Discussion on the Management and Protection (II) of Intellectual Property Rights in Colleges and Universities

-- From the perspective of promoting the transformation of scientific and technological achievements in colleges and universities

On August 29, 2015, the 16th meeting of the Standing Committee of the Twelfth National People's Congress passed a decision to amend the 1996 version of the Law of the the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements (hereinafter referred to as the Law on Promoting the Transformation of Scientific and Technological Achievements), and It will be formally implemented on October 1 of that year. It marks that the transformation of scientific and technological achievements and the application of intellectual property rights in China have ushered in a new era, and the scientific and technological achievements produced in universities and related scientific research institutes (hereinafter referred to as "universities") have made great achievements ".

1. Current Situation of Transformation of Scientific and Technological Achievements in Chinese Universities

Since 2015, my country has attached great importance to the transformation of scientific and technological achievements. The country hopes to use the power of science and technology to transform and upgrade traditional industries, cultivate new economic growth points, and promote economic development. At this stage, the transformation of scientific and technological achievements is our "national plan". Both the central and local governments have made a lot of efforts to promote the transformation of scientific and technological achievements. In 2015, the National People's Congress made substantial amendments to the Law on Promoting the Transformation of Scientific and Technological Achievements, which not only gave universities the right to independently decide on the use and disposal of scientific and technological achievements, but also stipulated that all income from the transformation of scientific and technological achievements should be retained by their own units, and improved scientific and technological achievements. The statutory minimum standards for transformation rewards, etc., through these measures to help the transformation of scientific and technological achievements in universities; the State Council has also successively issued "Several Opinions on Accelerating the Development of the Science and Technology Service Industry", "Several Opinions on Deepening the Reform of the System and Mechanism and Accelerating the Implementation of the Innovation-Driven Development Strategy" and other regulations to promote the transformation of scientific and technological achievements. Since the implementation of the new law on promoting the transformation of scientific and technological achievements, policies and documents related to the transformation of scientific and technological achievements have been issued almost every month.
The "red envelope" of the policy has been issued again and again, and the transformation of scientific and technological achievements is also on the right track. At the first forum on the transformation of scientific and technological achievements in colleges and universities held on December 17, 2016, the relevant person in charge of the Ministry of Science and Technology predicted that the total amount of technology transactions in 16 years is estimated to break through the trillion yuan mark. However, as the absolute main force of scientific and technological achievements to be transformed, colleges and universities always seem to be a little "afraid of hands and feet" in the face of promoting the transformation of scientific and technological achievements ". At present, the conversion rate of scientific and technological achievements in my country's universities is still at a low level compared with developed countries such as Europe, America and Japan. According to relevant media reports, the conversion rate of scientific and technological achievements in developed countries such as Europe, America and Japan can reach 30%. In contrast, in my country, the conversion rate of scientific and technological achievements in universities is Less than 10%.
Generally speaking, with the promulgation of a series of national policies and laws, the transformation of scientific and technological achievements in colleges and universities in China is in a significant improvement environment. However, in practice, there are still many factors that restrict the pace of transformation of scientific and technological achievements in colleges and universities.

2. Factors Restricting the Transformation of Scientific and Technological Achievements in Colleges and Universities

Restricting the transformation of scientific and technological achievements in colleges and universities, there are not only external factors such as government, market and so on, but also the problems of similar scientific research personnel concept and assessment mechanism in colleges and universities.
1. External factors
(1) There is a contradiction between the transformation of scientific and technological achievements and the supervision of state-owned assets.
The content of the transformation of scientific and technological achievements in colleges and universities is the scientific research achievements of university researchers, which belongs to state-owned assets. The methods of transformation are usually transfer, licensing and technology shareholding. The preservation and appreciation of state-owned assets is the basic obligation of state-owned enterprises and institutions. Since the scientific and technological achievements to be transformed in colleges and universities are all job creation, then the transformation needs to be evaluated, and the evaluation will have value. However, if the project is unsuccessful, the follow-up management is not good, and the enterprise goes bankrupt and liquidated, the loss of state-owned assets may occur at this time. Therefore, in practice, there has been a phenomenon that science and technology is "going forward bravely" and constantly introducing encouraging policies, while state-owned assets management is "guarding" to strictly prevent the loss of state-owned assets, and there is disharmony among different government departments. this has led to the phenomenon that some colleges and universities are "waiting and so on" for fear of making mistakes, which directly hinders the pace of the transformation of scientific and technological achievements in colleges and universities.
(2) The government's existing scientific and technological achievements transformation policy is not compatible with market demand
In essence, the transformation of scientific and technological achievements in colleges and universities is a market behavior, which is a process of engineering development suitable for the production of commercial products by combining the scientific and technological achievements with social resources produced in colleges and universities. Market demand determines the value and feasibility of the transformation of scientific and technological achievements in colleges and universities, and the scientific and technological achievements that can be transformed must have practical value. In view of this, the government should issue more market-oriented policies and laws, but the reality is that although the government has been issuing policies to encourage the transformation of scientific and technological achievements, it lacks a set of reasonable evaluation system for scientific and technological achievements. the new Law on promoting the Transformation of Scientific and technological achievements only stipulates that "scientific and technological achievements refer to achievements with practical value produced through scientific research and technological development." however, what is "practical value", the law does not give a clear definition. This leads to the problems of the good and the bad in the market of the transformation of scientific and technological achievements in colleges and universities in practice, the low conversion rate of scientific and technological achievements in colleges and universities, and the low quality of transformation.
(3) The entire scientific research system does not meet the market demand for the transformation of scientific and technological achievements.
As mentioned earlier, the transformation of scientific and technological achievements should be guided by the real needs of the market, and those that meet the needs of the market are valuable. Nowadays, quite a lot of scientific and technological achievements in colleges and universities are not for transformation, but for better application for scientific research projects and patents, and even from a market point of view, there is no practical value at all, which reflects the problems existing in our entire scientific research system.
(4) There is a contradiction between the current management system and the documents related to the transformation of scientific and technological achievements.
There is a contradiction between the current management system of scientific research funds in colleges and universities and the relevant documents on the transformation of scientific and technological achievements. at present, the management system of scientific research funds in colleges and universities is strict with the management and examination and approval system for the use of scientific research funds. if the person in charge of the scientific research team is careless in the use of scientific research funds, it will "press the red line" and bear administrative and even criminal responsibility. The person in charge of the scientific research team does not distinguish between public and private in the process of scientific research. There are both self-operated companies and state-owned scientific research projects. In actual operation, it is very likely that corruption under the criminal law will occur due to non-compliance in the use of funds.
2. Internal factors
(1) The concept of scientific research personnel in colleges and universities is not compatible with the actual transformation of scientific and technological achievements.
At present, the general concern of colleges and universities is still the paper and scientific research results, heavy paper publishing light patent implementation, heavy results identification light patent application. Many scientific and technological achievements are published in the form of papers, which lose their confidentiality as patents or proprietary technologies and cannot be protected by law. As a result, these scientific and technological achievements are used free of charge by the society and lose the value of transformation. The outline of the national medium and long term education reform and development plan clearly requires colleges and universities to firmly establish the consciousness of actively serving the society, promote the combination of production, teaching, research and application, and accelerate the transformation of scientific and technological achievements. However, "the ideal is full and the reality is very skinny". Some researchers in colleges and universities still adhere to the concept of scientific research> teaching> social service. Schools regard "fame" as an important task, and teachers regard "professional title" as their own responsibility. Few colleges and universities focus on "social service" and economic benefits. A series of policies issued by the government to promote the transformation of scientific and technological achievements in colleges and universities are difficult to implement.
(2) The assessment system of colleges and universities is not compatible with the actual transformation of scientific and technological achievements.
The existing assessment mechanism of colleges and universities still focuses on the evaluation of individual achievements, while neglecting the evaluation of individual discipline construction and scientific research team construction. The number of scientific research projects undertaken by individuals, the number of papers published, the number of international academic conferences, the level and number of awards still account for a large weight, which coincides with the concept of university teachers valuing "professional titles" over "social services. As the main members of the transformation of scientific and technological achievements, the enthusiasm of higher education researchers will directly affect the transformation of scientific and technological achievements in colleges and universities. Although the new Law on Promoting the Transformation of Scientific and Technological Achievements has raised the statutory minimum standard for rewards for the transformation of scientific and technological achievements to 50%, it is far from enough to stimulate the enthusiasm of scientific research personnel to transform scientific and technological achievements. Professional title evaluation, post management and assessment are linked, forcing scientific research personnel to increase their attention and participation in the transformation of scientific and technological achievements.

3. the Perfect Mechanism of Promoting the Transformation of Scientific and Technological Achievements in Colleges and Universities

The transformation of scientific and technological achievements in colleges and universities is a systematic and long-term project, which is inseparable from the joint efforts of the government, society, universities and researchers. As lawyers, we can and should also contribute to the transformation of scientific and technological achievements in colleges and universities. The author believes that to improve the mechanism of promoting the transformation of scientific and technological achievements in colleges and universities can be carried out from the following aspects:
1. The government should improve the relevant legal system and build a new mechanism to guarantee the transformation of scientific and technological achievements.
First, it is necessary to reform the supporting system. For example, in the "State-owned Assets Law", different supervision methods should be established for operating assets and non-operating assets, tangible assets and intangible assets. Second, it is necessary to establish a corresponding fault-tolerant mechanism, because for the transformation of scientific and technological achievements in colleges and universities, benefits and risks coexist, and the greater the challenge, the greater the risk of failure. In practice, the proportion of people who successfully complete the transformation of scientific and technological achievements in colleges and universities is very small. If there is no corresponding fault-tolerant mechanism, it is difficult for university researchers to actively participate in the transformation of achievements. Third, in the supervision of state-owned assets, the preservation and appreciation of state-owned assets should be analyzed in detail. The state-owned assets after the transformation of achievements can not be lost, and need to maintain and increase their value. The author believes that such requirements are necessary for a certain university as a whole. However, if such requirements are put forward for a specific scientific and technological achievements transformation project of a university, it is inevitable that they are too strict, which will hinder the process of transformation of scientific and technological achievements. Finally, the state industry and commerce, taxation and other administrative departments should also streamline administration and delegate powers. For example, when making equity changes in the process of equity incentives, the industry and commerce department can directly make equity changes based on the university's approval of equity awards, without waiting for the property rights transaction. Transaction certificate issued by the department. The tax department should give preferential treatment to the individual income tax of equity incentive, relieve the tax pressure of university scientific research personnel, and stimulate the enthusiasm of university scientific research personnel to transform scientific and technological achievements.
2. Give full play to the role of lawyers as a bridge, build a new platform for school-enterprise cooperation, and establish a long-term mechanism for school-enterprise cooperation
The transformation of scientific and technological achievements in colleges and universities has gone through the process of 1. secondary development and commercialization of scientific and technological achievements. Its success or failure largely depends on the degree of integration with society and enterprise resources. If the degree of integration is high, the success rate is high. On the contrary, the degree of integration is low., The success rate is also low. As we all know, patents or product technologies derived from any knowledge achievements are time-sensitive. Colleges and universities have produced a large number of scientific and technological achievements based on their strong scientific research capabilities. As the main participants in the market economy, enterprises have a clear understanding of market trends, real market demand and industrial prospects. Enterprises that have been active in the front line of the market for a long time know what technologies and products the market needs most. Through school-enterprise cooperation, the scientific and technological innovation and development capabilities of universities are closely integrated with the engineering conditions provided by enterprises, which not only makes the transformation of scientific and technological achievements of universities more practical, but also enhances their core competitiveness and creates profits. Achieving a win-win situation between universities and enterprises.
In view of this, in order to promote the transformation of scientific and technological achievements in colleges and universities, we must strengthen school-enterprise cooperation and establish a long-term mechanism for school-enterprise cooperation, and our lawyers can play the role of media and bridges here. Lawyers have a large number of enterprise resources and university resources. Lawyers not only have a deep and clear understanding of the production capacity, production demand and financial strength of enterprises, but also have a clear understanding of the research and development capabilities and achievements of colleges and universities. Lawyers understand the needs of enterprises for scientific and technological achievements and the scientific and technological achievements that universities want to transform. Through lawyers, they build bridges between enterprises and universities to form a school-enterprise cooperation model, and establish a long-term mechanism for school-enterprise cooperation to realize the scientific and technological achievements of universities. Market value promotes the transformation of scientific and technological achievements in universities.
3, colleges and universities to promote the transformation of scientific and technological achievements of the internal improvement mechanism.
(1) Make preparations before the transformation of scientific and technological achievements
On the one hand, colleges and universities should enhance their sense of responsibility, conduct detailed research on the scientific and technological achievements to be transformed, clarify the market demand, and have a complete understanding of the scientific and technological achievements, analyze their life cycle, and choose the appropriate time to enter the market; on the other hand, colleges and universities should adhere to the basic principle of clear ownership of property rights, and the definition and division of property rights of scientific and technological achievements should comply with relevant national regulations, this is bound to be inseparable from the lawyer's review of the compliance and legal risks of the transformation of scientific and technological achievements in colleges and universities.
(2) Establishment of a special technology transfer department
In the United States, Germany, Japan and other countries with high conversion rate of scientific and technological achievements, almost every university has its own special technology transfer office. Its main work is to screen the achievements, apply for patents and invest in patents. The Technology Transfer Office will pre-judge the transformation of the results. If it believes that the transformation can be successful, it will apply for a patent for it; if it believes that the transformation cannot be completed, it will be handled by the researchers themselves. The author thinks that colleges and universities in China can also learn from this model and set up a special technology transfer department composed of investors, researchers and lawyers, which will have more advantages compared with the intermediary structure in the society. First, there are funds, second, to understand the source of technology, and third, to be able to control legal risks. To improve the quality and success rate of the transformation of scientific and technological achievements in colleges and universities through the specialization of talents.
(3) Introduce a management system related to scientific research funds, improve the internal assessment mechanism, and reduce pressure for scientific research personnel.
Under the framework of current laws and regulations, we should fully consider the complexity and risks of scientific research work, fully communicate and coordinate with the competent departments of science and technology and the state-owned assets management departments, and issue effective and approachable regulations on the management of scientific research funds, so as to reduce the pressure for scientific research personnel, and avoid the "landmines" of scientific research personnel who do not understand the property system and legal provisions and mistakenly step on the legal and financial system ". Correspondingly, colleges and universities should also improve the internal assessment mechanism for scientific research personnel, establish a performance evaluation system that is conducive to promoting the transformation of scientific and technological achievements, widen the entrance and lock the exit. Truly regard the transformation of scientific and technological achievements as one of the standards for internal management or innovative ability evaluation, and establish professional title evaluation, post management and evaluation standards that are more in line with the characteristics of the transformation of scientific and technological achievements.
(4) According to the legal advice of lawyers, different incentive distribution schemes are adopted for scientific researchers.
In the process of transformation of scientific and technological achievements in colleges and universities, how to motivate scientific research personnel is also a problem worthy of attention. According to the government's incentive policy, the main ways of reward are income dividends and equity distribution. In view of the differences in the disciplinary attributes of scientific and technological achievements in colleges and universities, the vitality cycle of the results, the differences in investment partners and the differences in transformation methods and other factors, different incentive distribution schemes should be adopted for scientific researchers in colleges and universities. Lawyers formulate special incentive measures for scientific researchers in colleges and universities, such as incentive means, time, reward distribution ratio, etc., comprehensively consider the interests of all aspects, and according to the characteristics of establishing a long-term mechanism for school-enterprise cooperation, formulate a set of incentive programs with both binding and reward, while maintaining the sense of responsibility of university researchers, it also stimulates their enthusiasm to participate in the transformation of scientific and technological achievements.
The government gives greater autonomy to scientific research personnel in colleges and universities, and colleges and universities use the power of lawyers to formulate supporting policies, including setting up professional departments, improving the assessment and distribution mechanism, strengthening school-enterprise cooperation, etc., to give full play to the leading role of colleges and universities, and work with all sectors of society, To jointly create a new pattern of prosperity in the transformation of scientific and technological achievements in colleges and universities.