If the patent is good enough, a company or enterprise will usually contact you directly to purchase your patent. Otherwise, it is to auction at an auction. For ordinary inventions or designs, it is best to invest in patented technology. The details are as follows:
1. Patent investment and shareholding process.
Investment of shares through patent investment requires evaluation by a specific asset appraisal agency. Patents, as a kind of intellectual property, can be used as a form of investment for enterprise establishment through monetary valuation, and must be handled in accordance with prescribed procedures.
1. The shareholders *** sign the company's articles of association and agree on the amount and method of each other's capital contribution.
2. The patent owner shall legally entrust an asset appraisal agency established with the approval of the financial department to conduct an evaluation and handle the registration and announcement procedures for changes in patent rights.
3. Issue the corresponding evaluation report during industrial and commercial registration, the written opinions of relevant experts on the evaluation report, the business license of the evaluation agency, and the patent transfer procedures.
4. Foreign joint venturers that use industrial property rights or proprietary technologies as capital contributions shall submit relevant information on the industrial property rights or proprietary technologies, including copies of patent certificates or trademark registration certificates, their validity status, and their Relevant documents such as technical characteristics, practical value, calculation basis for pricing, pricing agreement signed with the Chinese joint venturer, etc., shall be included as attachments to the joint venture contract.
2. Several issues regarding patent investment and equity participation.
Article 27 of the "Company Law" "Shareholders may make capital contributions in currency, or in kind, intellectual property rights, land use rights and other non-monetary properties that can be valued in currency and transferred in accordance with the law; However, except for properties that are not allowed to be used as capital contributions according to laws and administrative regulations, non-monetary properties that are used as capital contributions must be evaluated and verified. If laws and administrative regulations have provisions on evaluation and valuation, they shall not be overvalued or undervalued. The amount of monetary contributions from all shareholders shall not be less than 30% of the registered capital of a limited liability company. ”
Article 7 of the “Company Registered Capital Registration and Management Regulations” refers to non-monetary property contributed by shareholders or promoters. , the capital should be verified by a capital verification agency after the valuation is made by an asset appraisal agency with appraisal qualifications. Article 8 Shareholders or promoters may make capital contributions in currency, or in kind, intellectual property rights, land use rights and other non-monetary properties that can be valued in currency and transferred in accordance with the law. If shareholders or promoters contribute capital with property other than currency, physical objects, intellectual property rights, or land use rights, they must comply with the relevant regulations formulated by the State Administration for Industry and Commerce in conjunction with relevant departments of the State Council. Shareholders or promoters may not contribute capital in the form of labor services, credit, names of natural persons, goodwill, franchise rights or properties with guaranteed properties, etc. Article 9 Shareholders or promoters must contribute capital in their own names.
Patent rights are intellectual property rights and can be used as objects of investment and shareholding. However, whether the right to apply for patents and the right to implement patents also belong to intellectual property rights and can be used as objects of investment and shareholding by shareholders is quite likely to cause controversy in practice. .
1. Identification of patented technology shares.
The procedure for shareholders to establish a company by investing shares is to first sign a contract, formulate articles of association, and determine the amount and method of the shareholder's capital contribution. Once shareholders sign the contract and articles of association, they are bound by the articles of association and must fulfill their obligations in the amount and method of capital contribution stipulated in the articles of association. To invest in shares of patented technology, the value of the patented technology must be evaluated, and then the patentee shall go to the Patent Office to handle the registration and announcement procedures for the transfer of patent rights to the invested company in accordance with the contract and articles of association for establishing the company. The industrial and commercial registration authority shall transfer the patent rights based on The procedures determine the fulfillment of shareholders' investment obligations by shareholders who invest in patented technology. However, in practice, some industrial and commercial registration authorities do not regard the completion of registration and announcement procedures for patent rights transfer as a necessary requirement for patent technology shares, but use a patent rights transfer contract between the shareholder and the invested company as a requirement for patent rights transfer. In some cases, patent licensing contracts are used as the basis for completion of the patented technology shareholding procedures, which can easily lead to disputes among shareholders over whether to fulfill their investment obligations.
1. Can the right to apply for a patent be used as an object of investment by shareholders?
The right to apply for a patent is the right of a person who has the right to apply for a patent to request the patent office to grant a patent for an invention. According to the provisions of my country's Patent Law, the right to apply for a patent can be transferred, and it is stipulated that in addition to a written contract, the transfer of the right to apply for a patent must also be registered and announced by the Patent Office before it can take effect. This shows that the right to apply for a patent is a It is a transferable civil right with property content, and requires registration and announcement, so that the scope of intangible inventions and creations can be disclosed. Therefore, the economic phenomenon of investing in shares with patent application rights has arisen. But whether this is allowed by law can only be concluded after defining the legal nature of the right to apply for a patent.
1. The right to apply for a patent is not intellectual property.
The object of the right to apply for a patent is inventions and creations, and the only rights with inventions and creations as the object of intellectual property rights are patent rights. Patent rights and patents The fundamental difference between the right to apply for a patent is that the patent right must be reviewed by the Patent Office and grant the exclusive exclusive right to implement the invention-creation that meets the patent technical conditions, while the right to apply for a patent only requires the patent applicant to apply to the Patent Office for the grant of a patent right for his or her invention-creation. subjective desire. The invention-creation that is the object of the patent application right does not have exclusive rights, and the patent applicant cannot exclude others from using his invention-creation based on the patent application right. Only after the right to apply for a patent for an invention has undergone substantive examination by the Patent Office can it enjoy the right to temporary protection. Therefore, the right to apply for a patent does not have the nature of intellectual property.
2. Patent application rights are different from non-patented technologies
Non-patented technologies use means other than patents to realize the value of their technical value, an intangible asset, and their important characteristics are Self-preservation of technical secrets is used as a protection method, and the law provides necessary protection to technology owners who have fulfilled their confidentiality obligations to prevent illegal theft of technical secrets. The right to apply for a patent requires disclosure of the technology, and the purpose is to obtain the monopoly right to implement a certain technology through patent authorization. Therefore, although the technology in the patent application stage is also in the status of non-patented technology, the protection methods of the two are completely different. Therefore, , the right to apply for a patent does not fall into the category of non-patented technology. However, before the patent application rights are announced, if the patent applicant withdraws the patent application, it can be converted into non-patented technology.
3. The right to apply for a patent is the right to expect a patent
The right to apply for a patent is the possibility of being granted a patent after the applicant applies for a patent to the Patent Office; that is, the right of his patent Whether it can be obtained depends on whether the patent office authorizes it. If authorized by the Patent Office, the right to apply for a patent will be converted into a patent right, and the right to expect will become a vested right. If there is no authorization, the technology to which the patent application right refers has no property value. Therefore, the right to apply for a patent is a right to expect patent rights for inventions and creations, and this right cannot be used as an object of investment.
2. Can the right to exploit a patent be used as an object of investment by shareholders?
The right to exploit a patent is a right derived from the patent right. It is obtained by the patentee through signing a patent licensing contract. Transfer the right to exploit the patent to another person, and the other person will have the right to exploit the patent. Usually, the person who is licensed to implement the patent has to pay a consideration to obtain the right to exploit the patent. Precisely because the right to exploit the patent has the characteristic of being transferred to others by the patentee, and the procedure of investing in shares with the right to exploit the patent is simpler than that with the patent right, therefore, It has become a relatively common economic phenomenon to invest in shares using patent licensing rights.
There are several salient features of investing in shares with patent implementation rights:
(1) The shareholders and the patentee are the same. If the patentee changes, the shareholders will also change.
(2) The shareholder retains the patent rights and transfers the patent implementation rights to the invested enterprise as the registered capital when the enterprise is established. Shareholders have the obligation to safeguard patent rights.
(3) The shareholder transfers the patent implementation rights in the form of a patent implementation license contract, and the content of the patent implementation rights is stipulated in the contract.
The right to exploit the patent can be stipulated in the form of a general license, or the content of the right to exploit the patent can be determined in the form of an exclusive license. However, the transfer of the right to exploit the patent directed by the patent licensing contract does not require registration and announcement.
(4) The patentee can charge a fee for transferring the right to exploit the patent, and the fee should be used as a price for shares to obtain shareholder rights.
(5) The right to exploit a patent does not have the direct effect of excluding infringement by others. Only the patentee, that is, the shareholder, can exercise its right to compensate for damages to realize its rights and interests. Since the patent implementation right is operable, it is also understood as investing in patented technology. Therefore, its legality is less suspicious, but there are major legal flaws in patent implementation rights becoming the object of shareholder investment.
First of all, patent enforcement rights are not intellectual property rights, but claims with patent rights as the object. There is no legal basis for using claims as the object of shareholder investment. Intellectual property rights are copyright rights, and according to intellectual property rights, the right holder can directly implement his rights without the help of others. For other people's infringement, the rights holder can directly file an infringement lawsuit based on intellectual property rights. The patent enforcement right is a human right, that is, the obligor of the patent enforcement right is the patentee, and the patent enforcement license contract is only binding on the patentee and the patent enforcement licensee. When others commit infringement by producing or selling patented products, the patentee can only exercise the right to claim damages, and the patent rights holder can only exercise the right to claim damages jointly and severally based on the license contract. Patent right is a kind of control right. The patentee can directly implement the patented technology, or he can dispose of the patent right, transfer it to others, or allow others to implement the patented technology through a patent implementation license contract, while the patentee can only If you implement the patented technology within the scope of the contract, you cannot dispose of the patented technology. It can be seen that the right to implement a patent is a creditor's right in nature, that is, a creditor's right that takes the patent right as the object and determines the scope of patent implementation as the content. The creditor's right cannot be used as an object of investment in a limited liability company.
Secondly, the legal consequences of investing in shares with patent enforcement rights conflict with the provisions of the Company Law, specifically in the following aspects: First, the Company Law stipulates that shareholders must obtain the consent of other shareholders when transferring equity, and The patentee uses the patent right to invest in shares because it is a contractual act, and the patent right transferred by the contract is not registered and announced as a publicity method. Therefore, if the patentee transfers his patent right, the new patentee may Without knowing that the patent right has been invested, this will create a conflict of interest between the new patentee and the invested company that has the patent right. The result of resolving this conflict will inevitably conflict with the law. If the patentee is transferred, it will naturally Substituting the transfer of patent rights into shareholder status violates the provisions of the Company Law that require the consent of other shareholders for equity transfer, and other shareholders have priority to purchase equity. If the original patentee is allowed to continue to enjoy shareholder rights, the right to implement the patent will exist independently of the patent right, which is in conflict with the patent law.
Second, according to the provisions of the Patent Law, the patentee can sign multiple patent implementation license contracts with others, which may lead to the situation where the implementation rights of the same patent are invested in different companies multiple times. If the patentee holds the position of director or manager, it will violate the provisions of the Company Law prohibiting horizontal competition among directors and senior managers. In addition, the value of patent enforcement rights is uncertain, that is, the more patent enforcement rights are established, the lower its value. Regulations that restrict the patentee from setting patent enforcement rights only have contractual effect and do not have exclusive effect. Even if it is agreed that the patentee shall invest in shares with the exclusive license to exploit the patent, once the patentee violates the agreement and abuses the right to exploit the patent, the patentee can only be held liable for breach of contract, but it cannot prevent other parties who have obtained the right to exploit the patent in good faith. Patent enforcement behavior makes it difficult to effectively protect the legitimate rights and interests of invested companies.
Thirdly, the patent enforcement right is a right attached to the patent right, because the patent enforcement right is in the nature of a creditor's right. Once the patent enforcement right holder is eliminated, the patent enforcement right will naturally be restored to the patentee.
Therefore, once the patent enforcement rights are invested in the invested company and the company is liquidated due to bankruptcy or dissolution, the patent enforcement rights will not become liquidation property, which will have adverse legal consequences for the company's creditors and other shareholders. The shareholders who bought shares with the right to implement the patent took back the right to implement the patent. This obviously violates the principle of fairness of the law.
3. Interest adjustment for changes in the value of patented technology after patent ownership
Patented technology is an intangible property. It must be combined with its production factors to reflect its value, and production The proportion of factors is a variable, so the value assessment of patented technology is relatively flexible, and it is often overestimated or underestimated. For patents that are overvalued, my country's "Company Law" stipulates that the shareholder who made the capital contribution must make up for the difference, and other shareholders at the time of the company's establishment shall bear joint and several liability.
There is no express legal provision when the value of patent rights is underestimated. The author believes that this situation can be solved in two ways:
First, adjust the interest relationship by expanding the equity ratio of patented technology shareholders;
Second, without expanding the In the case of patented technology shareholders' equity ratio, additional investment by other shareholders will be used to expand production scale, so that shareholders with patented technology shares will receive corresponding benefits
4. Taxes on patented shares.
According to the "Individual Income Tax Law of the People's Republic of China" and its Implementation Regulations and the State Administration of Taxation's "Reply on Individual Income Tax Issues Concerning Individuals Investing in Shares with Patent Rights and Obtaining Equity Shares by Transferring Patented Technology Ownership" "(Guo Shui Han [1998] No. 621)" (Guo Shui Han [1998] No. 621) stipulates that personal income tax shall be calculated and levied on the equity income obtained by a natural person investing in a company with the right to use his or her personal patented technology as a taxable item of "royalty income".
According to the "Notice of the Ministry of Finance and the State Administration of Taxation on Business Tax Issues Concerning Equity Transfers" (Caishui [2002] No. 191):
(1) Intangible assets, real estate Investor shares, participating in receiving profit distribution from investors, and jointly bearing technical capital risks, are not subject to business tax.
(2) No business tax is levied on equity transfers.
(3) Articles 8 and 9 of the "Commentary on Business Tax Items (Trial Draft)" (Guo Shui Fa [1993] No. 149) are hereby repealed.