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University technology-based companies: the university legal framework, promotion or hindrance for their creation and development?

Del Nº 2 / 2019
University technology-based companies: the university legal framework, promotion or hindrance for their creation and development?
Jesús Olavarría Iglesia
Departamento de Derecho Mercantil “Manuel Broseta Pont” de la Universitat de Valencia



The radical change in mentality concerning the role that Universities should play in society that took place in the transition period from the twentieth to the twenty-first century has meant that, together with humboldtian functions of teaching and research, a third function has been added, the transfer of knowledge to society. This conforms neatly to the so-called “triple helix model”.
The economic crisis has accentuated and continues to accentuate this change in mentality in a context in which the new “knowledge economy” is seen as a way of reflating the economic fortunes of society via the transfer of knowledge and the innovative developments of the Spanish research system. This has brought about the clear necessity for a link between University research and systems of production as a way of articulating the transfer of the knowledge that has been generated, and in particular, for the direct presence of the Universities in the processes of innovation of businesses.
One of the instruments through which this link has been realised has been the promotion, creation and the participation of the Universities in Technology Based Companies (also known as academic spin-off companies), that originate from the results of research carried out by the Universities themselves. Currently there are more than 1,500 Technology Based Companies, the great majority of which have been created since 2001. While they can achieve high levels of growth and profitability, they also face high levels of risk and uncertainty caused, among other factors by, technological risk, the sometimes intangible nature of their competitive advantages, the need for prolonged investment cycles, liquidity shortfalls in the short and medium term, uneven cash flows and the difficulty of obtaining finance through traditional channels.
Three different areas of law converge in these companies, the legal framework of Universities (Public Law), Company Law and Intellectual and Industrial Property Law. The coordination of these three areas is no easy task, given that it requires articulating the different, and often contradictory interests involved. These include the interests of the University which generally speaking are the interests of a public entity, and which are the owners of the exclusive rights developed and exploited by the Technology Based Companies, and the interests of the researchers and lecturers who have originated this knowledge, and who generally speaking take the business initiative, frequently without any prior experience or training It is also necessary, where appropriate, to consider the interests of external partners, among which one must distinguish the capital provided by friends and family to the researchers, and that provided by financial investors, that may or may not hold stakes or shares in the company, but whose investment, at both the initial and development stages of the company, as well as in its subsequent growth to maturity, is often essential (seed capital, business angles, venture capital, etc.).
A favourable, stable and adequate legal framework that produces the smallest possible degree of legal uncertainty is without doubt one of the factors necessary (if not the only one) for the consolidation and development of this instrument for the transfer of knowledge that is of great importance for the University, for society in general and for the system of production in particular.
This article describes and analyses how the legal framework of the Universities in Spain has configured this business reality in the first decade of the twenty-first century. A legal framework which enables under certain conditions, and establishes certain measures for the creation and development of these companies in Spanish Universities. This article provides an essential point of entry for the study of these companies and shall be developed upon in later articles concerning their corporate characteristics and the problems they face in obtaining finance.
Despite the great advances made in this field with respect to even recent decades, the process has been characterised by a flood of successive regulations whose integration and interpretation are highly complex. Furthermore, these regulations have suffered from a lack of development and are, to a great extent, insufficient. This situation has led to a profusion of disperse and diverse regulations produced by a multiplicity of Universities
Above all, it has resulted in a climate of legal uncertainty that does not favour the creation and development of these companies which are originated by and which feed upon University research and which represent a particularly sensitive sector of the knowledge economy.

Keywords: University technology-based companies, academic spin-off companies, the transfer of knowledge, University research.

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