Theoretical foundations of technology transfer

Summary

This study analyzes the phenomenon of technology transfer from a doctrinal and technical-legal point of view. To achieve this, the process is characterized, from the determination of the definitions, their classifications and phases, exposing the doctrinal positions that justify such assertions, to the analysis of the legal nature, elements, of the technology transfer contract, such as gender, and the exploration of the contracts most used in legal trafficking, to materialize technology transfers, as species of that. It concludes with the exposition of the doctrinal positions to which the authors join.

Introduction

The increasing interdependence of world markets, the rise in the cost required for research activities, the undeniable need to have access to technical advances and innovations and the strengthening of the phenomenon of globalization; It has determined that, at present, industrial development cannot be conceived without the development of a technological flow, seen as the transfer of knowledge and equipment.

The process of technology transfer as transmission, acquisition or exchange of technologies, is presented in the current global context, as an affordable way to access the dizzying advance of science and technology.

From the point of view of organizations, technology constitutes one of the fundamental pillars on which its profitability, growth and competitiveness rests, consequently becoming an essential factor for its conservation and development. The most important industrial companies in the world owe their origin and survival to the correct application of technology, the development of new products and the improvement of manufacturing processes. The technology is contained in each activity that generates the company's goods and services and enables the company to generate competitiveness.

The globalization of the economy is another factor that, with its characteristics of complexity and uncertainty, increases the intensity of competition and places technology as a strategic weapon for companies, both in highly developed and developing countries. development, forcing them to participate in the trade in technologies; since on the one hand technological self-sufficiency is impossible and they are therefore required to acquire advanced technologies in the market, manufacturing and administration, which they need to remain competitive.

On the other hand, they are forced to participate in the market as provider of the technologies that they generate by themselves, through the process of technological innovation, from which inventions, industrial models and drawings, utility models, trademarks and others are obtained. modalities that make up Industrial Property rights, and which are both intangible assets that can be commercialized through the transfer of technologies.

This progressive importance and development has motivated this study, which aims to analyze the phenomenon of technology transfer from a doctrinal and technical-legal point of view.

Development

1. Definition and classification of technology

When entering the theoretical universe that surrounds technology, the first thing one encounters is a diversity of criteria, which begin at a point of convergence: technology is knowledge in a general sense; the break occurs when defining the species, which is given by the multifactorial nature that knowledge possesses.

There are multiple and dissimilar definitions of technology. Technology is considered a strong current by machinery, equipment, finished products, semi-finished products and even new animal and plant varieties, new strains of microorganisms.

Another trend considers the term technology both in its edge of systematized knowledge of an industrial nature and application, as well as the means by which its application is carried out, as well as the final product itself. This second current has, in turn, two variants: one that considers technology as an indissoluble union of knowledge on how to carry out something, and the means in which such knowledge is reflected and allowed to be applied; The second variant states that technology is as much one thing as the other, that is, as much knowledge as machinery and product.

Both positions are considered inconsistent: the first is because it would entail calling technology transfer a simple sale and purchase of equipment, without the transmission of knowledge of how to use them at least; the second, because defining technology as the indissoluble union of knowledge on how to carry out something, and the means where such knowledge is reflected and allowed to be applied would lead to not considering a patent licensing agreement as a technology transfer, through which An innovation is transmitted, a new know-how, but in which not even the transfer of a single screw can mediate.

The currents previously described have not been the only ones that have defined the technology. Many have been the authors who at the time have offered a concept of technology; for example, the Dictionary of the Royal Spanish Academy, in one of its meanings, defines it as: “A set of knowledge typical of a mechanical trade or industrial art”.

Other authors such as Juan M. Farina have defined it as a "socially organized, planned activity that pursues consciously chosen objectives with essentially practical characteristics."

María Carreras Maldonado explained that “Technology is a certain type of knowledge that, despite its origin, is used in the sense of transforming material elements - raw materials, Components - or symbols - data, information - into goods or services, modifying its nature or its characteristics ”.

For his part, Tirso W Sáenz considers that technology “is the set of scientific and empirical knowledge, skills, experiences and organization required to produce, distribute and use goods and services. Therefore, it includes theoretical and practical knowledge, physical means, know-how, methods, productive, managerial and organizational procedures, among others; identification and assimilation of past successes and failures, capacities and skills of human resources. ”

What can be verified in all the concepts provided is that for all authors, technology is always an activity. For this reason, the criteria provided by the World Intellectual Property Organization (WIPO), which defines technology in the following way, is considered more appropriate when defining technology:

"Technology: Means systematic knowledge for the manufacture of a product, the application of a process or the provision of a service, whether this knowledge is reflected in an invention, an industrial design, a utilitarian model or a new variety of factory, or in information or technical qualification, or in the assistance services provided by experts for the design, installation, operation or maintenance of a factory, or for the management of an industrial or commercial company or its activities. ”

To said criterion it can only be added that technology, in addition to being a set of systematized and formalized knowledge that allows the manufacture of a product, the application of a process or the provision of a service, also includes knowledge of an organizational and commercial nature, the importance of which cannot be ignored in modern industrial life; reason why it can be affirmed that the technology is nourished not only by the application of the scientific method, but also by the technological task itself and by the concrete practice itself. That is why Cuban doctrine is pronounced in a broader sense when defining technology as a set of knowledge and information typical of an activity that can be used systematically for the design, development, manufacture and marketing of products or the provision of services,including the application of techniques associated with management.

Analyzing the various elements that make up the technology, and following Quintanilla's criteria, it can be classified as follows:

1 - Depending on whether it is incorporated or not, in tangible assets.

To understand this classification, it is necessary to explain that the technology is reflected in:

Texts, technical documents, diagrams, drawings, design, computer means and all known material information supports (the so-called software).In machinery, equipment, devices, spare parts, intermediate finished products, which are known by incorporated technology (the called hardware).In people (called humanware). People are not only the creators but the quintessential carriers of the disembodied technology, either because they have created it or because it has been transmitted through various channels (in different study and information centers such as universities, technical institutes, training and special technical training, or that the knowledge of it comes from your practice and work experience).

Therefore the technology can be:

disembodied technology (simple knowledge).incorporated technology (materialized knowledge in machinery, equipment and products).

Implicit in the above-described classification is the recognition that machinery and products are not technology per se but material carriers of it.

2 - According to the importance it plays in a given industrial process:

Core technology: It is the one whose importance is vital for the correct application of the process or manufacturing of the product, it is the basic “know-how” for it. Peripheral technology: That which is neither essential nor essential for the production process. It almost always endorses the core by selling the technology in the form of a package.

3 - According to the scientific level reflected in it:

Advanced technology: It is highly developed and complex. It incorporates the latest scientific advances. It is characterized by a high density of capital invested in it, entails little use of labor power, but it must be highly qualified. Intermediate technology: It is a moderately developed technology, with relatively low capital density and high use of labor power. It is also known by the name of appropriate technology, since some conservative authors argue that it supposedly should be used by developing countries, due to its technological level and the need to employ the labor force.

4 - According to the scope of the knowledge that makes it up:

Product technology: The key to product technology lies in the knowledge you have about the composition and characteristics of the product, and not about how it is made (for example, agrochemicals and pharmaceuticals). Equipment technology: It is a variant from the previous one. It is observed that the purchase of equipment is not conceived without a transfer of technical knowledge, that is, how it is operated and worked. Process technology: The value of said technology lies in the details of the manufacturing process, Being known the product or equipment to be produced (biotechnological processes, civil construction technology). Organization technology: It is seen as that set of knowledge on how to organize and structure the production or provision of services and how to market them.

Another known classification is the one made by Tirso W Sáenz, who classifies the transfer of technology as follows:

1. Taking into account the elements to which technological knowledge is linked these may be:

Incorporated in objects (hardware): Materials, machinery, equipment. Incorporated in registers (software): databases, manual procedures. Incorporated in man (humanware): knowledge, skills. Incorporated in institutions (orgware): organizational structures and forms., interactions, business experience.

2. Depending on the phase or moment in which they are applied, the technologies can be:

Product technology: standards and specifications related to the composition, configuration, properties or mechanical design, as well as the quality and presentation requirements that a good or service must meet.Process technology: conditions, procedures, details and forms of organization necessary for combine inputs, human resources and basic means for the adequate production of a good or service; It includes process, plant, maintenance, quality control, material and energy balances manuals, among others. Distribution technology: standards, procedures and specifications on packaging, storage, as well as transportation and marketing conditions. Consumer technology: instructions on the way or process of using a good or service; this responds to product requirements,habits and traditions, among other factors.

For its part, Resolution No. 13 of March 2, 1998, of the Ministry of Science, Technology and Environment (CITMA) in its Single Annex establishes the classification of Technology recognized by Cuba, according to the degree of incorporation in:

Built-in technology. It is one that is contained in raw materials, materials, instruments, equipment, machinery, animals, substances and other tangible forms. It constitutes forms of industrial property. Disincorporated technology. They are the knowledge, information, data, formulas, elements, norms, plans, diagrams, among others, that have not been tangibly incorporated into practice. It constitutes forms of intellectual property. Main technology. It is the one that is directly linked to the process of obtaining the product or the provision of the service in question. Support technology. It is the one necessary for the completion of the production or service process, but is not directly related to obtaining it.

Technologies can also be classified according to the degree of modernity in: primitive, modern, backward and cutting-edge technology.

Other qualifiers for technology are: core, peripheral, free, secret, appropriate, luxurious, static, dynamic, village, human, social and people's.

What can be adduced from all the classifications listed is that, whether according to one criterion or another, to some specific author or another; all these types of technology are closely linked to each other and act in reciprocal actions

2. Overview of the technology transfer process.

2.1. Definition of technology transfer.

Having defined what technology is and explained its classes, it can be affirmed that the transfer of technology is then constituted by the transfer of the knowledge that is necessary for the manufacture of a product, the application of a procedure or the provision of a service, including those of an organizational and commercial nature, through the complex process through which technology flows from one entity that owns it to another that needs it.

In other words, technology transfer is the transfer of systematic knowledge for the manufacture of a product, for the application of a process or for the provision of services. According to Ángel Urquiola, technology transfer “is, above all, a process of transfer or transmission of technologies that covers the moments of acquisition, assimilation and diffusion of the same to produce a good (means of production or consumption) or provide a service that ensure better levels of economic efficiency and competitiveness, social well-being and sustainability, which influence the modernization and development of the country. "

In Cuba, technology transfer has been defined as follows: “It is the process of transmission, absorption, adaptation, diffusion, and reproduction of technology to an entity other than where it originated. In short, transferring technology means, transmitting the knowledge of those who possess them, to those who need to make use of them. ”

Technology transfer therefore occurs when one organization makes innovative technology available to another, either through a license agreement, or the creation of a joint venture, or a manufacturing agreement and / or an agreement. marketing with technical assistance. Or, when a professional exports their knowledge to another establishment, country or region.

2.2. Modalities of technology transfer.

Technology transfer fundamentally encompasses all of the following actions:

Sale or transfer under license of any form of intellectual property. Industrial property rights constitute a kind of monopoly held by the inventor and aim to stimulate research and the application of their results for the benefit of the market. Transmission of specialized technical knowledge and experiences in the form of reliability studies, plans, models, manuals, detailed formulas or specific instructions. Transmission of technological knowledge to acquire, install and use machines, materials or intermediate goods. Transmission of technological knowledge necessary for the installation, operation and operation of turnkey projects.

When the transferor and the recipient part of a technology transfer process are two companies or two research and development institutions (universities between them), it is called horizontal transfer, because both parties are at the same level of the scientific-productive chain. The vertical technology transfer on the other hand is carried out between a research and / or development institution and a productive company.

Technology transfer can also be commercial and non-commercial, depending on whether or not a commercial agreement was mediated to obtain it. If the technology being transferred is in the public domain, it is most common for it to be disseminated non-commercially, and the opposite usually occurs when the technology is in private hands.

2.3. Phases of technology transfer.

The process of transferring a technology can ideally be subdivided into several phases, depending on the interlocutors involved, as well as the technology's ownership status.

The determination of the phases, as well as their delimitation, depend largely on the point of view of the author who states them. Some authors such as Basalla exclude as phases of the transfer process both the creation of the technology in question as well as the improvements and innovations that are made after being transferred. In the present study, this doctrinal position is not considered appropriate because, even if it seems simple, there cannot be a transfer of technology without the technology itself, that is, it has been created and is capable of being transferred.

Regarding improvements and innovations, the consideration is more complicated because although it is closely linked to technology, it is not always an integral part of the transfer. More clearly, technology is not static, it is constantly evolving, therefore improvements and innovations are part of its own existence.

However, although these improvements and innovations are essential elements of technology, they cannot always be included in the technology transfer process. Whether or not it is included in the process depends, to a large extent, on the way in which it is transferred, since there are some ways in which the transfer of the transferred technology improvements constitutes an obligation of the transferor provided for in the contract (for example, the franchise agreement).

Therefore, in the authors' opinion, the phases of the technology transfer process are as follows:

The creation of technology, the selection of technology, negotiation, absorption or assimilation, adaptation, diffusion, improvements and innovations.

The creation of technology: As a precondition for any transfer, technology needs to be developed. Some authors do not include this phase in the process of technology transfer, since it is undeniable that the mere creation of a technology cannot speak of a transfer process, since it takes place when the knowledge of you own it.

However, it has been decided to include it as a phase because although it is not within the actual transfer process, it is a mandatory step for it to take place, because without an existing technology, one could not speak of transfer; for technology is the essential object of transfer. In addition, incentives for innovations and technology generation are formulated, among other elements, through regulatory conditions that govern the actual transfer of technology, in particular through the protection of intellectual property rights. Therefore, it is important to include this phase, even when it is not part of the actual transfer.

The selection of technology: It consists first of all in the identification of the technological needs of the receiving company, and later the search for the most complete information possible on the available technologies and the conditions stipulated by the provider of the same to transfer it. The transfer and exchange of information at the appropriate level are essential at this stage. For the international technology transfer, such information exchange would take place between companies, individuals, national authorities and / or research institutions of the provider and user countries.

It should be noted that this phase includes not only the observance of the need to adopt the technology but also the evaluation of the material, intellectual and environmental needs and conditions from which the assigned technology is to be applied.

Negotiation: It is the stage in which, once the technology is selected, the parties contact each other in order to settle the conditions and terms of the agreement, through which the technology will be granted.

There are many aspects that must be considered at this stage. The parties involved must be taken into account and through whom they do so (the negotiator and signatory must duly accredit their status as its representative), the object of the contract, what are the parties' obligations, guarantees offered, forms and facilities. of payment. At this stage any mistake can lead to serious future complications.

Absorption or assimilation: At this stage the transferred knowledge and equipment have already been formally acquired, but these must be thoroughly analyzed and mastered to achieve the success of the transfer. It is essential that the necessary know-how of the transferor company is really transmitted, and that it collaborate with assimilation through different channels, in addition to sending the technical documentation, with the training and formation of the receiving personnel, and through other Aid modalities and technical assistance.

The adaptation: In this phase, the necessary changes and adaptations are made so that the transferred technology can be applied with the greatest effectiveness in the receiving company, taking into account its characteristics and the conditions in which it operates, different from those of the transferring company.. During this stage, the creative work of national specialists from both the receiving company and various research and development institutions acquires a relevant role.

Reproduction: In most cases it is carried out in conjunction with the two previous stages, and it is the stage in which the receiving entity has already industrially applied a given technology (it must be tried, if possible, already adapted) and get results.

Dissemination: The acquired technology is disseminated to other companies and entities, especially to research and development centers, to which the information could be useful, with which the acquisition would have repercussions not only, for the benefit of the acquiring company but for all the economy of the receiving country. However, it should be clarified that many technology transfer contracts contain limitations regarding the subsequent dissemination of the transferred technology.

Improvements and innovations: It is considered as the last phase of the process since it takes place when the acquirer of the technology truly comes to dominate it, creates improvements and even innovations on what has been transferred.

3. The technology transfer contract

3.1. Definition of the technology transfer contract.

The contract is a source of obligations and through it, the parties can freely protect their interests and establish covenants, clauses and conditions that they consider convenient. In it, as a typical figure of the legal business, the coinciding will of subjects is revealed, that before its celebration they could support different points of view and defend opposing interests, but once the legal act is concluded, the parties have reached agreements, between an offer and an acceptance, with which the birth, modification or extinction of legal relationships incumbent on them, which can protect both credit rights, as well as others that are aimed at material or immaterial goods, such as Intellectual Property (patents, trademarks, know how, software);By the contract, the parties agree to fulfill certain obligations in their reciprocal relations.

The technology transfer contract can then be defined as the agreement of wills by virtue of which, a legal relationship is created, modified or extinguished whose purpose is the transfer of the knowledge necessary for the manufacture of a product, the application of a process or the provision of a service. It is a bilateral legal act.

3.2. Legal nature of the technology transfer contract

The technology transfer contract is an atypical contract, because according to the opinion and definitions offered by various authors such as Vicente Chulía, atypical contracts are those that, not being defined by positive legislation, are recognized by social reality, and sometimes by special laws, based on contractual freedom, and on the autonomy of the will, being governed, by its affinity with other atypical contracts, by the general principles of obligations and subsidiarily by the general principles of Law.

Another aspect that regarding its legal nature has not been established uniformly is whether it is a civil or a commercial contract. Some authors, such as Professor Vicente Chulía, argue that it is civil in nature, others like Feldstein, classify it as commercial and for others it is a complex contract, which can be mixed.

What everyone does agree on is that the technology transfer contract is complex in nature because in its constitution it brings together elements of various legal figures.

It is consensual and onerous, because there is an exchange of the service on the basis of a price, it is bilateral and synalagmatic, establishing reciprocity of obligations for the contracting parties, it is translative of use because the property of the property is not transferred, if not its enjoyment; It is commutative, since both parties assume rights and obligations, which are estimated proportionally according to the benefits of the contract.

Regarding the legal nature, it can also be pointed out that it is a figure that has what is called customary typicity: a term that is currently used in the theoretical field and that means that the characteristics of the contract are not uniformly established, but can be inferred by own practice. That is, although the characteristics and elements of the contract run by the will of the parties, there is a certain similarity in its conformation, and that similarity determines its essential characteristics. Such customary typology allows the clause common to all contractual types to be established, as evidenced in Annex No. 1.

3.3. Elements of the technology transfer contract.

Personal Items:

Assignor: is the person, natural or legal, who owns the technology and who is in a position to transfer it in exchange for the payment of a price. Buyer: is the person, natural or legal, who receives the transferred technology and agrees to pay a lump sum or royalties.

Real Elements:

The actual elements of the technology transfer contract are:

The technology that is transferred The price.

a) The technology, in correspondence with the way it is transferred (what type of contract is agreed) can be:

An industrial model. A software. A patent. Knowledge to technically assist someone. A brand or other distinctive sign. A team with its corresponding technical documentation. A know-how.

Due to the importance and novelty of this last figure in international trade, it is necessary to address its main elements.

The appearance of the expression know how in international trade on technological knowledge has created the need to clarify its concept and determine its main characteristics as a contract. This expression, ellipsis of know how to do it, is of North American origin and has circulated for some decades in the current language of international trade. The term has gained rapid and universal generalization, but its translation differs according to the countries and authors who use it. It means, within this scope, the technical expertise and practical skill necessary to easily and efficiently execute a complicated operation aimed at producing goods or offering services.

The know-how finds different names such as: secret information, undisclosed information or business secrets, all of which are used as synonyms. Regardless of the terminology used, it constitutes a set of knowledge, ideas and experiences of specialized knowledge that have not been disclosed, capable of being applied to industry and commerce due to their commercial value.

Among the advantages offered by the non-disclosure of knowledge, it can be pointed out that they do not have a legal validity period, that there is no need to request a registration or carry out any processing, nor does it require expenses to keep them current. However, there is a disadvantage and it is the fact that at some point the secret will be revealed, its content being made public and without the corresponding protection. Herein lies the vulnerability of secrecy, being a fragile right that disappears with any illegitimate act of disclosure.

b) The price:

The price is the remuneration that the technology beneficiary or acquirer is obliged to pay to the technology transferor. Its amount depends on the type of contract in question and the conditions agreed; that is; its amount is subordinated to the result of the activity in which the good or right that gives content to the contract is used; Implicit is a kind of community of interest between the company that grants the use of the patent or know-how; and the one that uses them using its financial capacity and its business organization. This category includes the royalty.

The royalty (royalty): It is a periodic payment (fixed or variable) (generally monthly) that the acquirer of the technology makes to the transferor of the same. It consists of successive payments whose amount will be determined taking into account the economic results from the use of technology. Different calculation bases are used: Production volume: The periodic amount to be paid is set taking into account the number of units of products manufactured or by its unit of measurement, such as: volume or weight. Costs: It can also be set by the cost of production.

Formal elements:

The form constitutes the way of being of the legal business; the way to perform. The formal elements must be considered as a natural element of any legal relationship and refer to a specific and determined medium, which the law or the will of individuals impose to externalize the contractual will.

The technology transfer contract is a very recent and novel figure in international trade. This situation, together with the diversity of its object, has made it difficult to establish a uniform theory regarding its definition, legal nature and elements.

It is a contract that lacks, in most countries, specific and unique legislation that regulates it. Therefore, the formalities of its constitution are not specifically established. What arises from the practice and application of the general principles of obligations and contracts is that, for legal certainty for the parties, a written form is required.

Regarding the publicity of said contracts in few countries, such as Argentina, Brazil, Spain and Mexico, the creation of registers for the registration of technology transfers that take place has been arranged. In many others nothing has been legislated. In the specific case of Cuba, there is no registry that lists the technologies that have been transferred. In the case of licensing contracts, in some countries, what is entered is the intangible asset that is the subject of the license, which does not provide the necessary information to determine if that registered license has been transferred to third parties.

3.4. Main technology transfer contracts.

The contracts that are generally recognized as technology transfer mechanisms are:

Patent licensing contracts. Know-how transmission contracts. Software license contracts. Service and technical assistance contracts. Machinery and equipment supply contracts with their corresponding technical documentation. Foreign investment contracts in which technology is provided.. Technical-industrial cooperation agreements. Franchise contracts. Complete plant contracts (mainly the "turnkey" modality).

In practice, these various figures appear closely linked, to the point that it is difficult to conceive, for example, a license contract without know-how, although the reverse possibility is frequent.

1- Patent license agreement:

The patent license agreement can be defined as the one through which the owner of the patent, without transferring it, grants another person authorization to exercise all or parts of the powers of the patent, in a time and territory determined, in exchange for remuneration. In the license, the licensor (patent holder) only grants the licensee (or licensee) its use. It is not essential that such use be granted exclusively.

Once the contract is finished, the beneficiary will have to return all the plans, documentary elements and tools that he has received, in the state in which they are, without keeping reproductions of them. After the contract is concluded, the licensee cannot continue using the patent; but it cannot be ignored the right to carry out those businesses that have not yet concluded at the expiration of the contract. However, it may happen that the licensee, upon seeing the expiration date of the contract approaching, brings the production to a large volume to store it and thus postpone the termination of the contract. In that case, if this intention is proven, it will be verified that his behavior is abusive. However, it is difficult to prove such intention of the beneficiary.That is why it is recommended that express and clear stipulations be agreed in the contract about what should be done after the contract expires.

2- Contracts for the transfer of know-how.

As for its definition, the know-how contract is that agreement by which one entity provides another with a set of technical, non-proprietary, confidential and valuable knowledge in exchange for an economic consideration. The purpose of this contract is the delivery (in the form of technical documentation attached to the contract) of knowledge that would improve the production of the receiving company, making it more competitive in the market.

In other words, it is the contract by which one party undertakes to supply the other with the information and advice for the application of the technological knowledge, formulas, expertise, and special technical skills necessary to obtain a product or service achieved as a result of a process. study, research and experience.

By virtue of the know-how, the beneficiary is empowered to use all these elements during the term of the contract; but it is forbidden to reveal the secret to third parties. For this reason, in the contracts in question, the obligation to keep secrecy on the part of the recipient of the know-how becomes particularly important.

The industrial secret consists of industrial techniques or procedures discovered or created by a company, which do not have sufficient entity to be protected by an invention, model or design patent, but which allow said company to achieve a certain quality, lower costs or print to your products special features.

Concerning the nature of the industrial secret, a contemporary doctrinal current has developed that is considered as a legally considered good, of course an immaterial good. However, there are other authors such as Laquis who consider the opinion of those who deny that the company that has unpatented technical knowledge owns it to be correct. This opinion is based on the fact that as long as that technical knowledge is not patented as an industrial right and while the legal system has not instituted it as such, it lacks such consideration.

However, in the present study the position that establishes that the technical knowledge that is available and which has not been patented, although not a subjective right, does constitute a factual situation, on which they can be considered more accurate deal with dissimilar contractual legal relationships established by the parties. It is for this reason that it is vital in contracts to establish clauses that expressly impose on the alleged parties the obligation to abstain from the appropriation or disclosure of knowledge without the authorization of its owner, since the law lacks mechanisms to protect it.

However, it should be clarified that the industrial secret is not an analogous synonym of know-how, but the former is a category that is included in the latter, since the industrial secret is always know-how, but the know-how does not necessarily have to be always secret.

Another issue that allows them to be distinguished is that the concept of know-how cannot be reduced to the simple transmission of industrial secrecy, since know-how, among other benefits, includes the transmission of advice and directives that lead to the correct application of the described procedure or technique. in the industrial secret. As Farina correctly points out, the information of the industrial secret is fulfilled in a single act where knowledge about something confidential is transmitted, while the know-how implies a continuous stream of information, advice and advice that allow the correct applicability of the industrial secret.

There is no doubt the growing economic importance that the transmission of non-patented technical information is taking, but unlike patents, for which there are official registration bodies that provide objectivity and legal certainty, the know-how lacks specific legislative protection, since be it national or international. It is evolving, like technology itself, therefore adding the risk of its volatility. All this leads to the details of the guarantees, indemnities, arbitration, claims, or exclusivity in the structure of these contracts.

3- Software license agreements:

It is the contract based on the existence of a property right on a software program that is retained by the provider, while authorizing its use. It includes the use of use and delivery to the purchaser of the computer program in question. They always include the transmission of the program stored on a material medium (magnetic medium) and the delivery of the corresponding technical documentation that the user needs to use it.

4- Service and technical assistance contracts:

It can be defined as that agreement by means of which a party (generally a company with experience in the sector in question) agrees to assist another, in aspects related to the production and provision of services, in exchange for a consideration determined. The assistance you are committed to providing includes both the knowledge and experience and the collaboration of highly specialized professionals. In general, the company or person assisting assumes both an obligation to do and a result. These contracts can be observed both independently and linked to other transfer contracts.

In general, the assisting company is obliged to the assisted company to provide it with the knowledge and experience it has regarding an industrial process: quality standards, recommendations on the acquisition of machinery, tools, raw materials and other elements, working methods and control. So far it does not differ much from the know-how contract, but in technical assistance the distinctive and fundamental element is that the assistant company is also obliged by specialized people to cooperate technically, advising the other party in the entire industrial process in a way that permanent or periodic, to train trained personnel, carry out experimentations and tests, that is, you must provide an intellectual activity on the part of the person providing the assistance, translated into instruction, warning, indication and teaching.

Within this type of contract, a modality whose essential characteristic is that the assistance is always provided by an entity or research center can be distinguished, thus the following can be identified:

4.1-Service contracts and technical assistance from research centers to the industry.

The relations of universities and research and development centers with industry are mainly reflected in the signing of various contracts, among which are:

The Expert Consultation: The Expertise Contract: Various Service and Technical Assistance Contracts. Research Results Transfer Contracts.

It may also happen that the university or research center has started the research and invites a company to join and finance it or that it is the one that requests, by means of writings with precise technical stipulations, the execution of the research of their interest.

The transfer of said results must be advised by a university technology transfer center or office and the corresponding contracts must include some specific clauses such as the stipulation of the right of the researchers who participated in the achievement of the technical solution to publish the results of the same in books, theses, presentations, as long as the commercial interests of the other party are not affected. The inclusion of a clause authorizing the supervision by researchers of technical standards to be used as a means of ensuring quality is also considered important.

5- Contracts for supplies of machinery and equipment with their corresponding technical documentation.

The contract for the supply of machinery and equipment for it to be considered as a technology transfer contract is essential that together with the machinery or equipment the technical knowledge necessary for its operation is transmitted and that it does not form part of the normal knowledge of a specialist of the branch in question.

6- Foreign investment contracts in which technology is provided.

The technological aspect will always occupy an important place within the issues to be defined in these agreements, where the fundamental technological contribution is generally made by the foreign investor. The technological flow, within the foreign investment, is materialized within a global agreement of constitution of mixed company or international economic association through the conjugation of other simpler technology transfer contracts (from licenses and technical assistance, to the session of production lines) that are derived from it.

7- Technical-industrial cooperation agreements.

The technical-industrial cooperation agreements are inserted within the so-called international cooperation, a more comprehensive phenomenon, which essentially consists of various forms of collaboration for trade and development, especially between first and third world countries.

The agreements are financial-industrial agreements through which various technological modalities (especially complete plants and technological packages) are transmitted from highly industrialized countries to others that are not so industrialized, in order to promote their development and satisfy, mainly their internal needs.

8- Franchise Contracts.

The franchise contract does not yet have a unique and uniform definition in the doctrinal field, mainly due to the novelty of this legal figure, whose emergence, considered by various authors, can be located in 1929.

There have been multiple definitions of the franchise agreement have been provided. In essence the franchise "is the contract by means of which one party allows the other the identical reproduction of his business, (or a part of it) on the basis of the use of the intellectual property rights of which he is the owner, of the technical assistance and constant supervision, in exchange for a financial benefit. ”

Franchises are classified into:

Industrial (or production) franchise: one in which the franchisor provides the means (technical knowledge and supplies) for the franchisee with his industrial plant to carry out all or part of the process of production of goods and then market these. “It is the one where the franchisor, in addition to being the owner of the brand, manufactures the products that it markets in its franchised establishments. Here the franchising company is the one that manufactures the products and is also the owner of the brand, the know-how for which it grants franchises so that the franchisee produces the products. ”Service franchise: it is when the franchisee company assumes the provision of a service identically to its counterpart. It covers sectors such as hotels, restaurants, gas stations, workshops and vehicle rental.Distribution franchise: It is reputed as the original franchise. It is the one through which the granting company supplies (sells) the products (of relevant brands almost always) so that the franchised company commercializes them at retail, reaching the end user and obtaining profits with the difference of the final sale price.

The essential requirements of the contract are:

The use of trademarks and other common distinctive signs and uniform presentation of the places of sale or provision of services. Communication by the franchisor to the franchisee of valuable knowledge (coming from patents or know-how) that allows not only a possible competitive advantage but equality in its activities with the franchisor. The provision of help and continuous technical services to the franchisee in technical or commercial matters during the term of the agreement. The regular and stable supply to the franchisee of those elements (finished products, raw materials, concentrates) necessary for the effective realization of the business.

9- Complete Plant Contracts, (Turnkey).

Defining the turnkey contract, it can be said that it is the one through which the seller or supplier undertakes on a certain date or term to deliver, as a whole, the factory or facility that he has previously projected, in exchange for a consideration for this reason and for the other collateral services agreed upon. This includes the delivery of the equipment, machinery, parts and pieces that make up a factory plant or installation, as well as the carrying out or subcontracting of its assembly and other forms of technical assistance, as well as the transmission of necessary technological knowledge that presupposes the granting of licenses. corresponding. In turnkey contracts, the emphasis must be placed on the overall responsibility assumed by the contractor towards the client.

In certain cases, it is also possible in the contract the existence of other obligations subsequent to the execution of the work, such as the training of personnel and technical assistance.

With the aforementioned method, the traditional tripartite relationship between client (contractor), engineer and contractor disappears, to be replaced by a single client-contractor relationship, in which the latter, along with its traditional functions, assumes the conception of the project.

Conclusions

After analyzing the arguments so far exposed, it is possible to affirm that:

Technology transfer is constituted by the transfer of the knowledge that is necessary for the manufacture of a product, the application of a process or the provision of a service, including those of an organizational and commercial nature, through a complex process through which Technology flows from one entity that owns it to another that needs it. The phases that make up this process are: The creation of technology, the selection of technology, negotiation, absorption or assimilation, adaptation, diffusion, and improvements and innovations. Contracts by which the transfer of technology can materialize are: Patent license contracts, know-how transmission contracts, software license contracts, service and technical assistance contracts,machinery and equipment supply contracts with their corresponding technical documentation, foreign investment contracts in which technology is provided, technical-industrial cooperation agreements, franchise contracts, complete plant contracts (mainly the "turnkey" modality).

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