I have prepared these concepts for consulting in Technology Management and Negotiation. The elements involved in the decision-making process for the transfer of technology in the organization are clearly defined. Technology negotiation must respond to a strategy defined and planned by the organization, in this way it is convenient to plan it at different scales and levels to generate several negotiation alternatives.
It should be taken into account that they are generalities, which are adapted to each business context, business situation, strategic and competitive position.
- TECHNOLOGY TRANSFER IN COLOMBIA
When the holder of a technological knowledge patented or protected as an industrial secret decides to transfer it, there is an economic reason, which is negotiated through the license negotiation mechanism.
It is here where the direct and indirect mechanisms of transmission or transfer of technology are determined. As direct mechanisms, the license for the use of technology and the sale of technology are mentioned, which constitute the clearest ways to transmit technical knowledge. Indirect ones include foreign investment, technical assistance, the hiring of experts, the acquisition of capital goods and equipment and the hiring of the use of a trademark, when these contracts are presented associated with quality standards.
The license is a way of transmitting technology through its lease, the sales contract is a way of transferring technology. The concept of "transfer" includes the notion of change of domain, while through the license, only knowledge is leased.
The sale of technology is a mechanism that is not as frequent as the license and is usually referred to the patented technology, where the industrial property right is disposed of.
The factors that may induce the licensor to authorize the use of technology are very varied, such as the location of the sale market, its structure, the type of product, the market segment for which the product is destined, the exchange control for the approval of licensing contracts in the host country, structure of customs duties, tariffs and price control system, tax regulations, product distribution system, guarantee of protection of intellectual rights, balance of payment of the importing country, whether the product or the technology, the existence and quality of raw materials, among others.
The process of transferring the necessary knowledge to the buyer of the license is a complex process, especially when it comes to non-proposed products or processes. When there are patents involved, the process is simplified because there is a starting point. The rest of the information that is transferred is the reason for technical meetings, visits to the licensor's plants, dispatch of experts to the licensee's facilities, etc. Even the licensor will have to carry out some pilot operations with the licensee, to train him in the correct use of the transferred technology.
In the technology license agreement, the parties must face the negotiation putting something on their part to later distribute the results. The licensor is the person who grants the license, holder of the rights, he must adopt an attitude of understanding of the local market conditions without thinking about unsustainable conditions. The licensee is the person who pays for the rights to use the patent, for his part, he must understand that he is acquiring knowledge that has already been developed at a high cost and that he must pay for its appropriation. You must know the intellectual property right that protects that knowledge and respect it, since it is the only way that it can enjoy the advantages granted by the patent system or the protection of industrial secrets.
In Colombia, it is foreseen in the Andean Declaration of Value, in numeral 56 there are royalties and license fees or royalties related to imported goods, which broadens the customs valuation base.
1.1. INSTRUMENTS OF TECHNOLOGY TRANSFER
In every company with a good technological level, there is a person or a special department, depending on the size of the company and its volume of activity, in charge of the administration not only to ensure better technology but also a way of doing business using their patents.
This has become one of the main objectives of an efficient administration. The person in charge of this area is responsible for planning, promoting, selling or acquiring new inventions, granting licenses to third parties and, in general, promoting actions aimed at achieving or maintaining the technological leadership of the company. To achieve these objectives, the formation of a qualified and multidisciplinary team is essential, in which engineers, technicians, lawyers and managers participate.
Now their task is increasingly complex because they are responsible for the preparation of maps and information graphics on patents and technology that interest the company and the negotiation of those that it wants to license and that the company does not own and is to acquire.
One of the most used techniques regarding patents is that of "cross-licensing and payments." It consists in that two companies that have patents in the same area compare their position or measure their strength in terms of inventions: the one with the better position receives money from the other company in exchange for the granting of licenses on those that it does not have. Today it is increasingly difficult to negotiate a license for an advanced invention, without owning a patent that is of interest to the other party.
From the point of view of the technology recipient, they have the need for the license to continue or begin the manufacture of a whole product and from the point of view of the technology provider they have the need to grant licenses, given the current existence of several companies of the same technological level it is not possible to pretend to save the technology; There is a market in such a way that if one company refuses to license another, it will do so, so it is not so easy for the supplier to refuse to grant a license. His main concern is not to grant it or not, but to find a way to improve his inventions before the competition, for which it is important to obtain a pecuniary benefit from the invention, that is: he seeks to maintain leadership and at the same time do business.
1.2. MAIN ASPECTS OF THE TECHNOLOGICAL NEGOTIATION
License agreements usually begin with a preamble, which is very useful in case of conflict. The preamble helps to determine the true intention and spirit that has guided each of the parties when entering into the contract. For this it is important to specify the purpose that each party has taken into account for the celebration of the act. This will express the type of technological knowledge that the licensor possesses and the needs that the licensee hopes to satisfy with them.
Next, the contracts contain the definitions of a series of terms that will be used throughout their usual wording. These definitions are intended to avoid any difficulty in the true interpretation of each of the terms, both legal and technical, that are used in the contract.
The object of the contract is its essential part. Indicates on which intellectual property the license falls; whether it is a patent, know-how or both. Secondary aspects will also be included, such as technical assistance, personnel training, provision of raw materials, trademarks, administrative and control systems.
When it comes to a license agreement on a patent, it will be stated whether it includes the associated know-how. If the contract includes a know-how license , the licensee ensures that the knowledge that is being authorized to use is duly described in the contract itself or in its annexes. On some occasions, the conclusion of preparation contracts, such as the secrecy agreement, through which the future licensee is made aware of the thematic content of the information that may later be acquired, subject to confidentiality, can be especially useful.
The license will indicate the geographic territory in which the licensee can make use of it; The place of manufacture and marketing of the products obtained will be recorded if these places are different.
The nature of the license must also be stated in the agreement; It will be indicated whether or not it is exclusive. If it is exclusive, it must clearly indicate the countries within which the licensee will enjoy these exclusivity. The meaning of exclusivity is usually defined, to avoid problems of interpretation.
The payment of a sum of money to the licensor is one of the most arduous matters to agree on in the negotiation. This payment is normally made in foreign currency and is usually expressed as a periodic percentage of sales made by the licensor. This periodic and percentage payment is called a royalty or royalty, which differs from other types of payments such as the lump sum or the basic payment at the time of entering into the contract (dow payment). The royalty can also be expressed in a fixed amount per unit sold.
Some countries have set maximum percentages for royalties in relation to the sales of the product manufactured with the licensed technology, such as Korea, between 3 and 8%, Brazil up to 5%, India between 1 and 5%.
Regarding the royalty, the calculation basis must be stated in detail. Sales tax is normally excluded and merchandise returns are deducted. Consideration should be given to the price discount that the licensee grants to its clients, as a marketing policy or for wholesale sales. The percentages that are normally stipulated are between 2% and 5% on sales, these percentages are also normally net; that is, after deducting the income taxes that affect them in the licensee's country.
One subject that is always highly debatable is that relating to the ownership of improvements to the technology that the licensee may introduce to the licensed technology. In such cases, and in order to maintain adequate control of technology, clauses of promise of sale or the granting of exclusive free licenses may be agreed for the duration of the contract.
It is in the great interest of the licensee for the licensor to grant guarantees regarding the results achieved with the licensed technology; that is, it serves what the licensor stated in the preamble.
Another aspect that should be clearly established in the contract is the one that refers to the obligation to maintain the licensed industrial property rights in force, through the timely payment of annuities when it comes to patents and trademarks.
When the licensee is empowered to grant sublicense, the licensor is normally entitled to part of the remuneration that the former will receive. Usually, this remuneration is of the order of 25% of what the licensee receives for the sublicense, a cost that is very similar to that charged in any technology purchase intermediation.
Some contracts link the license with the compulsory purchase of certain raw materials or intermediate products, a clause that is considered restrictive by most laws. However, there are cases in which, due to the lack of alternative suppliers or due to quality standards, the licensee must necessarily resort to the licensor to acquire these products.
The duration of the contract is another important problem that the licensee must be very clear about in the negotiation, in order to be able to recover its costs in a given period of time. There are laws that set a duration for license contracts and also establish some restrictions for their renewal.
It is convenient that the parties agree on the conditions that could lead to the early termination of the contract. Normally, the licensor is empowered to do so in the event of bankruptcy or insolvency of the licensee, changes in the corporate deed, internal commotion in the country of the licensee, expropriation of the latter's company and similar causes. It is also necessary to establish safeguard clauses, in case the existing conditions at the time of contracting vary substantially during the term of the contract.
The problem of the legislation applicable to the contract is resolved by submitting the conflicts to the rules and practices of international trade, delivering the resolution of the dispute to an arbitral tribunal.
Notwithstanding the different translations that the contract may have, it is necessary that the parties agree to an official translation of the contract in a certain language. Translation problems can bring some surprises in case of conflicts between the parties.
These are the aspects that are most commonly found in the different license agreements, without being unique. Each license agreement is a special matter, which must be analyzed according to its own particularities, the nature of the licensed object and the characteristics of each of the parties.
1.3. FORMS AND MECHANISMS OF TECHNOLOGICAL NEGOTIATION
It is said that all negotiation is a process through which it is possible to reconcile or reciprocally compromise opposing interests, towards common and specific purposes. It can also be defined as a field of knowledge and action whose objective is to win in the case of haggling, and to cooperate in the case of the win-win method.
However, in all of them three central elements stand out: negotiation is always a peaceful act that excludes violence as a mechanism; it is based on the good faith of the negotiating parties and assumes the intention of reaching mutually acceptable agreements for the parties.
Reality shows, however, that there are still areas of human activity that the computer has not been able to efficiently replace. One of these is the one that allows us to speak of negotiation as an art, which involves a set of intangible elements and skills that constitute the difference between being a good negotiator or not being one.
The negotiation, as defined above, may fall on any object, material or immaterial, capable of being lawfully traded, in the case of technology.
1.4. ELEMENTS OF A TECHNOLOGICAL NEGOTIATION
A good way to start a negotiation is to get there knowing fully both your own interests and those of the other party. It is also necessary to clearly determine the objectives to be achieved and thus these are several, it is convenient to make an ordered list according to their priority.
In short, negotiation is the efficient use of information and power to affect the parties involved.
1.4.1. Information
It is the most important element of a negotiation. It affects the own evaluation of reality and the decisions that according to it are adopted. When accurate information is not achieved or attempted, it is because there is a tendency to regard one's own negotiations with other people as events or limited events.
An inexperienced negotiator rarely anticipates that he will need information until he is faced with a crisis that creates a set of unpredictable, unforeseen consequences.
When the person changes their mind it is usually because they have received additional information or they have become used to what originally would have been a new or innovative idea.
Signals are also an important agent in negotiation when you know how to use and interpret them.
A good negotiator must be sensitive to the non-verbal factors in any communication. For this reason it is necessary that in the course of a negotiation, the signals are significant if they are part of the whole and indicate the direction of the movement.
1.4.2. The Power of Negotiation
It consists of the ability or ability to achieve one's own objectives and exercise control over people, events and situations. In essence, power is neither good nor bad, depending on the objectives of each individual and their ability to value what they have obtained.
In the realm of negotiation itself, power can be given in several ways, some of them can be: Forming competition: If multiple options or demands are generated for any good, its value increases. It is obvious that the more people want the product, the greater its value. This element is applicable to all types of services and goods, in the case of the producer, or of money if you are a consumer.
Here it should be noted that, generally, a negotiation involves at least two central aspects; the technical and the financier. To these can be added the legal and tax aspects and eventually, in the case of international negotiations, that of comparative legislation or international treaties, which will have repercussions on all of the above.
The foregoing justifies that a negotiation requires a multidisciplinary team that knows each negotiable component in detail and depth. If the negotiation is important, you must prepare well and dedicate time to it.
Today it is impossible to be an expert in all fields. Generally the most required kind of knowledge in most negotiations is the ability to ask intelligent questions and to know if the precise answers are being received.
The needs of each part are different. If you can make a reasonable guess about what the other's needs are, then you can predict with great certainty what will happen in any relationship with that person. It should not be forgotten that behind every interpersonal organization, there are ordinary people who struggle to satisfy their basic needs.
Demand maximum time from the other party: If you get the other party to invest a lot of time and effort in the negotiation, the probability that they will reject difficult offers left for last is proportionally lower.
The perception factor: It must be started from the basis that everyone is different, so that what is good or harmless for someone, is dangerous for another.
In a technical contracting relationship, a negotiator should never self-neutralize the perception that the other has in his power. You must always think that you are willing to use it unless you obtain a concession in exchange for this fact. Options should not be publicly eliminated without getting something in return.
The identification: The maximum of the negotiating capacity will be obtained by obtaining that the others identify with the approaches of the negotiator. This can be achieved by maintaining reasonable professional demeanor, thereby gaining cooperation, loyalty and respect from the people you deal with.
This makes it necessary for there to be a head of the negotiating team and that within it, precise rules and instructions are given. The inconvenience that more than one interlocutor formally responsible for directing the negotiating team should be highlighted, the rest acting only as advisers or analysts and participating in open meetings only on topics of their specialty.
Although it seems too much to say it, it should be remembered that discussions within a negotiating team should never be revealed to the other negotiating party: a solid and unitary position must be presented to them.
Persistence: If you want to convince someone, you have to show them the immediate relevance and value of what is said in terms of satisfying their needs and desires. In this sense, attitude and poise are very important.
Negotiating for yourself is not always easy as there are excessive pressures and concerns. A relaxed and light-hearted attitude in all your negotiations will bring three benefits. One will have more energy, because you always have more when you enjoy what you do. Two, you will have fewer options. And three, you will get better results, because the attitude will channel the sense of self-control and confidence, indicative of options.
The above may be unknown to many; however, it does not prevent serious difficulties in selecting the head of the negotiating team.
The negotiator must be an experienced person with sufficient power to manage it. Negotiation is something complex that requires preparation and prior effort and does not allow improvisation. It usually happens more frequently than expected that a member of a negotiating group not only surprises and disconcerts the opponents but also his own work group with certain presentations that, after a more careful analysis, turn out to be disadvantageous.
Time is important and you have to know how to handle it in your favor. In any negotiation, expect some important concession and agreement to take place shortly before the deadline. Whoever knows the other's time or who has a more flexible deadline will always have an advantage because as the deadline approaches, the pressure can increase and demand more concessions.
The limits are generally imposed by oneself in an attitude of self-discipline and control of one's own time. For this reason it is not necessary that a deadline be blindly met; It should not be ignored either, but it should be analyzed since the product of a negotiation depends on this, it can also be negotiated.
Once the licensor is selected, the preliminary negotiations begin to perfect and determine the final content of the license.
A boss is then appointed to lead the conversations in the negotiation process. It will be the licensor's job to convince the future licensee that the technology and conditions offered are those desired by him.
The complexity involved in all technology negotiation advises keeping a record of it. Not in terms of recording each session because the mere fact of knowing that what is being spoken is being recorded inhibits participation and spontaneity and fluency is lost. It is preferable that each party entrusts someone to take the respective notes, which can even only record the agreements that are being adopted and ignore the discussions.
Whoever acts as secretary must prepare a summary minute after each work session so that it circulates confidentially among the members of the negotiating team of the next session and to have it in view when preparing the proposal of the final agreement.
It is important to note that the party that prepares the draft of the final agreement will have a significant advantage over the other, as it will make it work on the basis of its proposals, in its language, style and rhythm.
1.5. TECHNIQUES FOR THE NEGOTIATION OF TECHNOLOGICAL CONTRACTS
The negotiation of contracts that have technology transactions or knowledge transfer as their object does not differ substantially from the negotiation of other contracts. It is worth briefly remembering that a contract is an agreement of wills between two or more people, which produces legal effects that are rights and obligations for the parties.
It is important to remember that without prejudice to a series of semantic distinctions, the word "contract" is synonymous with "convention" and also with "agreement" which is the name under which universities are regularly operated. They call them that, but in reality the agreements are contracts. At the international level, the words "convention", "treaty" and "protocol" are more often used when dealing with contracts that are signed between States or between State companies. Conventions, treaties and protocols are ultimately contracts.
Of course, since all negotiation is a peaceful act, it excludes violence. There could not be a valid contract if some violence was mediated to force the will of one of the parties to be hired.
Next, the negotiation implies the search for a balance and a fair meeting of the interests of the parties. This is very important because when you face a technology-related negotiation, you can make a serious mistake if you only seek to win in everything, because in this case your counterpart will withdraw from the negotiation and there will be no contract, or will feel so damaged that in the execution, the subsequent fulfillment of the agreement, will be difficult and will cause problems.
A third emotional aspect is seriousness: when you negotiate, you have already made a decision in some way and, therefore, you should be encouraged by the intention to actually conclude it and not to waste time in a sterile discussion that does not lead to the final celebration of the act.
When it comes to the sale of machinery, the object of the contract will be the provision of equipment, and aspects of knowledge transfer not necessarily incorporated in the machinery will be involved in any way, such as technical assistance for the operation of the machinery, technical assistance for the operation. machinery, technical assistance for the basic maintenance that can be given in the factory and as well the provision of regular spare parts services.
In the negotiation process, three stages can be distinguished: preparation of the negotiation, negotiation and post-negotiation.
1.5.1. Negotiation preparation
It is essential to have a starting point for the preparation of the negotiation, it must be done from the moment in which the interest in hiring is clear for one of the actors, who is usually the one who is going to acquire technological knowledge but which can also be Those who want to sell it, especially when it comes to supplying machinery, companies that produce equipment do not wait to be identified: they send their catalogs, visitors and sellers.
- Constitution of the preparation team: The decision is made to seek an agreement with a certain counterpart, the first activity that one must fulfill is to structure the team that will prepare the negotiation, the human team. This must be a multidisciplinary team, because it must include at least four specialties Information gathering: Once the preparation team has been constituted and the people who are going to prepare the negotiation have been appointed, each of them must collect more information. as exhaustive as possible of the technical, financial and legal background, as well as the company's strategy, which is what management can contribute.
In addition, it is necessary to gather as much information as possible about the counterpart: its legal nature, its executive staff, its solvency, its prestige, in what financial terms it has contracted with other people or institutions, what are the clauses that it has accepted related to industrial property or, in general to technology transfer.
- Letters of Intent: When negotiations involve transfer of industrial secrets, it is usually necessary to formalize the intention of the parties in the sense of getting involved in a contract through letters of intent.
These letters of intent are not the contract finally desired, but they constitute in themselves a prior contract by which, taking into account the declared interest in contracting, the future licensor indicates what knowledge it is willing to reveal to the future licensee to facilitate its decision, and it is obliged to keep them confidential and not to use them in production unless a final agreement is reached.
All the antecedents must be examined and discussed together by the preparation team. A negotiation is not fruitful when the members of the preparation team have worked separately.
The presence of the odd third party plays an important role here, that is, the participation of people from different areas. For example when examining detailed engineering specifications, experience shows that both the finance specialist and the legal advisor, because they are involved in the overall business preparation, make valuable contributions. Usually these are very thick points that, precisely because they are, have escaped the specialists or, failing that, they provide an overview that the specialist does not usually have.
- Simulation exercises: When the negotiation is complex, there is a way to anticipate what the counterparty proposition will be through simulation exercises.
To do this, the team that prepares the negotiation is divided into two groups, of which one must pretend that it is a counterpart, and use the information available to the maximum to estimate which may be the points in which that counterpart will not make concessions. and at what points they can be obtained.
- Previous model of the negotiation: When the negotiation is complex because it involves many points of different nature to be resolved with the counterpart, it is advisable to prepare a written guideline of these points, where possible solutions are outlined and even a response is noted for observations or objections that may arise on the table. Negotiators will, of course, have to be very careful that these guidelines do not transcend the other party.
During the preparation of the negotiation guideline, it should be clearly identified which are the most important points where it cannot be compromised and within them, as far as concessions can be reached.
1.5.2. The negotiation
According to some experiences, it is interesting to comment on the profiles of the negotiators, generally promoted by companies that participate in public tenders or multinational firms.
- The Phantom Negotiator: Every negotiating team must have an authority that makes the final decisions. This authority must be present at the negotiating table when the negotiation opens, when the negotiation ends and when the foreseeable points during a session are not extremely conflicting.The tough negotiator: The tough negotiator is a man who never smiles, he is a man who shakes his head negatively while arguing because he does not agree with anything that is happening there. This keeps the counterpart feeling that his approaches and concessions are not sufficiently satisfactory, predisposes him to be more flexible and encourages him to soften his approaches The friendly negotiator: The understanding and accessible negotiator, on the contrary, is a man that smiles,The man who generally takes the upper hand during the negotiation, is the man who understands the position of the opposing party and that his behavior opens the way to reach certain concessions or to explain and achieve certain points of view.The owl negotiator: Another role of interest is that of the observant negotiator. This negotiator has no responsibility to speak but is attentive during the negotiation to aspects that may be overlooked by other team members, takes notes, passes brief written messages with observations to turn on red or green lights.Another role of interest is that of the observer negotiator. This negotiator has no responsibility to speak but is attentive during the negotiation to aspects that may be overlooked by other team members, takes notes, passes brief written messages with observations to turn on red or green lights.Another role of interest is that of the observer negotiator. This negotiator has no responsibility to speak but is attentive during the negotiation to aspects that may be overlooked by other team members, takes notes, passes brief written messages with observations to turn on red or green lights.
Being all prepared, it is convenient to analyze the following questions. Where is it convenient to negotiate? Should you play from the premises or on a visit? The answer is not easy, because both alternatives have advantages and disadvantages.
The greatest advantage of playing at home is that one has the possibility of using all the equipment that I prepare for the negotiation, because it is at hand.
The main disadvantage is that team members cannot spend all their time negotiating. The family considers that this person must comply normally because he is in the place where he resides. The company or institution to which it belongs requires you to perform as if there were no negotiations in progress. And it must also be focused on this.
Regarding the language. If you are going to negotiate a contract with a Spanish-speaking counterpart, you will not have language problems, unless there are occasionally technical documents in another language. In the latter case, a translation that the parties approve must be insisted on. In the case of processing of technology contracts in Colombia, an official translation is required to proceed with their registration.
But at the table it is also often the case that one has a counterpart who does not speak Spanish, who speaks English or who speaks French. Practice indicates that in such cases one should ask for an interpreter, it does not matter if one speaks English as if he were born in the United States or England. Because even if you don't fully understand what the other party is saying, having an interpreter translate for you gives you extra time to think, and this time is extremely important at a negotiating table.
The text of a contract must be easily understandable and therefore should not be overloaded. Hence, the detail of the technical and financial issues should usually be established in separate documents that are part of the contract but annexed to it. In this way, the reading and understanding of the contract will be quick and easy.
Within each of these types of documents that must be examined in the negotiation, it is generally preferable to start with the documents of greater detail and from there move on to the documents that incorporate that detail in more comprehensive spaces.
What happens when a negotiation reaches a dead end? When does it seem that the negotiation is going to break down? An alternative is to form a joint committee to discuss this separately while still trading at the head table, and to come back with a settlement proposal. This is a good mechanism, but it is preferable to suspend the main negotiation in the meantime, because the negotiating team is left incomplete. Thus, a working group is established to clarify points of disagreement, it must insist on waiting for their proposal before continuing the negotiation.
The revision of the text. The written negotiation guideline must be reviewed and discussed as a team at the end of each negotiation day, to adjust it and introduce the necessary modifications. It is impossible for the preparatory work to have foreseen all the circumstances that may occur at the table, all the observations or proposals that may be received, all the arguments of the counterpart, so that at the end of each day and if possible, during the break At midday, you have to review your negotiating point and prepare the way for the next day or session.
The results of the negotiation can later be finalized in a “final agreement”. The team must only give its final agreement when there are no pending points, it must never give its final consent until all the issues have been overcome, so that there are no issues to be resolved after the negotiation. Because a possible later disagreement, for multiple reasons, can ruin the negotiation itself.
The negotiation like any business must be formally closed, for this there is the so-called “closing exposure”. To conclude the negotiation, when the total agreement is reached, the process should be closed with an intervention from the team leader in which satisfaction is expressed but never triumphalism, because if the ego of the parties is affected, this can later be projected negatively on the execution or fulfillment of the contract.
As for social relations. With these elements, which are quite basic, it can be said that the process of negotiating a contract at the table is covered. But during the same time there are other aspects that are important, which are social relationships. There are crossed invitations to lunch or dinner. If the company with which one is dealing has a public relation, they will send invitations to the head of the delegation or the entire delegation. Some of these invitations are an act of camaraderie for all members of both teams.
It is important to remember that these invitations do not have a strictly social, hospitable purpose, but also to obtain more information about what one is thinking during the negotiation process, what are the intentions, what are the main points of agreement and disagreement.
1.5.3. Post Negotiation
Post-negotiation, there are two important stages to highlight: formality and staff encouragement.
The formality includes the sending of acknowledgment notes in terms similar to those expressed during the closing of the negotiation and the careful fulfillment of the commitments adopted, in the established terms.
Incentives to own staff are important as a policy within the institution to maintain their motivation.
To negotiate there are skills that are innate. There are people who are born negotiators and there are people who are born without this quality. The way to overcome this deficiency, if it can be called that, is precisely the formation of teams, and working with these and other techniques since the sum of the qualities that the team members contribute lead to the desired result.
2. INVESTMENT IN TECHNOLOGY
2.1 Technology as a company asset
Within the company's balance sheet, the technology is accounted for as an asset represented in:
- Working capitalBuildingsMachineryVehiclesHuman capitalTechnology
2.2 Main methods for valuing technology
There are several methods to value technology, it is not only its book value, but also its use value and its commercial impact.
Fixed sum:
- Fee based on research costs (staff + expenses + costs of capital) Fee based on expected sales Fee based on expected profit Fee based on negotiation
Variable Payment:
- Royalty on sales. Usually the rate ranges from 1% to 5%, for 1 to 3 years and often up to 5 years. Royalty on profits. Rates normally range from 5% to 20%, with a maximum of 30%.
2.3 Mixed Theoretical Formula
This formula is used in China to value technology:
PT = PAY FOR TECHNOLOGY
G = RESEARCH EXPENSES ON SUPPLIES
S = WAGES
CC = COSTS OF CAPITAL USED IN THE INVESTIGATION
r = AVERAGE RISK IN THE DEVELOPMENT OF THE TECHNOLOGY
n = NUMBER OF COMPANIES USING THE TECHNOLOGY
t = TIME IN YEARS OF USE OF THE TECHNOLOGY BY THE COMPANY
p = GRANTOR'S PARTICIPATION IN THE USER'S PROFIT
It is the increase in the rate of profits obtained by the company that uses the technology.
2.4 Methods for calculating royalties
At the end of the negotiation, what is ultimately important is to know what royalties or royalties generate the venture or innovation.
- EM = According to the pig, although the expression is derogatory. MARKET VALUE OR CUSTOM STANDARD IN THE SECTOR 25% OR 33% OF PROFIT NET R & D COSTS PLUS% OF PROFIT ANALYTICAL METHOD WITH COST ACCOUNTING: DIFFERENTIAL OF IRR: It is the rate that makes the income equal to the expenses produced in a certain investment alternative. The time value of money is considered. The main assumption of the IRR is that all cash flows are always reinvested at the same rate. Net future value equals zero. The calculation of the IRR uses the trial and error method. ROI is a profitability indicator that allows calculating the profitability generated by an investment, but without considering the value of money over time and without considering the changes that the components may present. they define it.MANUFACTURING COST DIFFERENTIAL VALUE ADDED DIFFERENTIAL CASH FLOW DIFFERENTIAL: Income and expenses generated in a certain investment alternative COMBINED METHODS
2.5 Factors that influence the value of technology
- IMPORTANCE OF INNOVATION: Radical or incremental. TECHNOLOGY LIFE CYCLE: In what stage is it in relation to the introduction, growth, maturity or decline. STATE OF DEVELOPMENT OF THE TECHNOLOGY: What is the state of the art of technology?.UTILITY GENERATED BY THE PRODUCT: Regarding the benefits obtained. EXCLUSIVE CHARACTER OF THE LICENSE: Geographically or spatially. MARKET SIZE AND QUALITY: According to the sector to which the innovation belongs. TRANSECTORAL SCOPE OF THE INNOVATION: The innovation in different industrial or service sectors? THE STRENGTH OF A PATENT OR TRADE SECRET: Industrial property is strong in terms of the innovation protection strategy? ADVANTAGES OF THE NEW TECHNOLOGY: With respect to the previous technology. OF OTHER TECHNOLOGIES:Is it more profitable or does it have risk in the face of possible substitutes?. DEGREE OF COMPETITION IN THE MARKET: Are there other technologies that compete with the same characteristics? DURATION OF THE LICENSE: In time.INVESTMENT REQUIRED TO USE THE NEW TECHNOLOGY: What is the value of the investment? TECHNICAL LEVEL OF THE CONCESSIONAIRE: Has technical capacity? GRANTING OF SUBLICENCES: It is approved to give sublicenses to third parties? PRODUCTION PLAN: It will be in scale, standard, or personified? INITIAL PAYMENT: What are the royalties of the patent and its fees ?.Does it have technical capacity? GRANTING OF SUBLICENCES: It is approved to give sublicenses to third parties? PRODUCTION PLAN: Will it be in scale, standard, or personified? INITIAL PAYMENT: What are the royalties of the patent and its fees ?.Does it have technical capacity? GRANTING OF SUBLICENCES: It is approved to give sublicenses to third parties? PRODUCTION PLAN: Will it be in scale, standard, or personified? INITIAL PAYMENT: What are the royalties of the patent and its fees ?.
2.6. The Confidentiality Agreement
With the aim of protecting the different innovations that arise from entrepreneurial activity, also out of respect for ideas and creativity, the concept of "Confidentiality Contract" has been generated. This allows to have a temporary protection on a type of business, restricts the activity of the competition in terms of access and use of information and gives a higher level of seriousness to the business.
2.6.1. A Model Confidentiality Contract
I present below a model for the drafting of "CONTRACT OF CONFIDENTIALITY IN THE FIELD OF INVENTIONS AND TECHNOLOGICAL DEVELOPMENT".
CLAUSE ONE: DEFINITIONS. For the purposes of this Contract, the terms used will be considered in accordance with the following: I) CONTRACTING PARTIES. They are those natural persons, considered of legal age according to the applicable legislation or legally constituted legal persons, whose identification data appear in the ANNEX to this Contract, called, on the one hand, THE OWNER and on the other hand, THE INTERESTED PARTY. II) THE OWNER is the author of a technological development or improvement project already patented or capable of being patented, also identified in the Annex to this Contract. III) THE INTERESTED PARTY is the person who plans to assess the technical and commercial viability of the related project, in order to carry out its exploitation in any of its forms.IV) CONFIDENTIALITY OF THE INFORMATION. For the purposes of complying with the purpose of this Agreement, the term confidentiality of information includes any kind of information regarding the related project. Said information will be kept confidential by the person receiving it and will not be disclosed in any way, in whole or in part, to any natural or legal person that is not a party to this Contract.
SECOND CLAUSE: OBJECT. In order to carry out the negotiations aimed at achieving the proposed purpose; THE OWNER undertakes to deliver to the INTERESTED PARTY all confidential or non-confidential information regarding the related project that is necessary to assess its technical and commercial viability; For its part, THE INTERESTED PARTY undertakes to use said confidential information in a reserved manner and will be liable to the OWNER for non-compliance with this obligation, either by itself or by its agents, representatives or dependents. The obligation of confidentiality and of using the information provided will continue in force indefinitely.
THIRD CLAUSE: SPECIAL OBLIGATION OF THE INTERESTED PARTY.
THE INTERESTED PARTY undertakes to immediately return to the OWNER, after receiving their written request, all copies of the confidential information provided, or also at written request, totally destroy the aforementioned copies. The destruction of confidential information must be confirmed in writing by the INTERESTED PARTY.
FOURTH CLAUSE: SPECIAL OBLIGATION OF THE OWNER. THE OWNER undertakes to notify the INTERESTED PARTY, by the means provided in Clause 10, the receipt of an offer from a third party to sign a contract that has as its object any form of exploitation of the related project, the negotiations provided for in this Contract are pending.. THE INTERESTED PARTY will be empowered to respond, by the same means and within a maximum period of ten days from the date following the communication, if it is in their interest to match the conditions offered by the third party. Once said period has expired, without the response of the INTERESTED PARTY, THE OWNER will have the right to carry out negotiations with the third party.
FIFTH CLAUSE: TERRITORIAL SCOPE. If the negotiations held within the framework of this Contract are concluded, the commercial exploitation of the project will take place in the territory of the country or countries mentioned in the ANNEX.
CLAUSE SIX: SANCTIONS. In case of breach of the respective obligations, the parties agree: 1. To claim the damages and losses that in each case correspond; 2. They agree to the automatic default; without the need for any judicial or extrajudicial interpellation; and 3. Agree in advance to grant a precautionary measure in favor of the complying party without the need to prove the existence of damage.
SEVENTH CLAUSE: INTERPRETATION RULES. This Contract will be interpreted in accordance with the following considerations: I) This agreement unifies and replaces all previous or simultaneous agreements and understandings between the parties, written or verbal, in relation to its object; II) No clause or condition of this Contract may be waived without the written consent of the parties. The indulgence or tolerance allowed by any of the parties in any aspect of the Contract will not constitute a waiver of the agreed clause or condition; III) Whenever the context of this Contract so requires, the masculine gender will include the feminine or neuter; the singular number will include the plural and the reference to one or more parties will include all the assignees of said party;IV) The references and titles contained in this Contract are included for reasons of practical convenience and do not affect in any way the meaning or interpretation of the Contract; V) If any provision of this Contract is considered invalid, illegal or not enforceable, this will not affect the other stipulations of the Contract, which will be interpreted as the invalid, illegal or unenforceable provision had never been agreed. CLAUSE EIGHT: ARBITRATION, APPLICABLE LAW AND COMPETENT COURTS. I) Arbitration. Differences that arise in the interpretation or application of this Contract, as well as unforeseen situations, will be resolved without appeal by a court of three members, two of them, one appointed by each party, who by mutual agreement will designate a third, who will exercise the presidency,It must be a suitable one according to the matter under discussion. The arbitrators must resolve in accordance with equity. The term for the appointment of each of the members of the tribunal shall be 15 (fifteen) calendar days. The Tribunal shall have 30 (thirty) calendar days from the date on which it was constituted, to pronounce its award. II) Applicable law. The laws of the country designated in the ANNEX will be applicable to any matter to which this Contract gives rise, its execution or its consequences. III) Competent Courts. Without prejudice to what is stated in numeral I) of this clause, the Judicial Courts of the country whose law is applicable will be competent to understand the matters to which this Contract gives rise.The arbitrators must resolve in accordance with equity. The term for the appointment of each of the members of the tribunal shall be 15 (fifteen) calendar days. The Tribunal shall have 30 (thirty) calendar days from the date on which it was constituted, to pronounce its award. II) Applicable law. The laws of the country designated in the ANNEX will be applicable to any matter to which this Contract gives rise, its execution or its consequences. III) Competent Courts. Without prejudice to what is stated in numeral I) of this clause, the Judicial Courts of the country whose law is applicable will be competent to understand the matters to which this Contract gives rise.The arbitrators must resolve in accordance with equity. The term for the appointment of each of the members of the tribunal shall be 15 (fifteen) calendar days. The Tribunal shall have 30 (thirty) calendar days from the date on which it was constituted, to pronounce its award. II) Applicable law. The laws of the country designated in the ANNEX will be applicable to any matter to which this Contract gives rise, its execution or its consequences. III) Competent Courts. Without prejudice to what is stated in numeral I) of this clause, the Judicial Courts of the country whose law is applicable will be competent to understand the matters to which this Contract gives rise.The Tribunal shall have 30 (thirty) calendar days from the date on which it was constituted, to pronounce its award. II) Applicable law. The laws of the country designated in the ANNEX will be applicable to any matter to which this Contract gives rise, its execution or its consequences. III) Competent Courts. Without prejudice to what is stated in numeral I) of this clause, the Judicial Courts of the country whose law is applicable will be competent to understand the matters to which this Contract gives rise.The Tribunal shall have 30 (thirty) calendar days from the date on which it was constituted, to pronounce its award. II) Applicable law. The laws of the country designated in the ANNEX will be applicable to any matter to which this Contract gives rise, its execution or its consequences. III) Competent Courts. Without prejudice to what is stated in numeral I) of this clause, the Judicial Courts of the country whose law is applicable will be competent to understand the matters to which this Contract gives rise.Without prejudice to what is stated in numeral I) of this clause, the Judicial Courts of the country whose law is applicable will be competent to understand the matters to which this Contract gives rise.Without prejudice to what is stated in numeral I) of this clause, the Judicial Courts of the country whose law is applicable will be competent to understand the matters to which this Contract gives rise.
CLAUSE NINE: ADDRESSES. The addresses established in the ANNEX constitute special addresses for all purposes of this Contract. If one party changes his address, he must inform the other by the means established in the following clause, within fifteen days of the date.
CLAUSE TENTH: NOTIFICATIONS. For the purposes of this Contract, the Note with acknowledgment of receipt is agreed as a valid means of communication. The acknowledgment of receipt must contain the date, full name, signature, clarification of the signature and identification of the person who received it, stating the type of document.
ANNEX TO THE CONFIDENTIALITY AGREEMENT REGARDING INVENTIONS AND TECHNOLOGICAL DEVELOPMENT
CLAUSE ONE: DEFINITIONS.
OWNER:
ID:
Home:
INTERESTED:
ID:
Home:
TECHNOLOGICAL DEVELOPMENT OR IMPROVEMENT PROJECT:
Description:
2.6.2. Press release
Below I mention some press releases that are made after a negotiation or before, to inform the public opinion and the competition of some strategic agreements.
NASD and the Japanese company Softbank sign the agreement for the incorporation of
"Nasdaq-Japan Electronic Stock Market", a new electronic stock market that will come into operation in the fourth quarter of 2000
June 15, 1999
Contact Persons: Andrew MacMillan, NASD
(212) 858-4150
Scott Peterson, NASD
(202) 728-8955
Charlotte Rush, Softbank
(212) 503-5468
New York, NY-The National Association of Securities Dealers, Inc. (NASD®) and Softbank Corporation today signed an agreement in Tokyo to create a new joint venture company, -Nasdaq-Japan- with the objective of developing and putting into A new electronic stock market is underway in Japan that will be operational by the last quarter of 2000.
The Nasdaq-Japan project will be built according to the electronic market model for securities trading used by The Nasdaq Stock Market® and will use the Internet as its main communication channel to offer a state-of-the-art stock market. This new market will offer Japanese investors the opportunity to invest in the strongest stocks in the new technology industries (undoubtedly the fastest growing today) and will facilitate the placement of equity capital for emerging Japanese companies.
Frank G. Zarb, President and CEO of NASD, said: “It's a natural partnership that comes at the right time. With the help of our strong Japanese partner, Softbank, we will harness the full potential of the Internet to create a stock market that stimulates job creation and economic development. Softbank and Nasdaq® will join forces, experience, know-how and technology to offer Japanese investors the possibility of trading with the most important securities in the world, promoting the development of a market in which emerging Japanese companies will have more opportunities to find corporate financing.
Masayoshi Son, President and CEO of Softbank, said: “Nasdaq's experience as the creator of the world's most advanced stock market will help us build a stock market for Japan that stimulates growth of capital and business activity, currently a both numb. The system that we are going to jointly establish in Japan will have unparalleled liquidity and transparency and will offer
Japanese investors have never had access to business opportunities. It will soon become the model for international financial interconnection. '
Market structure
Nasdaq-Japan will launch an innovative market structure that will take advantage of the immediate liquidity inherent in the Nasdaq Market Maker model, while offering high transparency through centralized order flow. The market will operate 24 hours a day, ensuring uninterrupted access to the greatest investment opportunities in Nasdaq-Japan and its subsidiaries.
Listed securities
Thanks to this new market, Japanese investors will be able to invest in the world's fastest growing stocks. NASD and Softbank foresee that all securities listed on Nasdaq can be traded, with indices such as the Nasdaq-100 Index Tracking StockSM (symbol QQQ), and with representative shares of expanding Japanese companies that decide to trade on Nasdaq-Japan..
Market Makers for Nasdaq-Japan
Among the Market Makers (market makers or counterparties) that will form the Nasdaq-Japan electronic marketplace will include some of the largest Japanese and US securities companies. In fact, talks have already started with leading companies to establish the initial Market Makers group.
Nasdaq-Japan ownership
Nasdaq-Japan will be incorporated as a private for-profit company, which will be equally owned by NASD and Softbank. Both partners foresee a significant participation in the equity capital of the main Japanese and American financial companies. Nasdaq-Japan will use mainly local resources and will be led by a Japanese manager.
Regulation
Softbank and NASD will guarantee their investors the highest degree of protection and absolute respect for current legislation. The new plaza will use the most advanced technologies in terms of market supervision and inspection to ensure that all its members operate fully, transparently and in accordance with the legislation.
Advantage
The new market will offer multiple advantages, including:
A transparent, efficient, easily accessible, perfectly regulated market with instant liquidity. Access to equity fund issuers from around the globe thanks to the sophisticated telecommunications network that will allow seamless connection between Nasdaq-Japan and financial businesses around the world. The ability for Japanese investors to invest in many of the securities listed on Nasdaq, in securities of Japanese high-tech companies that choose to trade, as well as in structured products such as the Nasdaq-100 Index Tracking StockSM. The possibility that US investors can invest in Japanese companies thanks to the dual listing system in both markets, Nasdaq-Japan and The Nasdaq Stock Market.Job creation and boosting economic development in Japan through a dynamic market that will serve as a link between investors and entrepreneurs.
Information about NASD
NASD is the largest self-regulatory organization in the US securities market and is the parent company of Nasdaq-Amex Market Group, Inc. and NASD Regulation Inc. Through its regulatory affiliate, the NASD is responsible for creating rules and regulations., constitutes a forum for the resolution of disputes and supervises the actions of its members in order to safeguard and protect the interests of investors. Through Nasdaq-Amex Market GroupSM, the NASD manages The Nasdaq Stock Market and the American Stock Exchange
(American Stock Exchange, Amex®). NASD's regulatory competence extends to 5,600 brokerage and brokerage firms and more than half a million professionals in the securities industry. The NASD may provide consumers upon request with professional and disciplinary reports on companies participating in the market and on individual brokers or intermediaries. It also provides advice for filing claims.
For more information about NASD and its affiliates, you can visit the following websites: http://www.nasd.com; http://www.nasdaq.com; http://www.nasdr.com; or the Nasdaq-Amex NewsroomSM news service at:
Information about Softbank
The Softbank of Tokyo is one of the largest Japanese companies in the electronic information sector. It is also the country's largest distributor of computer software and publications and participates in more than 60 Internet-related companies. Softbank owns 51 percent of Yahoo Japan Corporation (JOTC: 4689), 60 percent of GeoCities Japan, 100 percent of ZDNet Japan, 50 percent of broadcast.com Japan, 60 percent of ONSALE Japan, 50 percent from CarPoint Japan, 53 percent from InsWeb Japan, 60 percent from E-Loan Japan, as well as 58 percent from E * TRADE Japan. In the United States, Softbank owns 69 percent of Ziff-Davis Inc. (NYSE: ZD), 26 percent of Yahoo! Inc. (Nasdaq: Yahoo), 80 percent from Kingston Technology and 27 percent from E * Trade Group Inc. (EGRP).For more information about Softbank, you can visit the following website:
Information advertisement on the Internet
To provide more information about this event, a special website has been created at the following address: http://www.nasdaq-japan.com The video showing the signing of the agreement in Tokyo is available in English and Japanese at: http: //webevents.broadcast.com/softbank/index.html.
Some interesting facts about Nasdaq-Japan
THE PARTNERS: Softbank Corporation and The Nasdaq Stock Market will finance the creation of Nasdaq-Japan in equal parts, 50/50. A group of the most important American and Japanese financial companies will act as Market Makers.
OWNERSHIP: Nasdaq-Japan will be established as a private for-profit company that will be equally owned by NASD and Softbank. Both partners foresee a significant participation in the equity capital of the main Japanese and American financial companies.
OBJECTIVE: To offer Japanese investors the opportunity to invest in securities that represent the most advanced technology in the world and have the greatest potential for growth, as well as facilitate the placement of equity capital for Japanese developing companies.
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