Definition of non-patented technology investment

(1) Definition of non-patented technology The concept of non-patented technology is widely used in practice. The concept of "non-patented technology" was adopted in the proposal of the third amendment to China's Company Law, and this usage was deleted in the third amendment in 2005. Non-patented technology is a legal term in a non-strict sense, which is a general term for all technologies except patented forms. The concepts of non-patented technology, technological achievements and intellectual property overlap and are easily confused. "Non-patented technology" is a kind of property that investors can enjoy and ownership can be transferred. Therefore, "non-patented technology" does not belong to publicly known technology (publicly known technology is not anyone's property) and can be used as the capital contribution of shareholders. A concept similar to "non-patented technology" is "proprietary technology". As for proprietary technology, it refers to the technology with exclusive rights, which should be a bigger concept. According to patented technology and technical secrets, exclusive rights may arise. Strictly speaking, non-patented technology and proprietary technology are not equivalent concepts and should be distinguished theoretically. But in the practice of industrial and commercial registration, it is of little significance to distinguish between non-patented technology and patented technology. Therefore, starting from practice, this paper holds that "non-patented technology" is a specific legal concept with its specific legal meaning, which can be regarded as the object of ownership, equivalent to "proprietary technology" and "technical secret", not the symmetry of patented technology, and publicly published technology does not belong to non-patented technology. Non-patented technology refers to the technical secrets that have not been patented or patented and the technological achievements that are being patented, which are part of the technological achievements. The essence of "non-patented technology" is "proprietary technology" and "technical secret", so it has property value and can be invested at a fixed price. (2) Legal definition of non-patented technology investment 1. Provisions of the company law on non-patented technology investment. Article 27 of the Company Law stipulates the contribution of non-patented technology: "Shareholders can make contributions in cash, or in kind, intellectual property rights, land use rights and other non-monetary property that can be valued in money and transferred according to law; However, except for the property that cannot be used as capital contribution as stipulated by laws and administrative regulations. Non-monetary property as capital contribution shall be evaluated and verified, and its value shall not be overestimated or underestimated. If there are provisions in laws and administrative regulations on evaluation and pricing, such provisions shall prevail. " This provision is the most fundamental requirement for the registered capital of a company in China at present. Article 28 stipulates: "If capital contribution is made by non-monetary property, the transfer procedures of its property rights shall be handled according to law." Among the company forms stipulated in China's Company Law, limited liability companies are favored by small and medium-sized investors in practice because of their "characteristics" of capital cooperation and human cooperation, especially in the process of technology capitalization. In addition, although the non-patented technology investment in a limited liability company does not involve a wide range of public interests and creditors' interests like the technology investment in a joint stock limited company, the basic problems in investment are similar to the basic rights and obligations of non-patented technology investors. In addition, the promoters of a joint stock limited company can also contribute capital with intangible assets such as non-patented technology. 2. Provisions of the Law on Enterprises with Foreign Investment on the contribution of non-patented technology. Article 8 of the Law on Chinese-foreign Cooperative Enterprises stipulates: "The investment or cooperation conditions provided by Chinese and foreign parties may be cash, physical objects, land use rights, industrial property rights, non-patented technologies and other property rights". Article 22 of the Regulations for the Implementation of the Law on Chinese-foreign Joint Ventures stipulates: "A joint venturer may make capital contribution in cash, or in the form of buildings, factories, machinery and equipment or other materials, industrial property rights, proprietary technology and the right to use the site. At a fixed price. If buildings, factories, machinery and equipment or other materials, industrial property rights and know-how are used as capital contribution, the price shall be determined by the parties to the joint venture through consultation in accordance with the principle of fairness and reasonableness, or a third party agreed by the parties to the joint venture shall be hired for evaluation. " Article 25 of the Detailed Rules for the Implementation of the Law on Foreign-funded Enterprises stipulates: "Foreign investors can contribute their capital in freely convertible foreign currencies, or they can contribute their capital at a fixed price with machinery and equipment, industrial property rights and proprietary technology." By comparing the relevant provisions on the contribution of "non-patented technology", we can see that "non-patented technology" is "proprietary technology" and the known technology is not "non-patented technology" in the legal sense. Provisions of the State Administration for Industry and Commerce on the contribution of non-patented technology. Article 8 of the New Provisions on the Registration of Registered Capital of Companies, which was revised and implemented by the State Administration for Industry and Commerce on June 5438+1 October 2006, stipulates: "Shareholders or promoters can make capital contributions in currency, or they can make capital contributions in kind, intellectual property rights, land use rights and other non-monetary properties that can be valued in currency and transferred according to law. Where a shareholder or promoter contributes capital with property other than currency, physical objects, intellectual property rights and land use rights, it shall comply with the relevant regulations formulated by the State Administration for Industry and Commerce in conjunction with the relevant departments of the State Council. " 4. Provisions of judicial organs on the contribution of non-patented technology. The Supreme People's Court's Opinions on Correctly Handling Scientific and Technological Disputes defines the contribution of non-patented technology from a judicial perspective. Article 5 1 of the Opinions stipulates: "Non-patented technological achievements shall meet the following conditions: (1) technical scheme or know-how including technical knowledge, experience and information; (2) It is kept confidential, that is, it cannot be obtained directly from public channels; (3) it has practical value, that is, it can make everyone gain economic benefits or competitive advantages; (4) The owner has taken appropriate confidentiality measures and failed to provide them to others who have no agreed confidentiality obligations.