Legal regulation in the field of intellectual property as a factor in the growth or inhibition of the development of technological entrepreneurship

Akhmadova Maryam Abdurakhmanovna ORCID: 0000-0003-1423-7044 PhD in Law Lecturer; Department of Business and Corporate Law; O.E. Kutafin Moscow State Law University (MGUA) Head of the Legal Support Department; GBU 'Small Business of Moscow' 14/4 Tatyanin Park str., Moscow, 119618, Russia 4ernijkvadrat95@gmail.com Other publications by this author

Introduction

The subject of research in this article is the improvement of the legal regulation of intellectual property in order to ensure breakthrough scientific and technological development by stimulating the development of technological entrepreneurship in the context of the transition of the Russian economy to an innovative development path.

In a changing world, access to critical technologies has become one of the key aspects of ensuring state security and overcoming the negative consequences of "the cumulative impact of current transformational processes and the expansion of anti-Russian sanctions" ^[12] on the domestic economy. In these conditions, the strategic task for the state was, firstly, to take emergency measures "to adapt business to the new difficult conditions of entrepreneurial activity" ^[2], and, secondly, the formation of an innovative economy, where the key driver of achieving the task is technological entrepreneurship, which is understood as investing financial, intellectual and human resources. investment of resources in the creation of assets based on the latest achievements in the field of scientific and technological knowledge, in order to increase the efficiency of enterprises ^[11].

Technological entrepreneurship, which as of 2021 accounts for 35% of the world's gross domestic product (hereinafter referred to as GDP) ^[10], is rightly proposed in legal doctrine to be considered as a natural step in the evolutionary development of the enterprise economy, associated with scientific and technological achievements that change the very idea of the production process – labor, land, capital, etc. information as a means of production is being replaced by technology ^[5]. At the same time, the essence of technological entrepreneurship is to create a complete life cycle of an innovative product, which begins with the formation of an idea and continues with the planning and development of the product up to the registration of intellectual property rights and successful commercialization on the market.

Stimulating the development of such an important sector of the economy as technological entrepreneurship in the country is not possible in isolation from improving the regulatory framework, since the results of human creative activity, which have competitive advantages in the market and therefore need legal protection, become an integral part of the innovation process. Protected innovations include intellectual property, called by experts the "new oil" in the 21st century, whose influence on the formation of GDP is rapidly increasing, while exceeding the growth rate of "material" markets by an average of more than 10% ^[7]. Thus, V.N. Laptev noted on the sidelines of the XII St. Petersburg International Legal Forum that the share of intellectual property in the global economy now stands at 15% and in the context of the transition to the digital economy, where the vast majority of all information technologies are products of copyright, related rights, production secrets (know-how) and complex intellectual property objects. the share of the latter in global GDP will approach 30% by 2030 (Section "Intellectual Property Law in the 21st Century" at the XII St. Petersburg International Legal Forum from June 27 to 28, 2024 // https://legalforum.info/programme/business-programme/5411 / (date of access: 08/10/2024).

In this article, we will focus in more detail on the issues of improving the legal regulation of intellectual property at the national and regional levels, which acts in connection with the above-mentioned strategic resource of the state and a possible stimulating way to overcome the crisis ^[7]. Using this potential, of course, requires optimal legal regulation designed to "create" business interest in increasing its knowledge intensity while taking into account new political and economic realities. For this reason, the subject of this article is of obvious interest in modern legal doctrine. In this format, the theoretical basis of the research was the works of such specialists as I.A. Gemini ^[1], K.B. Leontiev ^[18], S.I. Krupko ^[13] and others. At the same time, the works of V.I. Eremenko ^{[15, 19]}, G. P. Ivlieva ^{[4, 14]} on the prospects for the development of the Eurasian patent system, I.A. Bliznet ^[18], D.A. Ivanov ^[17], I.N. Samoilov ^[16] on problems in lending by banks are also touched upon at various stages. a pledge of exclusive intellectual property rights.

Methodology

The methodological basis of the research was the dialectical method, which substantiates the interdependence of all social processes, including in the field of legal regulation of intellectual property. Statistical and historical methods were used to analyze the dynamics of the phenomena. To obtain the final conclusions, the author used such general scientific methods of formal logic as induction, deduction, analysis, synthesis.

So, to begin with, we note that the state's current goal of ensuring breakthrough scientific and technological development through the effective and full use of the nation's existing scientific, technical and intellectual potential is reflected in a number of strategic planning documents. In this context, it is necessary to note, first of all, Decree of the President of the Russian Federation dated 02/28/2024 No. 145 "On the Strategy of Scientific and Technological Development of the Russian Federation" (Decree of the President of the Russian Federation dated 02/28/2024 No. 145 // Collection of Legislation of the Russian Federation, 2024, No. 10, art. 1373) (hereinafter referred to as the Strategy), which sets goals, objectives, directions and priorities of innovative development of the country's economy, as well as ways to achieve such a technological breakthrough.

In particular, according to paragraph 28 of the Strategy, in order to achieve this goal, it is necessary, among other things, to create conditions for the development of high-tech entrepreneurship by creating an effective system of interaction between science, technology and production, where the key role is given to reforming the methodology of the technology transfer system and intellectual property management, its legal protection and protection.

The main documents closely related to the Strategy in the field under study also include the Decree of the Government of the Russian Federation dated 08/03/2020 No. 2027-r "On Approval of the action plan (Roadmap) for the implementation of the mechanism for managing systemic changes in the legal regulation of entrepreneurial activity "Transformation of the business climate" "Intellectual Property" (Decree of the Government of the Russian Federation dated 08/03/2020 No. 2027-r // Collection of Legislation of the Russian Federation, 2020, No. 33, art. 5412) (hereinafter referred to as Decree No. 2027–r), which was significantly amended in 2022 (Decree of the Government of the Russian Federation dated 04/08/2022 No. 813-r "On Amendments to the Decree of the Government of the Russian Federation dated 08/08/2020 No. 2027-p" // Collection of Legislation of the Russian Federation, 2022, No. 16, Article 2734), aimed at detailing the goals of state policy in the field of intellectual property in the context of sanctions and new political conditions. These include ensuring sustainable GDP growth, national security, and technological independence in areas important to the state and society through the development of intellectual property. Achieving these goals should help strengthen the country's economic sovereignty and increase the resilience of the domestic economy to external challenges. These include increasing the competitiveness of the economy of the Russian Federation and ensuring GDP growth, ensuring national security, and technological independence in areas important to the state and society through the development of intellectual property.

In order to achieve the above-mentioned goals, the said order outlines the need to implement such tasks as stimulating the creation and legal protection of intellectual property results and means of individualization in demand by the business community and the state, as well as facilitating the involvement in civil circulation and commercialization of intellectual property results ^[6].

One of the most striking solutions implemented as part of the implementation of the points of the roadmap approved by Decree No. 2027-r is considered to be the introduction of a regime of reduced taxation on profits from the turnover of intellectual property rights - the "patent box". The Federal Service for Intellectual Property has been trying to implement this initiative since 2016 ^[4]. Thus, according to the provisions of Federal Law No. 305-FZ dated 07/02/2021 "On Amendments to Parts One and Two of the Tax Code of the Russian Federation and Certain Legislative Acts of the Russian Federation" (Federal Law No. 305-FZ dated 07/02/2021 // Sobranie Zakonodatelstva Rossiyskoy Federatsii, 2021, No. 27 (Part I), art. 5133) for The subjects of the Russian Federation have established the possibility to independently determine a reduced income tax rate on income from the disposal of intellectual property rights under a license agreement for all organizations that are tax residents of the Russian Federation and operate in innovative sectors of the economy, including in the field of information technology.

In the context of the implementation of the named roadmap, it is noteworthy that Rospatent conducted a legal experiment on integrated expert and analytical support for developments from the planning stage to the release of innovative products, which was implemented as such in accordance with the Decree of the Government of the Russian Federation dated 11/08/2022 No. 3364-r "On conducting an experiment on expert and analytical support for scientific and technical projects, in particular including advanced identification of patentable solutions with high commercialization potential for the creation of high-tech products" (Decree of the Government of the Russian Federation dated 11/08/2022 No. 3364-r // Collection of Legislation of the Russian Federation, 2022, No. 46, art. 8071).

As part of this experiment, Rospatent provided technological and business consulting for two world-class scientific and educational center projects from Samara National Research University named after Academician S.P. Korolev (REC "Engineering of the Future") and Perm National Research Polytechnic University (REC "Rational Subsoil Use") (Rospatent will conduct an experiment on expert and analytical support a small-size gas turbine installation project. URL: https://rospatent.gov.ru/ru/news/rospatent-03022023 (accessed 08/10/2024). Upon completion of the project, its results were recognized as successful, meeting the requirements of the Concept of Technological Development for the period up to 2030 (approved by Decree of the Government of the Russian Federation dated 05/20/2023 No. 1315-r // Collection of Legislation of the Russian Federation, 2023, No. 22, art. 3964), and therefore have great potential for scaling to all regions. Thus, the head of Rospatent, Yuri Zubov, noted that in these scientific and technical projects, patent information analysis tools were used, which make it possible to determine the relevance of developments in the future, and therefore the return on investment in the future (Rospatent presented the results of an experiment to bring high-tech products to the market. URL: https://rospatent.gov.ru/ru/news/zasedanie-os-31102023 (accessed 08/10/2024).

One of the significant drawbacks of the current regulation of the intellectual property sphere, experts note the low percentage of commercialization of legally protected intellectual property objects. Thus, less than 10% of their total number are involved in civil turnover (Section "Legal support of scientific and technological sovereignty of Russia" within the framework of the XI St. Petersburg International Legal Forum from May 11 to 13, 2023 // https://legalforum.info/programme/business-programme/2728 / (date of access: 08/10/2024).

At the same time, science, which produces about 50% of applications for inventions, actively "goes" to the protection of intellectual property. For this reason, Professor I.A. Bliznet notes that the state, first of all, needs to take measures aimed at forming mechanisms for the timely and rapid introduction of the most relevant and promising inventions, utility models, industrial designs, trademarks and geographical indications, as well as ensuring the effective transfer of scientific and technological achievements to the production sector ^[1]. Here we see a problem in the work, first of all, of technology transfer centers (hereinafter referred to as CTTS), which boils down to the need to rework the methodological framework for technology transfer, which Rospatent is working on jointly with the National Association for Technology Transfer (NATT) and the Ministry of Science and Higher Education of the Russian Federation.

In the context of the measures proposed by the regulator to stimulate the interest of business entities in the registration, protection and commercialization of intellectual property results, there is also a pilot for lending secured by intellectual property rights. This initiative, which has been on the agenda of relevant government agencies in recent years, aimed at turning intellectual property objects into a real economic asset, in our opinion, will contribute to the development of the intellectual property rights market, however, there are opposing positions on this issue in the legal doctrine. Thus, S. V. Medvedev notes that the design of the pledge of exclusive rights is not without a significant drawback, expressed in the properties of restricting (in fact blocking) the turnover of intellectual property rights, including in terms of their disposal, for the pledge period ^[19]. The thesis of blocking exclusive rights, in our opinion, does not stand up to criticism, since, as a general rule, an economic entity can use the pledged object of exclusive right during the term of the pledge agreement, including disposing of it through the conclusion of license agreements.

Recognizing the advantages of introducing this financial instrument into the field of intellectual property, it is necessary to identify the reasons preventing this. Among those in the legal doctrine are, firstly, economic ones related to the shortcomings of the system for assessing the value of intellectual property results, and secondly, organizational ones due to the imperfection of financial and accounting mechanisms for supporting these relations and the lack of appropriate infrastructure. And, finally, thirdly, the shortcomings of the legal regulation of these legal relations, characterized by gaps and contradictions in the current legislation ^[9], for example, the lack of a legal mechanism that effectively forecloses on exclusive rights in case of default by the debtor, as well as the problems of territorial and temporal limitations of the collateral ^[16].

In addition, the legal regulation of the legal relations under study has paradoxes, expressed, in particular, in the complication of requirements by the legislator, which makes the pledge of intellectual rights an even less attractive option for securing obligations. Thus, the requirements for state registration have been extended to computer programs and databases, that is, objects of copyright and related rights, which are generally protected without such registration. At the same time, non-compliance with the requirement for state registration of the pledge of an exclusive right by virtue of paragraph 6 of Article 1232 of the Civil Code of the Russian Federation, the pledge of such a right is considered to have failed ^[17].

Rospatent's achievements in overcoming the factors hindering the implementation of the financial instrument in question include the formation, together with the Ministry of Finance of Russia and the Ministry of Economic Development of Russia, of changes in federal accounting standards designed to provide banks and investors with a methodology for assessing the value of intellectual property and its share in the assets of business entities, as well as to predict the volume of potential transactions in the industry ^[8].

At the same time, we note that the measures taken by the regulator in recent years certainly contribute to an increase in the number of registered liens of exclusive rights. However, there is no need to talk about the widespread demand for this institution, since, as statistics show, only 170 liens of exclusive rights were registered in 2023 (for comparison, 145 liens were issued in 2022) (Annual Report of the Federal Service for Intellectual Property for 2023 // https://rospatent.gov.ru/content/uploadfiles/otchet-2023-ru.pdf (date of request: 08/10/2024). In turn, the situation in foreign countries is fundamentally different, for example, the volume of loans secured by intellectual property rights in China in 2017 amounted to 10.5 billion dollars (Loans secured by intellectual property // https://rospatent.gov.ru/ru/news/kredity-pod-zalog-is-chast-3 (date of request: 08/10/2024).

In the context of identifying the problems hindering the development of intellectual property in Russia, there is also the need for entrepreneurs to maintain the regime of legal protection of intellectual property results on the territory of various states, since relevant supranational institutions have not been developed within the framework of Russia's integration associations with friendly countries (e.g. BRICS, EurAsEC). As a result, our entrepreneurs are forced to perform the necessary formal actions, for example, to regularly pay the fee for maintaining the patent in force, separately in each state, including in the countries of the former USSR, which is associated with high resource and time costs. In the context of sanctions restrictions, this issue is becoming particularly relevant, since the 14th package of restrictive measures adopted by the European Union this summer affects intellectual property. Thus, the European Patent Office is prohibited from accepting applications for intellectual property registration from Russian citizens, individuals and legal entities registered and residing in Russia, and the possibility of extending, maintaining, and disposing of intellectual property rights in the European Union is limited (Rospatent: Clarifications on European Restrictive Measures regarding Intellectual Property // https://rospatent.gov.ru/ru/news/rospatent-08072024 # (date accessed: 08/10/2024).

In this regard, expert circles are actively discussing proposals aimed at reducing business costs due to the territorial nature of intellectual property rights through the development of regional systems for providing legal protection to such objects ^[13]. First of all, we are talking about the development of the Eurasian patent system by expanding the number of regional intellectual property objects, as well as the territorial expansion of the organization and the development of dispute resolution mechanisms. This proposal was reflected as one of the main directions in the Development Program of the Eurasian Patent Organization for 2023-2028, approved at the forty-second meeting of the Administrative Council of the Eurasian Patent Organization on May 18, 2023 (Development Program of the Eurasian Patent Organization for 2023-2028 // https://www.eapo.org/wp-content/uploads/2023/06/pr_2023_2028.pdf (date of request: 08/15/2024).

The Eurasian system of legal protection of inventions and industrial designs has already proved its stability and relevance on the part of users ^[14]. Therefore, the expansion of the range of intellectual property protected under the Eurasian patent system has great potential and is a measure in great demand in the business sector, especially in terms of registration and protection of a single trademark. At the same time, it should be noted that its implementation is an extremely difficult task, since there will be opposition from the national patent offices of the EurAsEC member countries for quite economic reasons - the largest income for the development of these departments is income from trademark registration ^[15].

Conclusion

The analysis makes it possible to conclude that the domestic legislation in the field of intellectual property is not without drawbacks that hinder the development and active implementation of innovations. We have established that in conditions of ensuring technological sovereignty and building an innovative economy, one of the strategic tasks of the state is to stimulate business to create, protect and introduce intellectual property objects into civil circulation. In order to mitigate legal risks for high-tech businesses, relevant government authorities are implementing appropriate measures, expressed in conducting legal experiments and pilots in order to test new or significantly improved mechanisms to stimulate the commercialization of intellectual property results. We have reviewed the results of some of these experiments, but it seems that such a "patchwork" nature in terms of legal regulation is not applicable to the subject of the study. Of course, this process should also be reflected in the modernization of the regulatory framework, the prerequisites for this are, among other things, the results of the testing of a legal experiment on comprehensive expert and analytical support for developments from the planning stage to the release of innovative products, etc.

In addition, the common political and economic goals facing the EurAsEC member countries determine the partners' search for ways to unify regulation of the area under study, therefore, in our opinion, the idea of developing the Eurasian patent system discussed in recent years by expanding the number of regional intellectual property objects has great potential.