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Annual reports 2008 - Section 2

 



Section 2. Activity of Rospatent on Supervision in the Area of Legal Protection and Use of the Results of R&D, Received at Expense of Federal Budget

In compliance with the Administrative Regulation on the Execution of the State Function of Supervision in the Field of Legal Protection and Use of Results of Scientific and Research, Experimental and Design, and Technological Works of Civil Designation, Carried Out at the Expense of the Federal Budget (adopted by the Order of the Ministry of Education and Science of the Russian Federation No. 313 of December 13, 2006, registered in the Ministry of Justice of the Russian Federation on January 18, 2008 No. 8805) (hereinafter referred to as "the Administrative Regulation"), in 2008 Rospatent has carried out inspections of activities of organizations realizing the state contracts in the field of legal protection and use of R&D received at the expense of the federal budget.

In compliance with the adopted Plan of Activities of the Federal Service for Intellectual Property, Patents and Trademarks the 32 organizations realizing the State contracts on R&D at the expense of the federal budget were inspected and 2 out-of-cycle inspections were conducted in 2008. The activities were held in six Federal Districts of the Russian Federation (Central, North-West, Siberian, Ural, Volga and South) (see Table 2.1).

Table 2.1
Results of Inspections of Organizations  Realizing State Contracts on R&D in Federal Districts in 2008

Federal District

Number of Organizations Inspected

Number of Contracts Inspected

Central

22

165

Volga

3

45

Northwest

4

77

Siberian

2

41

Ural

2

29

South

1

8

Total

34

365

Inspections were held in 14 state educational institutions of higher professional education, 12 scientific and research institutes of the Russian Academy of Science, 6 federal state unitary enterprises and 2 federal state establishments.

365 state contracts executed on the order of the agencies Rosnauka, Rosatom, Rosenergo, Rosobrazovanie, Ministry of Defence of the Russian Federation, Ministry of Education of the Russian Federation and Science, Ministry of Industry and Energy of the Russian Federation, Ministry of Industry and Science of the Russian Federation, agency Roszdrav and scientific and research institutes of the Russian Academy of Science amounting to 4.7 billion rubles were inspected.

The abovementioned contracts for R&D of civil designation for federal state needs were carried out in compliance with federal target programs.

Federal target programs aimed at development of science and technologies suppose the elaboration of newest technologies of high scientific and technical level. World novelty and high scientific and technological level are proved with results of patent researches. Provisions on patent researches are contained in almost all state contracts. However, in most cases they are not at all carried out or carried out formally and not in compliance with the State Standard Р 15.011-96 «State Standard of the Russian Federation «System of Development and Entry Into Production. Patent Researches». The reports on patent researches lack conclusions on the patentability of technical solutions created within the framework of the state contracts and justification of the form and volume of legal protection thereof.

Legal use of results of intellectual activities created at the expense of the federal budget is possible after the securing of the rights in them according to the Resolution of the Government of the Russian Federation No. 685 of November 17, 2005, as in form of exclusive rights in the intellectual property objects, as in form of rights to results of intellectual activities protected in the regime of commercial secret.

Analysis of the inspections held by Rospatent showed that legal protection was obtained in respect of R&D results created within the framework of 118 state contracts. 60 patents of the Russian Federation for inventions and 16 patents of the Russian Federation for utility models were obtained, 108 patent applications for invention of the Russian Federation and 6 patent applications for industrial design of the Russian Federation were filed, 29 computer programs were registered, 38 results of intellectual activities were provided with legal protection in the regime of commercial secret. Overall, legal protection was provided to 257 results.

On the rest 103 inspected state contracts, the terms of which presupposed elaboration of patentable results, the executors in breach of Article 773 of the Civil Code of the Russian Federation did not fulfill the conditions of the technical specifications in the part of provision of legal protection to the R&D results obtained.

Rospatent has instructed the executors of the works on the abovementioned contracts to eliminate the violations and ensure legal protection of the results of intellectual activities obtained in the course of execution of state contracts.

As a result of elimination of the found violations the executors of state contracts in 2008 additionally filed 18 applications for patents, 27 R&D results were provided with protection in the regime of commercial secret, 8 computer programs were registered.

As a positive sign we can note that in 2008 the organizations-executors of state contracts began to use the regime of commercial secret to ensure legal protection of the results of intellectual activities obtained.

Table 2.2 contains data on the results of the inspections held in 2007-2008.

Table 2.2
Results of Inspections in 2007–2008

Indices

2007

2008

Number of Inspected State Contracts

310

365

Number of Contracts in the course of Execution of which R&D Results are Provided with Legal Protection

64

118

Number of Contracts in respect of which Applications were Filed, Patents or Certificates have been Received in the course of Execution of Instructions

32

44

Use of Rights in R&D Results

1

6

Though 2008 in comparison with 2007 shows positive dynamics in ensuring legal protection of R&D results obtained as a result of execution of state contracts, the use of the rights to them in the civil circulation still remains insignificant.

According to the results of the inspections held in 2008 six R&D results were entered into commercial circulation. 3 license contracts on the use of inventions and 3 contracts on the use of know-how were concluded.

One of the main reasons for such a low level of use of R&D results that have obtained legal protection is the lack of due control from the state entities placing the orders over the fulfillment of the conditions of the contracts concerning their use.

The analysis of the state contracts inspected in 2008 showed the following the most common violations of the executors of the state contracts:

Conduction of patent researches on the identification of the technical level of the created results and patent cleanness of the R&D results transferred to the customer;

Immediate notification of the customer on the creation of patentable R&D results and preparation of proposals on the use of protected R&D results;

Ensuring legal protection of the elaborated patentable results.

A significant number of violations of the terms of state contracts are connected with contracts between the executors and co-executors of the state contracts. There have been cases, when the executor in breach of the terms of the state contract transferred to the co-executor all the right in obtained results that may lead to violation of rights of the Russian Federation in the use of the obtained results for the federal needs.

Rospatent has notified the Federal Executive Authorities supervising the inspected organizations on the violations detected and the need of their elimination.

Two out-of-cycle inspections were held in 2008 in order to control the fulfillment of the instructions of Rospatent on the elimination of violations detected in the course of planned inspections.

As the result of the analysis of the fulfillment of the instructions of Rospatent on the elimination of detected drawbacks in respect of three organizations — executors of state contracts in 2008 a decision was made to send the materials to the Audit Chamber of the Russian Federation.

Rospatent has continued the collaboration with the Prosecutor General’s Office of the Russian Federation on conducting joint inspections of the activities of the Federal Executive Authorities in the field of legal protection and use of results of scientific and technical, experimental and design, and technological works of civil designation carried out at the expense of the federal budget.

In order to better inform the state entities placing orders and executors of state contracts on the current status in the field of legal protection and use of results of intellectual activities obtained at the expense of the federal budget and on outstanding issues in this field and ways for their solution Rospatent has held in June and November 2008 meetings with representatives of executors of state contracts and state entities placing orders on the practice of execution by Rospatent of the state function “Control in the field of legal protection and use of R&D results of civil designation carried out at the expense of the federal budget”. Issues concerning joint measures aimed at elimination by state entities placing orders and executors of state contracts of violations of legal acts and terms of the contracts were also discussed at the meeting.

Draft Recommendations on the legal protection and use of results of intellectual activities obtained in the course of execution of state contracts have been elaborated as a result of the meetings.

Every three months Rospatent summarizes the data on the securitization of rights of the Russian Federation to the results of intellectual activities created at the expense of the federal budget (Table 2.3).

Table 2.3
Filings of Applications and Grant of Patents and Certificates in the Name of the Russian Federation

Indicators

2007

2008

Number of Valid Patents for Inventions and Utility Models and Certificates for Computer Programs in the Name of the Russian Federation

325

424

Applications for Patents Filed

126

166

Patents Granted

96

130

Though there is an annual increase in the number of valid patents and certificates in the name of the Russian Federation, the number is still quite insignificant, and there has not been any registration of the entry in the civil turnover of the rights in the R&D results through license agreements and agreements on the alienation of exclusive rights.

Activities of Rospatent on the control in the field of legal protection and use of R&D results obtained at the expense of the federal budget is aimed at the realization of the state policy in the field of creation and use of results of scientific and technical activities in the civil circulation and ensuring the protection of the rights of the Russian Federation, Russian physical and legal entities in the created results of scientific and technical activities.



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