State Aid Through Staff Knowledge
While, according to the interviewees, there are staff working in the private sector during research leave or a sabbatical and there are funding programmes for such staff transfers between the universities and the economic sector for a limited period of time, this is rather rare because, inter alia, a public interest in doing this has to be proven and that is difficult. It is more common, though not frequent, that members of staff have a side job in the private sector or work as entrepreneurs having established their own companies out of the universities, often with the help of the university or public funding initiatives. One interviewee, for example, mentioned state funding which pays half the salary of the member of academic staff to allow them to work part time in the start-up. Some interviewees mentioned that the universities may help through initially providing infrastructure or giving contracts to the start-ups or spin-offs, but with a view to the companies eventually becoming economically self-sustainable. Often such support would be regarded as starting help without returns being required, but if the investments are more significant, the universities attempt to agree some kind of payback to be received in due course. The spin-offs/start-ups could also be beneficial for the university because they may later involve them in common projects. Finally, Ph.D. researchers would sometimes write their theses in co-operation with a company. In the latter case the companies would often pay a scholarship and direct costs which, according to one interviewee, allows them very cheap access to research results.
The interviewees explained that if staff work in the private sector they have to notify the universities of the private sector role and its extent. For civil servants, approval must be sought which may be denied if there is a conflict of interest (i.e. if the work for the private sector is something which should be done in their main activity). According to an interviewee working on business collaboration, this assessment had been more relaxed in the past and has recently become stricter. Since the employers own any inventions, companies may try to argue that they own an IPR if it was made during the researcher’s working time at the company. As mentioned above, the universities will, however, always argue that any invention should belong to them as the invention could not have been made without the expertise acquired during staff’s public sector work. In some universities this would also be contractually agreed and the Arbeitnehmererfindungsgesetz would support this assessment. The private sector company may, however, get an option right towards receiving a license for the usual fee. As regards general experience and knowledge, staff can bring this freely into their private sector work without any further obstacles because the main focus here is the transfer of knowledge and the bringing of academic results to the market as actual products.
Universities try to protect themselves from private sector exploitation of IPRs which could only be generated through the knowledge by seconded staff acquired in the universities. This would, however, obviously, require the universities being notified about IPRs which might not always be the case, since the universities rely on inventions being reported by employees. Furthermore, knowledge is being transferred beyond actual inventions leading to IPRs through staff or Ph.D. students working in the private sector and, additionally, there are even public initiatives supporting this. While the creation of a spin-off by the universities itself and with the sole aim of reinvesting all income into the primary activities is regarded as a non-economic activity by the Commission, this might end if the spin-off becomes privately owned. Additionally, all knowledge transfer beyond this may potentially be regarded as state aid, subject to the possibility of exemption especially as regards innovation aid for SME, because the private sector company in question exclusively benefits from the researchers knowledge and potentially from additional funding.