If you're so smart, why are you so poor?
Does a smart person have a chance to become rich?
On the formation of the intellectual property market
Interview with the Director of the Republican Research Institute of Intellectual Property, Doctor of Law V.N.LopatinInterviewed by Sergey Sharakshane, website of the Russian Academy of Sciences
The share of innovative products of Russia in the total volume of sales of industrial products is extremely small – does not exceed 5%.
Why? The experience of the transition to an innovative economy in the USA, Western Europe, Japan and China shows that the basic condition for this transition is the formation of an intellectual property market. And how is this market formed in our country? The editorial board addressed this question to the Director of the Republican Research Institute of Intellectual Property, Chairman of the Board of the Intellectual Property Corporation RNIIIS, Chairman of the National Technical Committee "Intellectual Property" (TK-481), Doctor of Law, Professor V.N.Lopatin.
– Vladimir Nikolaevich, is there the potential of the intellectual property market in Russia and to what extent is it being realized? – According to the number of scientists, Russia occupies one of the first places in the world, about 30 thousand doctors and candidates of sciences join their squad every year – and in this sense, the potential of the intellectual property market is huge.
However, at the same time, the share of our high-tech products on sale in world trade is 0.3%, i.e. we occupy one of the last places.
How to explain this discrepancy? Simple! The results of scientific and technical activities and the rights to them, for the most part, are not brought to the stage of commercialization, i.e., to implementation in the domestic and foreign markets.
For comparison: in China, the results of scientific research, on the contrary, quickly find a consumer, and this is because the "rules of the game" with intellectual property are spelled out here taking into account the interests of each participant. As a result: only one municipal Chinese city has about 25 thousand patents, i.e. about as many as the whole of Russia patents per year.
In our country, the rights are secured only for a tenth of the results obtained, the rest is unclear to whom it belongs, is sent to the shelves, lies as a dead weight outside the state and corporate interests. The development of money allocated for science (I mean, first of all, applied science) is underway, but there is no final product.
The rights to the protected results of intellectual activity (in accordance with Part four of the Civil Code of the Russian Federation – intellectual rights) would have to act as one of the main market segments in the innovative economy. However, in relation to the absolute majority of the results of scientific and technical activities today, such rights are not secured: neither in an open way - through patenting, nor in a closed way – through know–how in the mode of trade secrets. A paradoxical situation has developed: in the country, on the one hand, there is no legal turnover of innovative goods and intellectual property, and, on the other hand, most of the results of intellectual activity, which in principle cannot be objects of market relations (in accordance with Article 129 of the Civil Code of the Russian Federation), are still in circulation – "black" or "gray."
We have the highest share of the state in financing science in the world, over 75 percent – in the leading countries, the proportion is reversed, there is so much private investment. And therefore, it would seem, if you pay, then order music! But the state turns out to be an inefficient owner.
- why?– Of course, one of the reasons for the current situation is that the former Soviet patenting system has been destroyed: out of thousands of enterprises operating in Russia, there are only dozens of patent licensing services!
But it's not just that. Most of today's state contracts do not even contain rules on securing the rights to the results of intellectual activity created during the execution of these state contracts.
In the innovative economies of the West, up to 20% of the results of intellectual activity are patented in the scientific and technical sphere and - it is important to emphasize! – about the same amount is sold, i.e. licensing and alienation agreements are concluded, if we speak in our terminology. Because patenting, which is carried out on all intellectual property objects, is an expensive procedure, and it is carried out as a commercial transaction. Out of 260 thousand patents that are valid in the Russian Federation today, the number of patents for which licensing and other sales contracts have been concluded is less than 2%, i.e. negligible.
Southern Federal University, one of the leaders of modern federal construction in universities, has received 260 patents over the past five years, and one third of them is no longer valid. Although the patent is valid for twenty years. The question is – what was patented for then? For a report on attracting new money from the state budget? It turns out that this is the case: the number of patents received was simply reported to the customer, i.e. the state. And at the same time, it doesn't matter that according to the 260 patents received, there is not a single license agreement, not a single alienation agreement, not a single sale, i.e. the commercial effect is zero, although excellent fundraising, i.e. the university's attraction of money for science in the amount of 3 billion rubles, but this, alas, is almost the whole result.
By the way, according to the Ministry of Education and Science, out of more than 700 small enterprises educated at universities, about which they so cheerfully reported to the country's leadership, more than 40%, as inspections showed, were registered in violation of the requirements of FZ -217, and in full compliance with established procedures, units of enterprises were created in general.
Now let's turn to another important aspect of the world patenting practice: patenting a national invention abroad in your country. This makes it possible for advanced countries to effectively sell their rights on the territory of other states, as well as to protect these rights when they are violated. This is how every fourth national invention is patented by developed countries today. Russia patents abroad only every sixtieth of its national invention, which is 100 times less than in the USA, and 50 times less than in Germany. It is clear that the system of selection and patenting of Russian national inventions abroad must be urgently restored.
But there is another curious phenomenon: foreign countries are actively patenting their developments here in Russia. So active that the question is natural: do we have a system of control over the transfer of Russian technologies to other countries? Alas, there is no such system. Over the past five years, the number of foreigners among holders of Russian patents has doubled (from 1/6 to 1/3), and in some areas this share is even higher. For example, in the field of nanotechnology, only 1 out of 10 Russian patents have been issued to domestic inventors, the remaining 9/10 to foreigners. The situation is paradoxical. After all, the production of nanomaterials and nanoproducts has been declared a priority in Russia, respectively, here, including to the state corporation (now JSC) Rosnanotech, about 200 billion rubles have been allocated for these purposes. However, this production is already protected by patents of nanotechnology owned by foreign companies. And, consequently, Russia will have to conclude licensing agreements with the holders of these patents in the future, otherwise (according to Article 1252 of the Civil Code of the Russian Federation) products obtained using those technologies will be recognized as counterfeit and will be subject to seizure, however, as the equipment and raw materials from which it is made.
This is how, due to the weak legal protection of our intellectual property, its outflow abroad occurs, which threatens Russia with increasing its technological dependence, including undermining its defense capability.
– It turns out that, firstly, it is necessary to teach (help, create conditions, interest, force, etc.) Russian researchers to formalize the rights to the results of their scientific and technical creativity, and, secondly, to immediately commercialize them. So? – Yes, but, alas, this is not enough.
Intellectual property, among other things, does not find an interested consumer in Russia. There are several reasons for this phenomenon, but one of the important reasons is that money for science is distributed by government departments that have little relation to the real sector of the economy. The flaw lies, therefore, in the very system of allocating money for science.
Take, as an example, the State of Israel, which, having worse starting conditions than our country, took a course for innovation twenty years ago. For Israel, in the absence of its natural resources, this was the only way to develop, to enter the international market. And what is the result for today? There is a system that allows the country to be competitive, Israel is displacing us from traditional markets, including in India, where for forty years we had the first place in certain types of products. And in many countries where we have been in the first place for decades, we are leaving our positions because of a serious lag in innovative technologies.
Why? Look, in Israel, about 50% of all expenses for applied scientific research in civil science are distributed by the Ministry of Industry and Labor. The second largest "pie" from the state budget for civil applied science is distributed by the so–called National Science Foundation - an analogue of our Academy of Sciences. And the Ministry of Science? It occupies only the fourth place in the distribution of money for science. Thus, it is clearly visible who in this country is the main customer of applied scientific research: the ministry responsible for the real sector of the economy.
And in our country? The main part of the budget money – 386 billion rubles (as of last year) – is distributed by the Ministry of Education and Science, as we understand – very far from the real needs of industry. The second largest expenditure flow for R&D goes through the Ministry of Economic Development, which, working at the "macro level", is also very slightly responsible for the real sector of the economy. However, such ministries as the Ministry of Industry and Trade, the Ministry of Energy and the Ministry of Regional Development, which are really responsible for the real state of the domestic industry, alas, do not have a significant impact – neither on the formation of the federal R&D program, nor on its execution.
What do we get? – The state order for scientific research in the interests of modernization is formed by those who have weak ideas about these very interests. Roughly speaking, the wrong people distribute the money: the "development" of budget funds is organized instead of receiving an innovative product (I mean, of course, first of all, applied science). Enterprises are excluded from the formation of research programs – that's why these programs are far from real life, from the needs of the economy.
The formation of research programs is carried out by officials through structures close to them – hence the "kickbacks". The Federal Antimonopoly Service, after checking our appeals, found out that the winners of the contests were recognized by those who had no right to participate in them at all. More than a third of the funds allocated for science does not reach science, but goes to "kickbacks" to officials who distribute these very billions. The problem has become so acute that the sphere of R&D financing today can be ranked among the most corrupt areas. And the situation will not change as long as the money for research will be distributed by ministerial officials, and not by those who have to withstand tough market competition in the real sector of the economy.
Accordingly, mechanisms hiding "kickbacks" were born. In particular, since the development of money for R&D is carried out according to indicators, therefore, some other results than scientific achievements become indicators. The Ministry of Education and Science and the Ministry of Economic Development have been officially imposing publications, seminars, citation ratings, etc. as an assessment of the effectiveness of applied science for several years. And this is at a time when in the innovative economies of the West, the indicator of the effectiveness of applied science is the number of realized results of intellectual activity and rights to them: license agreements concluded, the share of intellectual property in the structure of the price of innovative products, the share of intellectual property and its volume as a whole in sales. In our country, this natural performance indicator was reversed with citation ratings, apparently to justify the lack of implementation of intellectual property products and to hide the "rollback" interest. Of course, this interest needs to be broken, and, first of all, through a change in the mechanism of financing science.
– But maybe the point is that the scientist simply does not know how to commercialize his results?
"That's right! Many people remember how the Minister E.Sh.Nabiullina cited as an example of how to patent products, the American corporation IBM, the leader in the American intellectual property market, which receives over five thousand patents a year. Representatives of this corporation came to our Institute and told us this. The results of the creativity of three thousand scientists who work for them are processed, evaluated and sold in the form of intellectual property by 250 lawyers, as well as 80 economists and managers profiled in the field of intellectual property, i.e. a whole special division of IBM. The result of sales and commercialization of the rights of creativity of scientists is $1.5-2 billion. the annual profit of the company.
And what about us? With the lack of demand for Russian scientific developments in the interests of modernization of domestic production, the level of imported supplies of technologies and equipment has grown to a critical level in all basic industries.
For example, of the 100 billion rubles allocated in recent years as investments in the modernization of the industry of the Sverdlovsk region (based on metallurgy and heavy machinery), 90% went abroad to purchase imported technologies and equipment. At the same time, more than 30 thousand scientists and researchers live and work in this region.
The situation is similar in St. Petersburg, where about 200 thousand researchers live and work, including 55 thousand doctors and candidates of sciences: more than in the whole of Germany. At the same time, a significant part of the 90 billion rubles allocated in 2010 for the modernization of local industrial enterprises (about 700) also went abroad. At the same time, foreign campaigns often use commercial bribery and other types of corruption offenses in the struggle to obtain such a supply order.
In Moscow, the number of scientists is also orders of magnitude greater, and the return is orders of magnitude less. There are several reasons: this is the lack of demand for scientific and technical innovations in production, and the fact that our scientists are not accustomed to formalize the rights to the results that need to be commercialized, and the fact that we do not have professional intermediaries. A good scientist is not always a good manager, there must be a trained team of specialists. However, let's look at the state educational standard – there is no specialization in the field of intellectual property for lawyers, economists, and managers. With a minimum need for Russia – 50 thousand intermediary specialists in the field of intellectual property - the Russian State Academy of Intellectual Property graduates only 150 people a year. Corporations turn to our Institute – give specialists! They are in demand. This fact alone shows how we are losing our competitive advantages.
– And what do we have at the legislative level?– It is necessary to write the rules by which this market should act.
And we are moving in this direction, however, slowly so far. For example, it has been a decade since innovative development was declared as a priority of Russia's state policy, but the federal law on innovation has not been adopted. In these conditions, about 60 regions of the country adopt their own laws, which often contradict each other. Is it possible to build a single market if the rules in each region are different?
Even with the introduction of the fourth part of the Civil Code, there were still problems and new ones appeared. For example, the authorship rights to know-how are insufficiently secured (Chapter 75 of the Civil Code of the Russian Federation), i.e. in this relatively new institute of intellectual property for Russia, the balance of interests of the customer, the contractor and the author has not yet been provided by law. But the investor asks the first question: who owns the scientific development? By investing money in its implementation, he wants to deal with an absolutely legitimate owner. This is what is surprising: the state, financing three-quarters of all R&D in the country, does not seek to secure rights for itself (in the person of state customers) and does not create conditions for securing rights for performers. Of the 48 state customers, only about 30 participate in the state Register of intellectual property.
There is no clear understanding and criteria for separating scientific works from literary works as objects of intellectual property, although this is of fundamental importance for scientists. In works, the objective form is protected by law, whereas for science it is the content that is important. Therefore, our Institute initiated the inclusion in the national standardization program for 2011 of the development of projects of three national standards in this area: terms and definitions, scientific discoveries and scientific works. Now their development is underway at the RNIIIS under a state contract with Rosstandart. Recently, the National Technical Committee for Standardization (TC-481) approved the concepts of these projects for further work. By the way, in order to more effectively protect the interests of domestic scientists, the RNIIIS decided to deposit scientific discoveries and scientific works.
We also do not have a single state policy (not to be confused with departmental) that unites the efforts of government and business, i.e. the management of the innovation process is dispersed. More than 80 federal agencies distribute budget money for science, 23 agencies have direct intellectual property functions in their competence, 12 federal authorities are responsible for protecting the rights to the results obtained and 3 coordinate their interaction. In short, we need a system with a single coordination center, which should be entrusted with solving the entire range of issues in this area.
The issue of intellectual property protection is also extremely acute. Today, we still have only isolated cases when courts pass sentences for infringement of patent rights, for violation of the rights to know-how protected in the regime of trade secrets (Article 183 of the Criminal Code of the Russian Federation), which, of course, does not reflect the real situation.
We need a system that works according to uniform, clear and transparent rules and has a single coordination center.
– Is there something that inspires optimism?– There is.
For example, how vigorously the course on the formation of the intellectual property market is being implemented at the regional level in the Republic of Tatarstan. Look at the timing: 2009 – the President of Russia sets the task of building a civilized intellectual property market for innovative development, 2010 – the President of Tatarstan in a message to the parliament and the government sets the task of forming such a program at the regional level, 2011 – the republic begins to develop and implement a long-term target program for the development of the regional intellectual property market in order to in 2020, to achieve global indicators on the intellectual property market.
– An ambitious task! – But it's doable!
And the experience of our Institute confirms this. Using the technologies developed by us, only over the past two years in Russia we have helped to evaluate and sell the Russian intellectual property of domestic enterprises, corporations and organizations in the amount of about 2 billion rubles – so much in Russia no one has ever sold.
In Russia, such successful examples are still isolated, which is often determined by the level of competence of heads of corporations and enterprises. Thus, in Uralvagozavod Corporation, intellectual property works both as a mechanism for creating added value with the growth of intellectual property sales over the past three years (in the structure of the price of innovative products – up to 10%), and as a means of capitalization of assets (at the beginning of 2011 – the intangible assets of the corporation amounted to more than 4 billion rubles – the leader in Russia), and as an investment resource secured by these assets. Another example is the international project "Sukhoi – Superjet 100", where Russia was initially assigned the role of an aircraft assembly site from foreign components. However, even here we managed to find, formalize, evaluate and contribute Russian intellectual property to the authorized capital, proving that Russia was, is and will be a country of brilliant people, and we have something to trade besides raw materials.
Today, on the basis of our former regional intellectual property centers, together with leading federal universities, research centers, corporations, a wide network of regional intellectual property centers has been created from the North-Eastern (in Magadan) to the Southern (in Rostov-on-Don), which since October 2011 have merged into the first Russian intellectual property corporation RNIIIS. The activities of the corporation and regional centers are based on recognized intellectual property management technologies developed by our specialists. Our common task is to switch from these one–time fragments of the intellectual property market to the flow method.
This understanding is maturing both at the regional level and at the sectoral level – among our ministers. But, unfortunately, at the level of their departments, it is still very slow. However, this also happens. And a vivid example is the creation of the country's first industrial technical and innovation center for the modernization of two basic industries – metallurgy and heavy engineering in Yekaterinburg. Several interested parties have joined together – the Scientific Council for Metallurgy and Metal Science of the Academy of Sciences (chairman – Academician Leopold I. Leontiev), our Institute, a number of universities in the Middle Urals, and together with the government of the Sverdlovsk region have developed a concept of combining university, academic and applied science in the interests of modernization of these industries. Deputy Prime Minister Igor Sechin wrote a resolution to five federal ministers on the need to implement this program in a short time.
In other words, the process is slow, but still moving forward. And this, in particular, was noted at the III International Forum "Innovative Development through the Intellectual Property Market", which was held in Moscow in April this year.
– Briefly name its results, meaning.– The Forum, figuratively speaking, monitored the state of legal and economic relations in the field of intellectual activity affecting the development of entrepreneurship.
Scientists, specialists, businessmen in more than thirty reports have raised a number of serious problems, suggested ways to solve them, formulated recommendations for authorities, science and business. The range of issues raised is wide: these are programs for training innovative personnel; development of projects for which the market should exist and function; creation of public-private partnership mechanisms – both at the national and international levels; development of business contacts in the commercial turnover of intellectual property. Representatives of the European Union and CIS countries discussed the establishment of intellectual property management centers within the framework of the European Commission project. The next, IV Forum, will be held on April 26 next year, we invite you to participate in it, you can get acquainted with the terms of participation on the website of the Forum Directorate – RNIIIS (www. rniiis.ru ).
– Did the discussion at the Forum remain behind the scenes, did it reach the public?
– The recommendations of our Forums reach both wide circles of specialists and business, and to the top political level. And this is clearly seen by the way the declarations on strategic priorities are formulated. Take, for example, the formula: "innovative development through the intellectual property market." Some three years ago, the leadership of our country did not pronounce such a phrase, completely different words were said - that a "knowledge economy" was needed, etc.
We are a very rich country and so far, unfortunately, we are trying to give our ideas to the whole world. This is wrong! In order for the smart to be rich, it is necessary that a market mechanism for the protection, use and protection of rights to intellectual creativity products should work. And I hope it will soon work in full force, so there is no need to leave Russia, you need to live and work in Russia.
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28.11.2011