Interests of participants in technology transfer and the mechanism of their provision
Authors: Ivanova Kseniia 
Published: January 2021

Problem setting. One of the subsystems of the National Innovative System is the field of technology transfer. Considering the NIS from the point of view of the interests pursued by its participants (subjects), the mechanism introduced by the legislator, providing legal regulation of certain social relations, directly depends on what interests they pursue.

Analysis of recent researches and publications. The following scientists drew attention to the problems of regulation of relations in the field of technology transfer: O. M. Davydiuk, Yu. M. Kapitsa, D. S. Makhnovsky, V. S. Milash, O. P. Orlyuk, B. M. Paduchak, O. E. Simson. However, further study of these relations remains relevant especially in view of the constant updating of current legislation.

Target of research is to analyze the mechanisms for satisfying the interests of participants (subjects) of technology transfer, which are introduced in the current legislation and are proposed for the future.

Article’s main body. Considering the national innovative system from the point of view of the interests pursued by its participants (subjects), we can distinguish the interests of the author of the technology, recipient, technology donor and the state, whose interests determine the overall vector of the transfer process. The primary subject in technology transfer is the author of the technology – an individual who can act as a direct participant (subject) of technology transfer and be its donor, who independently decides the legal fate of the technology and / or its components. However, the author of the technology may not be a donor when it comes to the relationship between him and his employer as a performer of scientific research and development work for the budget. In this case, although the technology is created by the direct work of the author-employee, property rights to the technology are assigned to the enterprise, research institution, organization or institution of higher education as the executor of these works (organization-developer), and the author is entitled to royalties. Thus, a compromise is reached between the parties and provides the necessary balance of interests of the employer and the author. In the transfer of technology, which occurs through the conclusion of the contract, the interests of the parties to the contract are mutually conditioned. These entities, realizing their property interests, act in contractual relations on the principle of dispositiveness, ie equality of the parties, and the state does not interfere in these relations. And only when the sphere of interests of the subjects of transfer affects the interests of the state, the relationship is complicated by the establishment of additional requirements and / or procedures (in particular, the export of technologies created or purchased from the budget). The interest of the state in this case is due to the purpose of preserving national and technological security, control over the misuse of budget funds during the financing of R & D, solving other strategic tasks. The protective mechanism of legal support of the state’s interests introduced in the Law is implemented through the establishment of requirements for the use of technology and / or their components, created or purchased for budget funds, mainly on the territory of Ukraine; conducting state expertise for technologies and / or their components, which are purchased for budget funds (including through their import). Meanwhile, the world practice is aware of other means aimed at protecting the interests of the state, such as control over the re-export of technology in order to eliminate the possibility of further transfer of technology from its donor to others.

Conclusions and prospects for the development. The field of technology transfer is characterized by a combination of imperative and dispositive methods of legal regulation. When concluding a technology transfer agreement, the parties agree on its terms, based on their own interests and the requirements for certain types of agreements. However, lawyers note: the wider the range of interests (individual, group), which are directly or indirectly affected by the contract, the more important should be the degree of legal regulation. Therefore, when it comes to the interests of the state, the legislator should not neglect the ability to imperatively determine the requirements to be met by the parties in technology transfer and which provide for the implementation of additional incentives for the introduction of domestic technologies into circulation, their practical application in production.