On October 29th, the Ministry of Economic Development has published two opinions in response to questions raised in relation to the rules governing Start-ups and innovative SMEs. These are the first clarifications issued by the Ministery in relation to the practical implementations of such legal provisions.

The context

Start-ups and SMEs that invest in research and development activities and use industrial property can, under certain conditions provided by the law, obtain the title of “innovative companies”, and thus haveing access to a range of benefits and incentives, in the tax area and beyond.

The requirements and benefits that are provided for the “Innovative Start-ups ” are different from those for “Innovative SMEs”; however, for both of them, one of the factors that allow the company to be qualified “innovative”, is the ownership of a patent or of a computer program.

The patent that innovates

In its first opinion, the Ministry has clarified that, to the purpose of obtaining the status of innovative company, it is relevant not only the ownership of a patent by a certain company, but also the ownership of a patent application (i.e. the company has filed a patent application and the relevant registration procedure has not been completed).

It was also clarified that the licensee enjoys the same treatment of the owner of a patent, in the event that the license relate to a patent application (i.e the granting procedure is still ongoing).

The software that qualifies the company as innovative

As regards to computer programs, the law provides that a start-up is innovative when it “the “owns the rights on a computer program registered in the public register for computer programs.”

In this regard, the Ministry has clarified that “undertaking  holding a computer program” is meant not only the author of the software but also the subject (possibly other than the author) who is a holder of the exclusive rights of exploitation of the computer program. Therefore the company can be qualified as innovative if it bought the rights to a computer program or if it is the exclusive licensee of the computer program.