Regulations for the creation of small innovative enterprises. Legal basis for the creation of small innovative enterprises by universities To open a small innovative enterprise

U T V E R J D A Y

Rector of the Financial University under the Government of the Russian Federation


___________________ M. A. Eskindarov
"_____" _____________________ 2011
Regulations

creation of small innovative enterprises

with the participation of the Financial University under the Government of the Russian Federation within the framework of the implementation of Federal Law No. 217-FZ of August 2, 2009.
Content

1.General provisions 3

2.Basic concepts and definitions 5

3. COMMERCIALIZATION read Financial University 7

4. General principles for creating business companies 10

5. The procedure for creating business companies 13

6.VALUE ASSESSMENT AND PLACEMENT OF RID ON BALANCE 16

7. Applications 21

7.1. Flow diagram of the process of creating a business company with the participation of the Financial University 21

7.2.Template of Application Letter for the establishment of a business company 22

Approval sheet 23


  1. General provisions


    1. The Regulations for the creation of small innovative enterprises (hereinafter referred to as the “Regulations”) with the participation of the Financial University under the Government of the Russian Federation (hereinafter referred to as the “Financial University”) were developed to regulate activities related to the creation of business entities, further management and disposal of shares (shares) in the authorized capital of the created business companies within the framework of the implementation of Federal Law No. 217-FZ of August 2, 2009 (hereinafter referred to as “217-FZ”).

    2. This Regulation establishes a general procedure, a unified sequence of actions and a procedure for preparing documentation necessary for the creation and management of business companies whose activities involve the practical application (implementation) of the results of intellectual activity, the exclusive rights to which belong to the Financial University.

    3. The general management of activities for the commercialization of the results of intellectual activity within the framework of 217-FZ at the Financial University is carried out by the Vice-Rector for Scientific and Innovative Development.

    4. Operational supervision of the processes of commercialization of the results of intellectual activity within the framework of 217-FZ at the Financial University is carried out by the Deputy Vice-Rector for Scientific and Innovative Development. Current work is carried out by the Department of Innovative Development.

    5. The adoption of key decisions on the commercialization of the results of intellectual activity within the framework of 217-FZ at the Financial University is carried out collegiately at meetings of the Expert Commission for assessing the results of intellectual activity for their registration and further commercialization through the creation of small innovative enterprises of the Financial University (hereinafter referred to as the “Expert Commission” ).

    6. These Regulations are binding on all structural divisions and officials of the Financial University when commercializing or putting into practice the results of intellectual activity, both obtained in the structural divisions of the Financial University and received from supporting enterprises (organizations) or citizens.

    7. Amendments to these Regulations are carried out by order of the Rector of the Financial University based on the proposal of the Vice-Rector for Scientific and Innovative Development.

  1. Basic concepts and definitions


    1. Innovation activity – a process aimed at translating the results of scientific research and development or other scientific and technical achievements into a new or improved product sold on the market, into a new or improved technological process used in practical activities.

    2. Results of intellectual activity (hereinafter referred to as “RID”) - the results of intellectual activity, the exclusive rights to which belong to the Financial University, while maintaining the authorship of individuals, and the rights to use which can be transferred as a contribution to the authorized capital of created business companies in accordance with 217-FZ, and namely: patents, computer programs; databases; inventions; utility models; industrial designs; breeding achievements; topologies of integrated circuits; production secrets (know-how).

    3. Commercialization – the process of practical application (implementation) of the results of intellectual activity, transfer of rights to use them and related material media to business societies created with the participation of the Financial University within the framework of 217-FZ for the production of products based on them, performance of work and provision of services in order to meet demand in the market and making a profit.

    4. Small innovative enterprise (hereinafter referred to as “MIP”) is a business company created with the participation of the Financial University within the framework of 217-FZ.

    5. Production secret (know-how) – a set of scientific, technical, commercial and other knowledge, formalized in the form of technical documentation, skills, production and management experience necessary for organizing production, but not patented.

  1. COMMERCIALIZATION read by Financial University


    1. The main goals of commercialization of RIA at the Financial University are:

  • production of products, performance of work and provision of services in order to meet market demand and make a profit;

  • ensuring practical application (implementation), popularization of research developments of the Financial University, maximizing their beneficial effect for society and the economy;

  • obtaining an economic effect from the use of the results of intellectual activity, increasing the economic independence of the Financial University;

  • strengthening the reputation of the Financial University as a scientific and research center, increasing the efficiency of management of scientific production of the Financial University;

  • scientific, analytical, consulting, expert support for strategic and applied decisions of the state, corporate and financial sectors;

  • creation of a system for multiplying knowledge from various fields of economic science in practice in the real economy and public administration system;

  • creation of additional jobs for scientific and pedagogical workers.

    1. Objects of commercialization are understood as the results of research, educational, teaching, methodological and other activities of the Financial University, which are RIA in accordance with clause 2.2. of these Regulations or can be converted into RIA.

    2. To commercialize RIA, the Financial University carries out the following actions:

  • Search and selection of objects for commercialization.

  • Ensuring legal protection of RIA – registration of the Financial University’s exclusive rights to RIA and/or state registration of RIA (except for production secrets (know-how)) at the expense of the Financial University.

  • Registration of RIA for budget accounting.

  • Conducting an assessment of the right to use RIA, which will be a contribution to the authorized capital of the created SIE.

  • Creation of business companies in accordance with 217-FZ.

    1. The priority RIAs for commercialization by the Financial University are:

  • computer programs;

  • databases;

  • production secrets (know-how).

    1. When commercializing RIA within the framework of 217-FZ, the exclusive rights to them must belong to the Financial University. If the exclusive rights to RIA do not belong to the Financial University, authorized divisions (employees) of the Financial University must first take the necessary actions to obtain the Financial University exclusive rights to RIA by concluding an agreement on the alienation of exclusive rights with the right holders in the manner established by law and internal documents of the Financial University university.

    2. With regard to production secrets (know-how), a trade secret regime must be introduced in the manner established by Federal Law No. 98-FZ of July 29, 2004 “On Trade Secrets” and “Regulations on the Procedure for Introducing a Trade Secret Regime for the Legal Protection of the Results of Intellectual Activity in form of production secrets (know-how) at the Financial University under the Government of the Russian Federation."

    3. The results of research, educational, teaching and methodological and other activities of the Financial University, which are not RIA in accordance with clause 2.2. of these Regulations, but having the potential for commercialization, can be finalized and converted into RIA for the purposes of commercialization within the framework of 217-FZ by creating on their basis: computer programs; databases; production secrets (know-how). The transformation of objects of commercialization into RIA is carried out by interested parties.

    4. The use of the results of research, educational, teaching and methodological and other activities of the Financial University for transformation into RIA is possible if the Financial University has exclusive rights to these results or the rights to use them. At the same time, the transformation of the results of research, educational, teaching, methodological and other activities of the Financial University into RIA must be carried out in such a way that the exclusive rights to the RIA obtained after the transformation belong to the Financial University.

  1. General principles for creating business companies


    1. In accordance with the Charter and the current legislation of the Russian Federation, the Financial University has the right, without the consent of the owner of its property, to be a founder (co-founder) of business companies whose activities consist of the practical application (implementation) of the results of intellectual activity, the exclusive rights to which belong to the educational institution.

    2. The organizational and legal forms used to create business companies are a limited liability company or a joint stock company.

    3. A business company is established by the Financial University, including jointly with other legal entities or individuals (hereinafter referred to as “co-founders”), and the educational institution’s share in the authorized capital must be:

  • for a joint stock company - at least twenty-five percent;

  • for a limited liability company - no less than one third.

    1. The Financial University, as a contribution to the authorized capital of the created business companies, makes the right to use one or more RIA, the exclusive rights to which are retained by the Financial University. At the same time, the right to use the results of intellectual activity made as a contribution to the authorized capital of a business company cannot be granted by the business company to third parties under an agreement, or transferred to third parties on other grounds.

    2. The share (shares) of other persons in the authorized capital of a business company must be paid for in cash at least half.

    3. The results of intellectual activity, the rights to use of which are included in the authorized capital of the created business companies, must meet one of the following requirements:

  • The state registration of the result of intellectual activity has been carried out and a title document is available (patent for an invention, patent for a utility model, patent for an industrial design, certificate of registration of a computer program or database) certifying the exclusive right of the Financial University to this RIA. In this case, the title documents must be valid at the time of registration of the small enterprise. It is advisable to use only those patents that expire no earlier than 10 years from the date of state registration of the business company.

  • The RIA was placed on budgetary accounting (on the balance sheet of the Financial University) in accordance with the current Instructions on budgetary accounting, approved by order of the Ministry of Finance of Russia. At the same time, before placing RIA on the balance sheet, the Expert Commission must determine the cost of the corresponding RIA.

    1. The decision to create a business company is made by the Rector of the Financial University based on the decision of the Expert Commission.

    2. The decision of the Expert Commission precedes a comprehensive analysis of the intellectual property for the prospects for commercialization based on the study of the business plan presented by the Initiator of the creation of the SIE, specialists from the Department of Innovative Development. The result of this analysis is a Conclusion on the prospects for commercialization of RIA with recommendations.

    3. The procedure for the creation and state registration of small enterprises is determined by the provisions of Federal Law No. 217-FZ of September 2, 2009, the Federal Law “On Limited Liability Companies” of February 8, 1998 No. 14-FZ and the requirements of the Moscow Federal Tax Service No. 46.

  1. The procedure for creating business companies


    1. The initiators of the creation of a business company can be employees and individual structural divisions of the Financial University, third-party enterprises and organizations, individuals, federal bodies and local governments interested in the practical application of RIA.

    2. A flow diagram of the process of creating a business company with the participation of the Financial University is presented in Appendix 1 to these Regulations.

    3. The initiator is preparing documents for submitting an Application for consideration of the issue of creating a business company (hereinafter referred to as the “Application”). In this case, the Initiator has the right to seek advice on the preparation of documents from the Department of Innovative Development.

    4. The application is submitted by the Initiator to the Vice-Rector for Scientific and Innovative Development of the Financial University and includes the following documents:

  • Letter of Application for the establishment of a business company (in accordance with the template presented in Appendix 2 to these Regulations);

  • Description of the RIA planned for implementation through the creation of SIP;

  • Business plan for the creation and development of small enterprises.

    1. An application with a visa from the Vice-Rector for Scientific and Innovative Development is sent for examination to the Department of Innovative Development of the Financial University.

    2. The Department of Innovative Development, based on the order of the Vice-Rector for Innovative Development, reviews the Application and prepares a conclusion on the possibility and feasibility of commercializing RIA through the creation of SIE with the participation of the Financial University. If necessary, the Innovative Development Department may send the materials submitted by the Initiator for revision.

    3. Applications approved by the Department of Innovative Development are submitted for consideration to the next meeting of the Expert Commission, in accordance with the approved Rules of Procedure of the Expert Commission. The decision of the Expert Commission is approved by the Rector of the Financial University.

    4. In case of a positive decision of the Expert Commission, the Department of Innovative Development, together with the Initiator, draws up an author's order agreement on behalf of the Financial University with the alienation of exclusive rights to RIA, Terms of Reference and the Acceptance and Transfer Certificate of completed work. After signing the specified documents, an Act on placing RIA on the balance sheet of the Financial University is drawn up in form No. OS-1.

    5. After placing the RIA on the balance sheet of the Financial University, the Initiator generates the necessary package of documents for state registration of the created SIE:

  • SIE Charter;

  • Protocol No. 1;

  • Applications for registration (form P11) – notarized;

  • Certificate of assessment of intellectual property by the founders;

  • Letter of guarantee signed by the rector of the Financial University on the provision of a legal address;

  • The state registration fee is paid;

  • Extract from the minutes of the meeting of the Expert Commission;

  • Application for transition to a simplified taxation system (STS) (optional);

  • A copy of the SIE Charter.

    1. The prepared package of documents is submitted by the Initiator for registration at MIFTS No. 46 in Moscow.

    2. After completing the procedure for state registration of a business company, the Initiator organizes the following actions:

  • Drawing up an employment contract with the Director.

  • Issuance by the Director of the Order on the assumption of the position of the Director and on the chief accountant.

  • Making a seal.

  • Concluding a lease agreement for premises at the Financial University.

  • Opening a current account.

  • Registration and receipt of a checkbook.

  • Obtaining OKPO codes.

    1. At the final stage, the Director of the newly created SIE draws up and signs a license agreement and an Acceptance and Transfer Certificate of the non-exclusive right to use RIA with the Financial University.

    2. Upon the creation of an SIP, the Department of Innovative Development of the Financial University forms and sends to the Ministry of Education and Science of the Russian Federation an Application for inclusion of the SIP in the database of the Ministry of Education and Science.

  1. ASSESSMENT OF VALUE AND PLACEMENT OF REEDS ON THE BALANCE SHEET


    1. After making a preliminary decision on the establishment of SIE, it is necessary to estimate the costs of creating or acquiring RIA for the purpose of their subsequent registration (on the balance sheet) and establishing the lower limit of the monetary value of the rights to use RIA transferred as a contribution to the authorized capital of the created business companies.

    2. Registration of RIAs for accounting as intangible assets (hereinafter referred to as “Intangible Assets”) is carried out in accordance with the Instructions for Budget Accounting, approved by the Order of the Ministry of Finance of Russia. According to this instruction, intangible assets that simultaneously satisfy the following conditions can be placed on budget accounting:

  • lack of material-material (physical) structure;

  • the possibility of identification (separation, separation) from other property;

  • use in the production of products, when performing work or providing services, or for the management needs of an institution;

  • long-term use, i.e. useful life exceeding 12 months or normal operating cycle if it exceeds 12 months;

  • the subsequent resale of this asset is not expected;

  • availability of properly executed documents confirming the existence of the asset;

  • availability of properly executed documents establishing the exclusive right to the asset;

  • the presence, in cases established by law, of properly executed documents confirming the exclusive right to an asset (patents, certificates, other documents of protection, etc.) or the right to the results of scientific and technical activities protected as a trade secret, including potentially patentable technical solutions and production secrets (know-how).

    1. The list of RIA, the right to use which can be included in the authorized capital of business companies under a license agreement, is closed and includes only patents for inventions, utility models, industrial designs, selection achievements, programs for electronic computers, databases, topologies of integrated circuits and production secrets (know-how).

    2. Registration of the exclusive rights of the Financial University to RIA selected for practical use (contribution to the authorized capital of created business companies) is carried out in accordance with the requirements contained in part four of the Civil Code of the Russian Federation, Federal Law No. 217-FZ of August 2, 2009 and with taking into account the following regulatory legal acts:

  • For computer programs and databases:

    • Order of the Ministry of Education and Science of the Russian Federation dated December 12, 2007 No. 346 “On approval of the Administrative Regulations for the execution by the Federal Service for Intellectual Property, Patents and Trademarks of the state function of maintaining registers of registered intellectual property objects, publication of information about registered intellectual property objects, applications filed and issued on them patents and certificates, on the validity, termination and renewal of legal protection in relation to intellectual property, transfer of rights to protected objects, on the official registration of intellectual property.”

    • Order of the Ministry of Education and Science of the Russian Federation dated October 29, 2008 No. 324 “On approval of the Administrative Regulations for the execution by the Federal Service for Intellectual Property, Patents and Trademarks of the state function of organizing the acceptance of applications for state registration of a program for electronic computers and applications for state registration of a database, their consideration and issuing, in the prescribed manner, certificates of state registration of a computer program or database.”

  • For trade secrets (know-how):

    • A trade secret regime must be introduced in accordance with the requirements established by Art. Art. 10 and 11 of the Federal Law of July 29, 2004 No. 98-FZ “On Trade Secrets”.

    • The accounting and protection at the Financial University of information constituting a trade secret must be regulated by the Regulations on Trade Secrets, developed and adopted by the institution taking into account the provisions of the Federal Law of July 29, 2004 No. 98-FZ “On Trade Secrets.”

    1. Intangible assets are accepted for budget accounting at their original cost. The initial cost of intangible assets is recognized as the contract price agreed upon by the Initiator and the Financial University, that is, the amount of actual investments in the acquisition and creation of intangible assets. Investments for the acquisition and creation of intangible assets can be:

  • amounts paid in accordance with the contract to the seller;

  • amounts paid to organizations for carrying out work under contracts;

  • amounts paid in accordance with the agreement of assignment (acquisition) of rights to the copyright holder (seller);

  • amounts paid to organizations for information and consulting services related to the acquisition of intangible assets;

  • registration fees, state duties and other similar payments made in connection with the acquisition (receipt) of rights to intangible assets;

  • creation costs (materials consumed by the institution, wages and accruals for wages, services of third-party organizations, etc.);

  • other costs directly related to the acquisition and creation of intangible assets.

    1. The monetary valuation of the right to use RIA, which will be the Financial University’s contribution to the authorized capital of a business company, is carried out by the Financial University independently or with the involvement of an independent appraiser (in the case of a monetary valuation of the right to use RIA over 500,000 (five hundred thousand) rubles).

    2. When independently assessing the value of intellectual property and the right to use intellectual property, the income approach is used, in which the value of intangible assets or interest in intangible assets is determined by calculating the present value of projected future benefits to the current moment. When using the income approach, the method of expert assessments (forecasting method) is used, based on reaching agreement by a group of experts from the Department of Innovative Development of the Financial University or independent appraisers. An expert assessment of the right to use RIA is agreed upon with all the founders of the created business company, whose unanimous decision forms its authorized capital.

    3. Taking into account the fact that the Financial University transfers a non-exclusive right to use RIA (non-exclusive license), then in accordance with the Civil Code of the Russian Federation, this right can be valued below the book value of RIA.

    4. The RIA is placed on the balance sheet of the Financial University at a price approved by the Expert Commission, which is documented by the corresponding accounting entries.

    5. The Expert Commission makes a decision on the assessment of the right to use intellectual property for inclusion in the authorized capital of the created business company. In this case, the useful life of the RIA is set at 10 years, and the straight-line method is used for depreciation.

    6. Based on the concluded license agreement with the business company being created, the accounting department makes the required entries to add the non-exclusive right to use RIA to its authorized capital.

  1. Applications

    1. Flowchart of the process of creating a business company with the participation of the Financial University

    1. Template of Application Letter for the establishment of a business company

REPORT

"___"___________ 201_ No.___________

On the creation of a small innovative enterprise

OOO "_________________"
Dear Sergey Nikolaevich!

We ask you to consider the project for commercialization of the results of intellectual activity (hereinafter referred to as RIA) by creating a small innovative enterprise LLC “_______________”.

This enterprise will be created in accordance with Federal Law No. 217-FZ of August 2, 2009 with participants represented by the Financial University (share ____%) and ________________________ (share ____%).

LLC “____________” is expected to be used to implement the following promising commercial projects in the interests of the Financial University: _________________________________________________________.

It is proposed to contribute ___________________________________________________________ to the authorized capital of the created small innovative enterprise (size - _________ rubles) as the University's RIA.

Based on the above, I ask you to consider the issue of practical implementation of the project to create a small innovative enterprise LLC “_______________”.


Sincerely,

Initiator


Annexes: 1. Description of the RIA planned for implementation through the creation of SIP

2. Business plan for the creation and development of small enterprises

Approval sheet

AGREED:

Head of Department

innovative development N. V. Kuznetsov

Deputy Vice-Rector for

scientific and innovative development N. M. Abdikeev

Boss

legal department V. A. Miroshnikova

Vice-Rector for Scientific Affairs

and innovative development S. N. Silvestrov

Modern economic and legal literature does not consider the definition of a small innovative enterprise at a university, because this area is still under development. Terms such as “small innovative enterprise”, “entrepreneurial activity of the university”, “innovative project”, “small business” are widely used. For the purposes of practical application, it seems important to define the concept of “small innovative enterprise at a university.” It reflects the essence of the creation and activities of various types of small enterprises at universities as innovative projects.

N.V. Atarshchikova Atarshchikova N.V. Commercialization of scientific and technical developments through small innovative enterprises at universities // Management of economic systems: electronic scientific journal. 2011. No. 5. indicates that the concept of “small innovative enterprise at a university” is the next stage in the development of all these terms and proposes to define the hierarchy of terminology. Thus, the concept of “small innovative enterprise at a university” includes the following components: small enterprise, innovative project and entrepreneurial activity of the university.

Based on the above, a “small innovative enterprise at a university” is an enterprise that is established on the basis of a higher educational institution for the purpose of generating income and belongs to the category of small business according to the criteria defined by federal legislation.

The rules governing legal relations for the creation of small innovative enterprises at universities (hereinafter - SIE) for the use of results of intellectual activity (hereinafter - RIA) by universities can be divided into the following types according to their content:

1. general norms of civil legislation establishing

General provisions on exclusive rights;

Legal status of business entities;

The procedure for including rights to use intellectual property in the authorized capital of business companies;

Legal status of budgetary institutions;

Conducting an assessment of intellectual rights.

2. special norms establishing the specifics of the legal regulation of the use of intellectual property by universities in the process of creating business entities by budget-funded scientific and educational institutions for the purpose of practical application (implementation) of the results of intellectual activity.

Special rules are contained in normative legal acts of varying legal force.

The creation of business entities by budgetary scientific and educational institutions for the purpose of practical application (implementation) of RIA is provided for by N 217-FZ. In accordance with this law, budget-funded scientific and educational institutions can create new societies, but cannot join existing ones.

Let us note that before this federal law, universities and research institutes could not implement the results of their intellectual activity. It is also important that, according to the law, income from the activities of small and medium-sized innovative enterprises can only be used for legal protection of the results of intellectual activity, payment of remuneration to their authors and for the implementation of the main activities of institutions - education and science.

SIEs at universities can be created in the form of business companies. Business companies are recognized as commercial organizations with authorized (share) capital divided into shares (contributions) of founders (participants) (Clause 1, Article 66 of the Civil Code of the Russian Federation).

In accordance with paragraph 3 of Art. 66 of the Civil Code of the Russian Federation, business companies can be created in the form of a joint-stock company, a limited or additional liability company.

The legal status of joint-stock companies is determined by Federal Law No. 208-FZ of December 26, 1995 “On Joint-Stock Companies” “Collection of Legislation of the Russian Federation” 01/01/1996, No. 1, Art. 1.. The procedure for the creation and operation of a limited liability company is established by Federal Law dated 02/08/1998 N 14-FZ “On Limited Liability Companies” “Collection of Legislation of the Russian Federation” 02/16/1998, N 7, Art. 785..

The general procedure for forming the authorized capital of newly created business companies is established by the Civil Code of the Russian Federation. Authorized capital is the totality in monetary terms of contributions (shares, shares at par value) of the founders (participants) to the property of the organization upon its creation to ensure activities in the amounts determined by the constituent documents. Contributions to the authorized capital of a company can be money, securities, or other things. The contribution of a company participant can also be property rights, in particular the right to use property (for example, a building) and other rights that have a monetary value. An intellectual property object cannot be a contribution to the authorized capital. The right to use such an object may be recognized as a contribution.

Monetary valuation of things and property rights contributed to the authorized capital is carried out by the participants of the company by mutual agreement. The assessment of non-monetary contributions is approved by a unanimous decision of the general meeting.

The general assessment procedure is established by Federal Law No. 135-FZ of July 29, 1998 “On appraisal activities in the Russian Federation.” Federal Law of July 29, 1998 N 135-FZ “On appraisal activities in the Russian Federation” // SZ RF. 2008. N 48. Art. 5499.

Rights to the results of intellectual activity (hereinafter referred to as RIA) are regulated primarily by the norms of Part Four of the Civil Code of the Russian Federation, which contains Section 7. “Rights to the results of intellectual activity and means of individualization.” Exceptions to this general rule are directly indicated in Part Four of the Civil Code of the Russian Federation.

In accordance with Article 1225 of the Civil Code of the Russian Federation and equivalent means of individualization of legal entities, goods, works, services and enterprises that are granted legal protection (intellectual property) are:

1) works of science, literature and art;

2) programs for electronic computers (computer programs);

3) databases;

4) execution;

5) phonograms;

6) broadcast or cable communication of radio or television programs (broadcasting by broadcasting or cable broadcasting organizations);

7) inventions;

8) utility models;

9) industrial designs;

10) selection achievements;

11) topology of integrated circuits;

12) production secrets (know-how);

13) brand names;

14) trademarks and service marks;

15) names of places of origin of goods;

16) commercial designations.

RIA recognizes intellectual rights, which include an exclusive right, which is a property right, and in a number of cases provided for by the Civil Code of the Russian Federation, personal non-property rights and other rights (right of succession, right of access, etc.). Intellectual rights do not depend on the ownership of the material medium (thing) in which the corresponding intellectual property is expressed.

The exclusive right to RIA created by creative work initially accrues to its author. The author of the RIA is the citizen whose creative work created such a result (Article 1228 of the Civil Code of the Russian Federation). This right can be transferred by the author to another person under an agreement, and can also be transferred to other persons on other grounds established by law. Citizens who have not made a personal creative contribution to the creation of such a result, including those who provided its author only with technical, consulting, organizational or material assistance or assistance, or who only contributed to the registration of rights to such a result or its use, as well as citizens who control over the implementation of relevant work.

The author of the RIA owns the right of authorship, and in some cases the right to a name and other personal non-property rights. The right of authorship, the right to a name and other personal non-property rights of the author are inalienable and non-transferable. Waiver of these rights is void.

A citizen or legal entity that has an exclusive right to RIA (right holder) has the right to use such a result or such a means at its own discretion in any way that does not contradict the law, and can also dispose of the exclusive right to RIA. The copyright holder may, at his own discretion, permit or prohibit other persons from using the RIA. In this case, the absence of a prohibition is not considered consent (permission).

Other persons may not use RIA without the consent of the copyright holder, except in cases provided for by the Civil Code of the Russian Federation. Using RIA without the consent of the copyright holder is illegal and entails legal liability. The use of RIA by other persons without his consent is permitted in a number of cases and with the right to remuneration retained by the copyright holder.

Article 1229 of the Civil Code “Exclusive Right” contains the main provisions on the rights of the copyright holder. The copyright holder may, at his own discretion, permit or prohibit other persons from using the RIA. In this case, the absence of a prohibition is not considered consent (permission).

Income from the joint use of intellectual property is distributed equally among all copyright holders, unless otherwise provided by agreement between them.

The validity period of exclusive rights is determined in Article 1230 of the Civil Code of the Russian Federation.

The exclusive right to RIA may be transferred by the author to another person under a license agreement, and may also be transferred to other persons on other grounds established by law.

Under a license agreement, one party - the holder of the exclusive right to the result of intellectual activity or to a means of individualization (licensor) grants or undertakes to provide the other party (licensee) with the right to use such result or such means within the limits provided for by the agreement (Article 1235 of the Civil Code of the Russian Federation). The licensee may use RIA only within the limits of the rights that are expressly provided for in the license agreement. RIA not expressly specified in the license agreement is not considered provided to the licensee.

Requirements for the content of the license agreement and the procedure for its execution are determined in accordance with Art. Art. 1235 - 1237 Civil Code of the Russian Federation.

The period for which the license agreement is concluded cannot exceed the validity period of the exclusive right to the RIA. If the license agreement does not define its validity period, the agreement is considered to be concluded for five years. In case of termination of the exclusive right, the license agreement is terminated.

As a rule, a license agreement is concluded in writing. If RIA is subject to state registration in accordance with the Civil Code of the Russian Federation, then the granting of the right to use such a result is also subject to state registration.

The federal executive body for intellectual property, which carries out state registration of agreements on the disposal of the exclusive right to intellectual property, is the Federal Service for Intellectual Property, Patents and Trademarks.

The procedure for state registration of agreements on the disposal of exclusive rights is established by Decree of the Government of the Russian Federation of December 24, 2008 N 1020. "Collection of Legislation of the Russian Federation", 01/12/2009, N 2, Art. 225.

The Civil Code of the Russian Federation provides for two types of licensing agreements:

1. Simple (non-exclusive) license (granting the licensee the right to use RIA while reserving the licensor’s right to issue licenses to other persons).

2. Exclusive license (granting the licensee the right to use RIA without reserving the licensor’s right to issue licenses to other persons).

Unless otherwise provided in the license agreement, the license is assumed to be simple (non-exclusive).

The Civil Code contains rules on the execution of a license agreement. So in accordance with Art. 1237 of the Civil Code of the Russian Federation, the licensee is obliged to submit reports to the licensor on the use of RIA, unless otherwise provided by the license agreement. If the agreement does not contain provisions on the deadline and procedure for submitting reports, the licensee is obliged to submit such reports upon request of the licensor.

During the validity period of the license agreement, the licensor is obliged to refrain from any actions that could impede the licensee’s exercise of the granted rights to use the RIA.

If the use of RIA exceeds the scope of the rights granted, this entails liability for violation of the exclusive right to RIA.

General provisions on obligations (Articles 307-419 of the Civil Code of the Russian Federation) and on contracts (Articles 420-453 of the Civil Code of the Russian Federation) apply to agreements on the disposal of the exclusive right to intellectual property, including licensing agreements, unless otherwise established by the rules of Section 7 Civil Code of the Russian Federation.

To ensure the exercise of the right to create business entities, Law 217-FZ initially introduced changes to the following legislative acts of the Russian Federation:

1. Federal Law of July 24, 2007 N 209-FZ “On the development of small and medium-sized businesses.”

2. Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”.

3. Federal Law of August 23, 1996 N 127-FZ “On Science and State Scientific and Technical Policy”.

4. Federal Law of August 22, 1996 N 125-FZ “On Higher and Postgraduate Professional Education”. "Collection of Legislation of the Russian Federation" 1996, No. 35, Art. 4135.

5. In the Federal Law of January 12, 1996 N 7-FZ “On Non-Profit Organizations” and in the Federal Law “On Autonomous Institutions”.

6. In the Civil Code of the Russian Federation.

The adoption of Law No. 217-FZ required amendments to the Civil Code of the Russian Federation in terms of regulating the legal status of state (municipal) institutions. Federal Law dated 05/08/2010 N 83-FZ “On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Improvement of the Legal Status of State (Municipal) Institutions” introduced amendments to the Civil Code of the Russian Federation, which are aimed at eliminating obstacles to the use by budgetary institutions of RIA "Sobranie" legislation of the Russian Federation", 05/10/2010, N 19, art. 2291..

Clause 1 of Article 296 of the Civil Code of the Russian Federation is stated in the new wording: “1. An institution and a state-owned enterprise, to which property is assigned under the right of operational management, own and use this property within the limits established by law, in accordance with the goals of its activities, the purpose of this property and, unless otherwise established by law, dispose of this property with the consent of the owner of this property. property."

Article 298 of the Civil Code of the Russian Federation is also set out in a new edition, which provides that a budgetary institution, without the consent of the owner, does not have the right to dispose of particularly valuable movable property assigned to it by the owner or acquired by the budgetary institution at the expense of funds allocated to it by the owner for the acquisition of such property, as well as real estate . The budgetary institution has the right to dispose of the remaining property that it has under the right of operational management independently, unless otherwise provided by law. A budgetary institution has the right to carry out income-generating activities only insofar as it serves to achieve the goals for which it was created and corresponds to these goals, provided that such activities are specified in its constituent documents. Income received from such activities and property acquired from these incomes are at the independent disposal of the budgetary institution.

In order to implement Law N 217-FZ, the Ministry of Education and Science of the Russian Federation developed recommendations containing special norms that established the mechanism for the creation of business entities by budget-funded scientific and educational institutions for the purpose of practical application (implementation) of RIA:

1. Letter of the Ministry of Education and Science of the Russian Federation N VM-788/04 dated August 7, 2009 “On the implementation of the federal law of August 2, 2009 No. 217-FZ “On amendments to certain legislative acts of the Russian Federation on the creation of budgetary scientific and educational institutions of business entities for the purpose of practical application (implementation) of the results of intellectual activity.”

2. Letter of the Ministry of Education and Science of the Russian Federation No. VM-790/04 dated August 7, 2009 “On the implementation of the federal law of August 2, 2009 No. 217-FZ “On amendments to certain legislative acts of the Russian Federation on the creation of budgetary scientific and educational institutions of business entities for the purpose of practical application (implementation) of the results of intellectual activity.”

3. Letter of the Ministry of Education and Science of the Russian Federation No. 20-1834 dated December 3, 2009. “On the application (implementation) of the results of intellectual activity by budget-funded scientific and educational institutions of higher professional education” (together with “Methodological recommendations for the creation of business entities by budget-funded scientific and educational institutions of higher professional education for the purpose of practical application (implementation) of the results of intellectual activity" (hereinafter - Methodological recommendations).

The methodological recommendations are aimed at implementing a unified organizational and methodological support for the activities of educational institutions subordinate to Rosoobrazovanie when creating business entities for the purpose of applying (implementing) RIA and establish the procedure for:

Carrying out an inventory of intellectual property created in the institution during the implementation of government contracts, agreements, at its own expense, as well as acquired from third parties under agreements on the alienation of exclusive rights;

Definition of the list of RIA, including assessment of protectability, for practical application in the business entity created by the institution;

Amendments to the charter of a university planning to create a business company;

Registration of the university’s exclusive rights to RIA;

Registration of intangible assets for budget accounting;

Monetary valuation of the right to use exclusive rights to intellectual property;

Selecting an organizational and legal form, determining the location and size of the authorized capital of a business company and preparing constituent documents for the creation of a business company for the purposes of practical application (implementation) of RIA;

State registration of a business company and notification of the Ministry of Education and Science of the Russian Federation about its creation;

Formation of the authorized capital of the created business company;

Spending profits (dividends) received from the activities of a business company.

The mechanism for creating business entities and accounting for intellectual property created by this legislation will be discussed further.

Almost all students, ever since college, dream of launching their own startup, which will work no worse than Zuckerberg’s or, at least, Durov’s. Social networks, games, new services are opening here and there. Which path to take, which form of business to choose, how to develop at the most important initial stage and mess up as little as possible? I'll tell you about one tested option.

In any business there is a stage of “individual entrepreneur”, but there comes a moment when you understand that there will be no further development without opening a legal entity. Solving organizational problems when opening can overwhelm you so much that you may not have the time and energy to develop the business idea itself. Help can come from a completely unexpected direction - contact the institute you graduated from (or are graduating from). 10 years ago, our team did just that, a laboratory 30 meters away became our first office, and employees began teaching information technology at the department. Since then, a lot of water has passed under the bridge and a lot has changed.

Over the past two years, the activity of Russian universities has sharply increased in the direction of creating business companies together with business structures and individuals. One of the reasons for this was the entry into force of Federal Law N 217-FZ on August 15, 2009.

Business interest

Creating an innovative enterprise together with a university brings with it a number of wonderful opportunities. On the one hand, a university is a monstrous, clumsy and extremely bureaucratic structure, in the best traditions of Soviet government institutions. On the other hand, this is an organization with a formed infrastructure, including hundreds of premises, thousands of pieces of equipment, LAN, power networks, etc. Even if you do not take into account the benefits of 217-FZ, cooperation with a university provides a number of advantages:
  • The university may offer premises rental on preferential terms,
  • The university can provide equipment
  • the university has a legal department, accounting, marketing and other departments that you can contact for advice and help,
  • after all, the university can provide assistance in registering a society.
But perhaps the most important thing: you can get access to state budget projects that can only be carried out by an enterprise with state participation. Such projects, often large, are as necessary as water for startups. Established businesses are no less interested in them.
In addition, 217-FZ offers a number of advantages:
  • Firstly, this is preferential taxation. According to Federal Law N 310-FZ, companies created under 217-FZ can apply the Simplified Taxation System (STS). This means that the company does not have VAT (18%), the general rate on insurance premiums is only 14% (against the current 34 for other organizations) and when choosing the object of taxation - “Income”, the tax rate will be 6%, which can be reduced up to 3%.
  • Secondly, the law makes it possible to rent premises in your university or research institute without lengthy competitions.
Equally important, the law acts as a catalyst for universities to create joint ventures.

Our selfish interest

After reading the above information in mid-2011, we decided to open a joint venture for new business areas. Our aspirations were as follows (I’ll explain some):
  • Legalization of commercial activities at the university
    For a long time, our team “sat” on the premises of the department as a group of active teachers. Most questions arose from the commissions checking the activities of the department. Until recently, doing business within the walls of your alma mater was shameful.
  • Optimization of rental costs
  • Reducing the tax burden
    Payroll taxes are the most serious expense item for a company. The saved funds can be spent at least on development or simply increase the salaries themselves.
  • Access to university projects
  • Access to equipment
    The fact that expensive hardware and software purchased by educational institutions under various grants and targeted programs is frustrating. A small enterprise at a university needs it and can find the right use for it.
  • Opportunity to participate in state competitions and programs
    For example, before creating an enterprise with a university, we did not have access to the Ministry of Education and Science projects, and did not work with many government departments, including the military-industrial complex. Now the situation is changing for the better. And finally, we have the opportunity to participate in various regional and federal programs and competitions aimed at supporting innovative small businesses and subsidizing their expenses.

University interest

Do universities need this? Yes, it is necessary, and there are several reasons. To begin with, this is not the most positive, but typically Russian moment. The adoption of 217-FZ was accompanied by loud speeches by Dmitry Medvedev and Andrei Fursenko, who called on universities to jointly create small innovative enterprises. In Russia, the wishes of decision makers are usually perceived as orders. Accordingly, Rosobrazovanie put some pressure on universities in this direction, demanding to create companies. The situation was aggravated by Federal Law 83, according to which government institutions are now required to earn money and conduct commercial activities.
  • Universities have the opportunity to commercialize their scientific developments and attract extra-budgetary investments.
  • Universities can conduct custom R&D through small enterprises in order to take advantage of tax benefits and target use of profits.
  • Through small enterprises, universities can purchase equipment and materials without undergoing lengthy competitive procedures.
  • A small enterprise means higher-paying jobs for university employees and students than teaching.
  • Universities have extensive experience in participating in competitions and are able to “knock out” projects. But, unfortunately, many universities do not have enough project executors. Small businesses, on the other hand, have the resources to complete projects, and they could perfectly fill this “hole.”
  • Finally, universities can use the activities of small businesses in the educational process. This way, when teaching students, there are more practical exercises, more “life examples”. On the basis of the enterprise, students can undergo internships and perform certification work.
Thus, the interest of all parties is obvious. The solution is obvious: create a small innovative enterprise together with a university.

How to open a company?

The founders of a small innovative enterprise are two parties: a university and a business. The latter can be represented by two options:
  • Commercial company (legal entity)
  • Private founders (individuals)
Most of the small enterprises created at St. Petersburg State Technical University are established in the form: “University + individuals.” They are all employee and alumni startups. By the way, people who come “from the street” can also get a job to implement their ideas. For these purposes, St. Petersburg State Electronic Technical University has a Youth Innovation Center. To receive an equipped workplace and assistance from a business incubator, the applicant must present his ideas and developments. After passing the incubation period, any MIC participant can also organize a joint company with the university.

Having an established business (and for some political reasons), we acted as the founder of a small innovative enterprise as a legal entity.

Formation of a package of documents
Having familiarized ourselves with 217-FZ and other regulatory documents on the topic, and having secured the support of two key persons (the head of the department and the vice-rector for scientific work), we began to prepare documents. Operational work was carried out with the head of the university’s innovation department, who oversaw the work on opening both ours and previously created companies. Having received from him a package of “blanks” of constituent documents, we edited them to suit our tasks and sent them to a third-party company for LLC registration.
Review of required documents:
  • Service memo to the rector of the university with a request to consider the proposal of the department and the co-founder company to create a limited liability company at St. Petersburg State Economic University - this is the very first document. Based on the memo, the rector brings this issue to a meeting of the Academic Council.
  • Presentation of the enterprise. It is necessary to make a presentation of the newly created enterprise at a meeting of the Academic Council. To do this, we have prepared a short, strict and unprepossessing presentation in the university form and an accompanying speech. The academic council of the university approves the proposal to create an enterprise.
  • Minutes of the meeting of the founders of the company. The document lists the resolutions of the founders on the essential aspects of the company, including the resolution to create the company, enter into an agreement on establishment and agree on the charter of the company.
  • Agreement on the establishment of a company.
  • Charter of the company. A detailed description of all facets of society.
  • License Agreement to transfer non-exclusive rights to use RIA to the newly created company.
What to pay attention to
  • According to 217-FZ, the share of the university in the authorized capital of the company must be more than 33.3%
  • The rights to the result of intellectual activity contributed by the university as a contribution to the authorized capital must necessarily belong to the university.
Selecting a location (ex. legal address)
Considering that in the future the company will be located on the territory of the university and will officially rent premises, it is advisable to indicate the address of the university as the location of the company, which is what we did.
Taxation
When opening a company, you must immediately inform the tax office (in a separate application) about the type of taxation that will be used by the company (simplified simplified tax system or general simplified tax system). Here you need to consult with accountants - we recommend that start-up companies choose a simplified one.
Bank account
It was necessary to provide notarized copies of the statutory documents of all founders. Institute documents can be obtained from the legal department or, as in our case, notarized copies can be made from the originals issued against signature to an employee of the university. The difficulty was caused by the lack of a lease agreement for premises (there is a requirement of the Central Bank of the Russian Federation to combat money laundering and terrorism). A letter of guarantee from the university about the provision of premises for rent helped as a temporary solution to the issue. The fact of opening an account must be reported to the tax office and funds, otherwise huge fines will follow.
Letter to CISN
The decision on the compliance of the created enterprise with Federal Law 217-FZ is made by the Center for Research and Statistics of Science. Until the enterprise is included in the register of business companies created under 217-FZ, the company will not be able to enjoy the benefits and privileges prescribed by law. Therefore, a very important step will be the preparation and sending of a Notification Letter to CISN about the creation of a small enterprise. Along with the letter, you need to send a pack of certified copies of the constituent and some other documents. By the way, it is not necessary to have them certified by a notary (so as not to waste money): copies of all constituent documents can be certified by the general director of the created company, and copies of documents related to the university are certified by the rector’s office.
Room
To ensure that your company is not virtual and employees are not scattered throughout the department, you need to resolve the issue of premises. A direct, but not the most optimal option is to enter into a lease agreement with the university. By the way, the economic and administrative service of the university will not like it, because... you have rights to benefits and they will not receive additional extra-budgetary funds. An option that will suit everyone is the creation of a specialized educational and scientific laboratory at the department. Cathedral premises are not included in the rental turnover, business executives have no complaints, and it is easier to come to an agreement with the department by partially closing the educational and scientific process, improving reporting, not to mention economic contractual work.
The procedure for creating a laboratory in the documents: Internal memo on the creation of an educational and scientific laboratory of UNL → Cooperation Agreement → Order of the Rector → Regulations on UNL

Results in accordance with the objectives

  • Commercial activities within the university are legalized by a joint LLC and a number of cooperation agreements.
  • Premises: we gave away a 100-meter rented space, received a 140-meter space in the form of UNL.
  • Reducing the tax burden
  • We have already received access to university projects: we have begun to develop a system for recording and recording the university’s scientific and innovative activities. We will talk about it in detail in a separate post.
  • Access to equipment. We were lucky: the new UNL Institute decided to equip it with the latest multimedia and server equipment, and we were responsible for renovating the premises.
  • The opportunity to participate in state competitions and programs is still ahead.
No matter how I shortened it, the article turned out to be long, and even more was left behind the scenes. So ask, I will be happy to answer.

P.S. The new company was named URANSOFT

Thanks to staskin1 for help in preparing the article

From a legal point of view, the creation of a small innovative enterprise is no different from the creation of any other commercial companies - trading, intermediary, manufacturing, etc. An entrepreneur who wishes to create a small innovative enterprise must prepare a charter of the enterprise and, if he is not the sole owner of the company being created, a constituent agreement. The prepared documents must be submitted to the tax office, paying the appropriate fee and forming the authorized capital. If an entrepreneur does not have enough time or desire to prepare documents himself, then he can contact a law firm that prepares documents for registration and the actual registration with tax and other government authorities. The cost of services from such organizations is usually acceptable for an entrepreneur starting his own business.

Any commercial enterprise, including an innovative company, from the moment of its inception must conduct business activities that generate income sufficient to at least cover the costs of organizing accounting at the enterprise, maintaining an office (if there is one), and wages to employees. staff (if any), payment of telephone bills, Internet costs, etc. Unlike a business associated with the production of traditional products or the sale of a finished product, an entrepreneur engaged in R&D must first create a product - invent, make a prototype, test it, certify it, and only then begin its mass production and sale on the market. Of course, the latter is only true if the entrepreneur intends to engage in the production of the products he has developed, and not to sell patents for the manufacture of a new product he has created or for the replication of a new service he has developed. In all cases, an entrepreneur who decides to engage in innovation must understand that he must have funds to maintain the company’s activities before the start of sales of a newly created service or product on the market. In addition to funds to finance R&D to create a new product or service, such an entrepreneur must have a reserve to cover unplanned losses: delays in R&D, emergency situations, failure to obtain the required result, etc. (see chapter 9).

Thus, either an entrepreneur engaged in innovation must have another business, the income from which he can use to finance R&D in his innovative company. Or such an entrepreneur must have a reserve of funds sufficient to pay all future expenses for R&D and the commercialization of their results. Or he must win a grant to fund his company's R&D. Let us note that it is advisable to engage in any traditional business and use it to finance the initial stage of creating an innovative company only if at least two partners work in the business. One of the partners should devote most of his time to maintaining a traditional business that is currently generating profit, and the second should concentrate on the development and development of an innovative product. Moreover, business partners should set the goal of “promotion” of an innovative company.

Currently, financial institutions are being created in Russia to finance the start of an innovative business from funds allocated as grants and targeted funding for R&D in small companies. However, the system for financing innovative projects in the country is just taking shape, and few projects are actually financed using such a system. Therefore, when planning the business of a small innovative enterprise, it is better to count on the fact that the initial stage of creating such a company will be implemented by the entrepreneur at his own expense. The prospect of receiving external financing should be viewed as an “added bonus” that improves the company’s financial condition.

Russian legislation provides some benefits for innovative enterprises. Currently, the following documents are aimed at supporting innovative companies: Law “On State Support of Small Business in the Russian Federation” dated June 14, 1995, which provides for the creation of a Small Business Support Fund; Decree of the Government of the Russian Federation of December 31, 1999; Tax Code of the Russian Federation, Part II (2000), providing for some tax benefits when financing the innovative activities of organizations. In addition, in some subjects of the Federation, documents are adopted at the local level aimed at creating favorable conditions for the development of small innovative entrepreneurship in the region. The regions of Russia where local legislation supporting the regional innovation process is most developed include Moscow, St. Petersburg and Yekaterinburg.

An important aspect of any business, especially an innovative one, is marketing. For innovative companies focused on creating specific products and services for the market, properly organized marketing research becomes of paramount importance. Generally speaking, in a market economy, salesmanship and market knowledge are often more valuable than well-executed scientific research. In practice, there are cases when the results of promising scientific work did not reach the market, but a weaker development began to be replicated on a mass scale, bringing significant profits to its creators. The secret is simple - the promotion of such a development was carried out by a more qualified management team, who knew the market well and was able to come to an agreement with the investor.

Since marketing research must be carried out by an entrepreneur when opening an innovative company, and the market value of such services is very significant, the question of conducting them often becomes a “stumbling block” in creating a small enterprise. If an entrepreneur’s budget does not allow for the necessary research to be carried out in full, then you can use the techniques of so-called “guerrilla marketing” to obtain more or less reliable data about the market. As a rule, the accuracy of such forecasts is about 50-70%, which is quite acceptable for the initiation stage of a new innovative project.

The second way to reduce initial marketing costs is to hire a marketing specialist to work for an innovative company. This specialist must be well acquainted with the practice of marketing research to assess the market attractiveness of an innovative idea and organize its implementation in the company to the required extent. In addition, an entrepreneur creating a new innovative enterprise can receive the necessary assistance in conducting marketing research in a business incubator.

Once the necessary information about the market has been obtained, it is possible to approximately predict the volume of future production and the cost of products (services). An entrepreneur must carefully plan the economics of his future business, i.e. draw up a business plan.

Since the 80s of the last century, small enterprises with innovative projects began to appear in Russia. Their creation ensures the development of innovative projects and contributes to the stable development of the economic sphere. In the difficult decade of the 90s, a decrease in budgetary support and investment led to a reduction in scientific projects.

Today, small businesses are gaining momentum, but remain unstable. Its profitability has become significantly lower as investment investments have decreased.

Universities in the Central Federal District are currently experiencing increased activity. The Belgorod region is in the lead, as well as educational institutions of the Black Earth Region: Voronezh and Tambov regions.

The creation of small enterprises on the basis of educational institutions expands the capabilities of the scientific community, allowing them to increase the range of paid services, create jobs, and increase the competitiveness of participation in government programs.

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