L a desire to optimize certain innovations that have a technology is now well developed with numerous companies. The legislature has also been privileged over this development and it is now recognized several tools specifically dedicated to this phenomenon. Whether through the law on innovation and research, development of competitive clusters, developing a tax system via the dedicated status of innovative start of the research tax credit or the encouragement of investment in such structures, the concept of innovative company is now devoted even encouraged to provide a means of developing fruit Search public or private. In this context, the first legal apprehension is often done through the law of intellectual property relegating (at least temporarily) the other disciplines. While some recovery methods can overcome if we recognize these as such technology transfers by sale or license granted to third parties. In this case, it is only from the recipient of innovation to address the "vehicle" legal, appropriate to its economic exploitation. Nevertheless, in other cases, where the author of Innovation intends to participate actively in its development by the bais of a corporate structure, corporate law and its own raw devices to business law as a whole (contract engineering, taxation, distribution, employment law, etc..) must be a base thinking and management in the selection and preparation mode of operation. This global vision and setting itself up to the rank of approach will play a strategic role in the phase of appropriation of innovation (I) and will be missed at the time of optimization (II).
In schematic, there are two distinct scenarios. In the first, the business associate is intended to hold the rights over the innovation that is developed on its behalf (A) in the second, the company is automatically partner of the owner of such rights (B).
Since the emergence of a business plan based on an innovation in technology- it should integrate the protection process in a broader debate taking into account its future within its operating structure. Indeed, this innovation is by nature doomed to changes in its research and development phase, it will aim to circulate through which several heritages some may eventually be competitors requiring special attention accordingly. At this level, it is appropriate to use as part of the contractual tools unique to law firms dedicated to managing the training period to centralize at the same time and in one document all the problems inherent in the law business.
Through this, it is useful to think upstream the "contours" of the future structure while matching the latter's rights with those of its founders. Under agreements generally referred "Promises of society, the future partners will, in addition to determining the political and capitalistic society, integrate their thinking in innovation and the rights attached while considering how serene the consequences of failure project for technical reasons or human (a promise logically include legal ways of sharing rights in the presence or abandonment of one or more of the founders having rights on innovation). It will also be discussed to establish any co-ownership and the conditions of founding acts of some occasions by the company (domain name registration, trademark registration, patent applications, software development, industrial partnerships, etc. ..) to avoid further blockage. This approach should help ensure the integrity of the rights held by the future structure between the founders but also to third parties acting on behalf of the latter in establishing a contractual joint and concerted strategy. This agreement will thus provide the ideal site for establishing a policy of collective management of intellectual property rights vis-à-vis the founders themselves but also all external stakeholders (sub-contractors, co-developers, distributors, interns, etc..) subjecting each founder to appropriate discipline when they will enter into a deed with them. Once this reflection is done, the project organization will be facilitated and will continue with the rapid establishment of definitive statutes which will provide for warrants authorizing one or more founders to act for certain acts on behalf of other members and a shareholder pact.
This action will thus main interest for to hold early between the future partners orderly functioning of the project including the central issue as innovation itself and forcing it to address upstream potential conflicts between the founders. This will ensure for example the rise of contractual rights in the social heritage and to facilitate the overall conclusion of confidentiality agreements and non-competition which are known to be difficult to obtain independently.
B) companies contracting with holds the rights to innovation
In other cases, either by the will of the founders who prefer to isolate the copyright holder heritage of innovation or because of the nature of the project that provides a public research institution's original ownership of those rights, the future company will aim to hold an indirect operating on the innovation intensity, particularly in terms exclusivity will affect legal, accounting and tax on the valuation of the latter.
is particularly the case for all projects initiated by some public officials to develop the results of their "own" research. It should in this case to start thinking about the future structure of the early drafts of the project, namely upon confirmation of the record of recovery submitted to the Authority to be generally decided by the Commission
Thus the company being formed who will speak effectively in negotiating licenses with or without any option on the purchase or innovations (the assumptions of pure transfers are rare in practice). An option on license may be considered to strengthen the legal project and allow no risk of exposing the project with regard to future shareholders, partners or third parties in connection with seeking private funding (business angels, VCI, etc.. ) or public (National Competition entrepreneurship, local authorities, clusters, etc..). This type of legal instrument has the added benefit of fixing the legal aspects of future license so that the future development of the project can no longer affect the financial or legal provisions. In addition, final license is necessarily made between the public institution and a corporation existing reflection will accelerate the registration process as soon as it becomes necessary.
II - THE LAW AS A TOOL FOR OPTIMIZATION INNOVATION
In its quest for growth, innovative company began a race against time as regards access to its market. To do this, it will often resort to private investment mistake for her to have sufficient access to bank loan to fund its research and development. To anticipate this action (B), it will be as soon as possible to maximize the value of innovation (A).
A) The right of recovery as a means of innovation
Even before the integration phase of potential investors, innovative projects are often collide with the problem of capital endowment of their future society. Although it seems possible to choose a type of structure prior
Under the condition that some or co-founders hold hold Individual rights of intellectual property on innovation (patent, trademark, software, domain names, etc..), it will be conceivable to have recourse to the traditional in-kind contributions to be charged to review a book value that will be established by an auditor. The other founders may then make use of contributions in cash to give the company the cash to boot.
Calculated using methods recognized by financial practice, this initial value will influence the share capital for the benefit of the holders rights on innovation who are most often the original inventors. They will develop a political majority and more easily than the only recourse to contributions in cash (some instruments such as BSPCE will allow appropriate and in the opposite direction to rebalance the relationship between capital-related). Furthermore, this value will, in addition to an allocation of equity interest as a basis for negotiation vis-à-vis third parties interested in the project with the stipulation that they require of course that all rights are genuinely made by inmates society where the importance of proper conduct phase of appropriation of the latter (see above).
In any event, once it is made to integrating investor capital of a future society, the issue of valuation of the company subordinate cost, the share capital sold in return created and certainly the amount of premium which will be imposed.
At this crucial moment in its development, drafting the constitution and shareholders taking into account the early stages of development of the innovative firm will be an effective ally to consider the consequences heritage and political change in the capital of the company. Similarly, consideration should include the possible use of bond issues such as convertible redeemable in shares or to reduce the immediate dilution of the founders in the capital. It is obvious in this stage of design the practical difficulties of a constitutional amendment precipitated prior to the entry of investors. On the contrary, from their original version, it has been important to submit the partners / founding shareholders at a certain "discipline" through certain clauses allowing them to retain some balance in particular concerning the rules on transfer of shares to third. This will result in the possibility of establishing a statutory real strategy for recovery.
order to optimize the value of innovation, and the approach must be comprehensive and encompass all aspects of the business plan: legal, fiscal, social, financial and intellectual heritage.
© Nicolas IVALDI
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