Technology transfer as a value-enhancing development factor; roles, new regulatory previsions, and contractual protections

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Abstract Technology transfer allows even small and medium-sized companies to access the latest technological discoveries made through applied research, thus increasing their competitive value. However, the transfer, sharing or acquisition of technologies requires adequate planning and appropriate legal safeguards. The purpose of this article is to provide an initial general […]

Abstract

Technology transfer allows even small and medium-sized companies to access the latest technological discoveries made through applied research, thus increasing their competitive value. However, the transfer, sharing or acquisition of technologies requires adequate planning and appropriate legal safeguards.

The purpose of this article is to provide an initial general overview of the issues to be addressed, which will then be discussed separately and in greater detail.

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Technological development plays a fundamental role in the growth of companies and the development of Nations. In pursuit of this objective, and to help companies maintain or increase their market shares, the National Recovery and Resilience Plan (PNRR) establishes a pathway to facilitate scientific research and enhance technology transfer.

In fact, research and technological development have high costs in terms of invested resources and organisational capacity: technology transfer is therefore the best way to economically optimise the resources utilised.

What does technology transfer mean?

Technology transfer can be understood as the various activities carried out for the development, evaluation, protection, marketing, and sale of technologies.

The technology transfer process includes:

  1. the development of new technologies
  2. the determination of their industrial applications
  3. the protection of new technologies with industrial property (patents, models) and intellectual property (trademarks, copyright) protection tools
  4. the transfer of the technology via the sale of the rights of the use to existing companies, or the creation of new companies based on the same
  5. the conceptualisation of an effective marketing strategy.

Who are the parties involved?

While the development of new technologies is often entrusted to public entities (universities, research institutes, or polytechnic universities), private entities are increasingly playing various roles.

More specifically

  • Financiers, or entities that come into play as early as the project’s design phase.

The Guidelines for Mission 4 initiatives: Education and Research Component 2: From research to enterprise in the National Recovery and Resilience Plan (PNRR) (Ministry of Education, University and Research Decree no. 1141 of 7/10/2021) identify the roles that private entities can play through the establishment of Extended Partnerships, National Centres, Innovation Ecosystems, Research Infrastructures, and Public-Private Partnerships.

  • Entities with adequate skills that develop technological innovation projects for themselves or on behalf of others.
  • Private entities that “acquire” or market technologies developed by others.

The protection of new technologies

From an industrial and intellectual property standpoint, the protection of the technologies developed is fundamental for protecting the investment made and the economic exploitation of the results, while at the same time assuring buyers that they will have adequately protected technologies at their disposal that will ensure a competitive advantage for a certain period of time.

The entire research and development phase must be adequately protected by confidentiality agreements and internal procedures designed to ensure secrecy.

In order to safeguard the results of the research and development process, it is imperative to evaluate which of the protection tools offered by the legal system is most appropriate, and to promptly take action to obtain the relative property rights.

The transfer of the technology

The technology transfer phase basically takes place according to two contractual schemes

The decision depends on choices of a commercial nature and the negotiations held between the parties concerned; in both cases, however, the parties will naturally have to stipulate a contract, which must include a number of fundamental elements.

Afterwards, the commercial supply chain must be fully regulated, including, by way of example, the distribution, import, and delivery contracts, and the relative marketing methods.

The overlap with specific or sector-based regulations

During the technology transfer phase, the entities must also evaluate specific sector-based regulations. Consider, for example, the medical devices that are receiving huge investments at this particular moment in history and are the focus of a technological development effort unlike anything ever seen before, but are the subject of specific legislation, namely Reg. EU 2017/745, which, in addition to regulating the technical and safety aspects, also fully regulates the roles and obligations of the various entities involved in the manufacture and marketing of the products themselves.

And it’s not just the sector regulations; the so-called horizontal disciplines have also changed, such as, for example, Reg. EU 2016/679 regarding the processing of personal data, and the Public Procurement Code for the procurement of goods and services for public administrations.

Each phase of the technology transfer must therefore be adequately planned and structured so that it will serve as an effective driver of business growth and competition.

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