achievements is the combination of industry, university and research, in which the right of ownership of scientific and technological achievements should be properly grasped and the relationship with research and development institutions, higher education institutions and their scientific and technological personnel should be handled.The clear ownership of scientific and technological achievements is the premise of the transformation of scientific and technological achievements, which must be agreed upon before cooperation. Stimulate the enthusiasm of scientific and technological personnel is the fundamental guarantee of the transformation of scientific and technological achievements, must make scientific and technological personnel rewards and remuneration and other benefits are fully guaranteed, at the same time, scientific and technological personnel should be through part-time or leave the post and other ways for enterprises to provide technology development, technical advice, technical services, etc..
Fourthly, enterprises should, through regulations or agreements with scientific and technical personnel, give a certain percentage of rewards and remuneration to scientific and technical personnel engaged in the transformation of scientific and technical achievements.Otherwise, there is some legal risk.
➤ Fifth, fully enjoying fiscal and tax support policies, including the accreditation of high-tech enterprises and their preferential tax policies, the transformation of scientific and technological achievements, and technology transfer.
(Source: Sans-Pak)
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