When evaluating the value of a patent right, there are three main factors that may affect its value:
(1) Legal factors. For example, the type of patent, the creativity of patent, the scope of patent right, the current legal status of patent right, the implementation of patent right, the macro-control of the country's overall economy and other economic, scientific and technological policies.
② Technical factors. For example, the maturity of patented technology, the difficulty of implementation, the development of the field and other capabilities and conditions needed for patent implementation.
③ Economic factors. For example, the cost, expected income, market factors and risks of patent creation. In addition to these factors, we should also consider the total number of other patents of the same type owned by the patentee, the growth rate of obtaining patents, the impact of patents on the industry, the number of citations, the life of patented technology and so on.
Evaluation agencies need to pay special attention to eight issues when evaluating the value of patent rights:
(1) Whether the pledged patent right has gone through the procedures of revocation, invalidity and objection, and whether the objection is declared invalid. If it has gone through revocation, invalidity and objection procedures, and the objection is declared invalid, the validity and reliability of the patent right as the pledge target are high, so its evaluation value should be high under the same conditions.
② What kind of patent is the subject of patent pledge? China's patent law stipulates three different patents, among which the design and utility model patents have not been substantially examined, and their effectiveness is generally not as good as that of the invention patents that have been substantially examined, so they cannot be treated equally with the invention patents when evaluating the value of the above two patents.
③ It must be confirmed whether the patent that is the subject of patent pledge belongs to basic patent or subordinate patent. According to the provisions of China's patent law, the implementation of the subordinate patent requires the permission of the basic patentee, and the obligee of the subordinate patent has no right to independently license a third party to exploit its patent. In this way, when evaluating the value of subordinate patents, we should pay special attention to the fact that the patent right of the basic patentee shall not be evaluated together with the patent right of the subordinate patentee. Of course, when the subordinate patentee makes a patent pledge loan here, the pledgor should truthfully inform the patentee of this situation, otherwise, when the pledge right needs to be realized in the future, the patent obtained by it will also be a "defective" patent for the new assignee.
(four) whether the obligee has paid the annual fee on time for the patent pledged by the patent right. Because according to the patent law, failure to pay the annual patent fee may lead to the revocation of the patent right. Although the law stipulates that there is a recovery procedure, it is very troublesome and there is a risk of irrecoverability. So we evaluate a patent that misses the annual fee, and the value will be lower under the same conditions.
⑤ How many years is the protection period of the subject patent pledged? According to the provisions of the Patent Law, the protection period of inventions is 20 years, and that of utility models and designs is 10 years, which cannot be extended. Therefore, the length of the remaining protection period is very important to the evaluation of patent value. The longer the residual protection period, the higher the value evaluation, and the shorter the residual protection period, the lower the value evaluation.
⑥ It is necessary to investigate the implementation of patent as the subject of patent pledge. Patent implementation can be divided into two types: the patentee's own implementation and the third party's implementation. Licensing the third party can be divided into exclusive license, exclusive license and general license. Different license types will also affect the evaluation of patent value. For example, when evaluating the patent value of exclusive license and exclusive license, its value will be greater than that of ordinary license. Because the licensee will only spend more license fees on patents with high reliability and good market prospects to obtain exclusive license or exclusive authorization.
⑦ The influence of patent license status as the subject of patent pledge on patent value evaluation. Generally speaking, a patent with a patent license certificate is more valuable than a patent without a license certificate; Patents with more authorization have higher evaluation value than patents with less authorization; For the same type of license, the patent with high license fee has higher evaluation value than the patent with low license fee.
8. Whether the patent right as the pledge has ever involved patent infringement litigation, patent ownership litigation, patent administrative litigation and other patent disputes. If you are involved in such a patent dispute, because the patent dispute lasts for a long time, there are many factors that affect the court's decision, which invisibly increases the risk of patent pledge loan. Therefore, when evaluating the patent value involved in patent disputes, its value will be lower under the same conditions.
(2) Improve the patent trading market.
When the patent pledgee fails to pay off the debt within the time limit, the patent pledgee or other guarantors of patent pledge need to auction the patent right, and the proceeds will be paid first, which requires a standardized and efficient patent trading market. Otherwise, for financial institutions, even if the patent right as collateral has high value, once the patent pledgee wants to realize his pledge right and auction the collateral, the pledged patent right may become worthless because of the lack of patent trading market. At present, China's patent trading market is not perfect and can't meet the development requirements of the knowledge economy era. Therefore, developing and perfecting the patent trading market is an important guarantee for developing patent pledge and promoting patent strategy in China. The author believes that the patent trading market can be developed and improved from three aspects:
① Make full use of the existing technology property rights trading market. With the proposal of the national intellectual property strategy, a number of technical property rights trading markets have been established all over the country. We should make full use of these technical property rights trading markets, and China National Intellectual Property Administration should establish a national specialized information base on patent rights. When an enterprise borrows a loan from a bank with a patent right as a pledge, when it goes through the registration formalities with the patent authority, the competent authority will immediately store the relevant records of pledge financing in the information base, so as to pay attention to the pledged patent right as soon as possible, reduce the future liquidation time and reduce the liquidation cost of the patent pledgee.
② Establish and improve the online patent trading market in China National Intellectual Property Administration. In the era of digital network, the patent trading market is more open, the update speed of pledged patent information is accelerated, and the patent pledge information is more comprehensive, timely and accurate. The patent rights that are the subject of pledge are classified and introduced in detail according to different professional and technical fields, so as to bridge the gap between consultants, banks and enterprises with patent rights and provide consulting services to further facilitate the transaction of patent pledge.
(3) Formulating and promulgating laws and regulations on patent market transactions in a timely manner. At present, patent transactions in China are all conducted in accordance with the provisions of the patent law, but in fact, the patent law only makes some principled provisions, and the relevant provisions on the specific operation of patent transactions are blank. Therefore, it is necessary to formulate unified laws and regulations on patent trading. Because at present, the contents of local technical transaction management regulations formulated by provinces and cities are very different. Due to the lack of unified, clear and standardized trading laws and regulations, the possibility of patent trading is too great. On the basis of learning from the experience of various cities, the State Patent Office should formulate and promulgate laws and regulations on patent trading as soon as possible, including the qualifications of subjects, trading procedures, intermediary services for intellectual property transactions, measures to promote and protect intellectual property transactions, and legal responsibilities.
(3) Improve the risk-taking operation mechanism of patent pledge loans.
From the experience of the United States and Japan, in the early stage of development, if the government can help improve credit or provide credit guarantee services, it can help technology enterprises to apply for loans from financial institutions with patent rights as a guarantee. The example of scholar digital library also tells us that if the third party's guarantee can be used reasonably in the patent pledge loan business, it may have an "immediate" effect on the patent pledge loan.
1. The government should set up a special credit guarantee institution.
Using patent rights as financing guarantee to help technology-based enterprises obtain funds in the process of development and further enterprise development, in addition to the demand of market economy and the supply-demand relationship between enterprises and financing parties, government policy help and support are also important factors for the smooth implementation of patent pledge loans. What the government can do in this regard is to provide real economic incentives, but providing economic incentives not only provides funds, but also includes policy support, such as providing credit guarantee services. As mentioned at the beginning of this article, the current situation in China is that financial institutions have sufficient funds. How can technology enterprises increase the confidence of financial institutions and make them willing to accept patent rights as a guarantee to give loans? Of course, it is not a short time to establish financial institutions' understanding of collateral such as patent rights, including understanding its value and risk avoidance. Therefore, at this stage, the government's encouragement and support is particularly important. At present, China's financial institutions do not know enough about the patent right, and they are still hesitant to accept the patent right as a guarantee. If the government can give appropriate credit guarantees to small and medium-sized science and technology enterprises at this time, it will greatly promote the business of using patent rights to handle loan guarantees. Therefore, the author suggests that the State Council and the governments of provinces, autonomous regions and municipalities directly under the Central Government can jointly contribute according to a certain proportion * * *, and set up a special fund for patent pledge with the province as the basic unit, and the government financial office and other fair and public welfare units will serve as specialized institutions for credit guarantee to provide credit guarantee services for patent pledge loans of small and medium-sized science and technology enterprises. In this way, when scientific and technological enterprises can't get the pledge financing from financial institutions or can only get a small amount of loans with patent rights due to the lack of tangible guarantees, they can apply for credit guarantees from credit guarantee institutions, thus increasing the confidence of financial institutions in the pledge loans of patent rights and enabling scientific and technological enterprises to successfully obtain the funds needed for enterprise development. At the same time, credit guarantee institutions can share the credit system of enterprises applying for patent pledge loans with the banking system through relevant measures, and input the relevant information of small and medium-sized technology enterprises applying for credit guarantee into the credit system. When the patent pledgee fails to repay the loan for a certain period (such as 3 months), the government guarantee institution will repay the bank loan with special funds first, and then obtain the right of recourse against the patent pledgee. At this point, the patent pledgee's breach of contract will be recorded in the credit information system shared with the bank. Such a bad credit record will have a serious negative impact on the defaulting enterprises to apply for guarantees from credit guarantee institutions or apply for loans from banks in the future. Therefore, the credit guarantee system provided by the government also invisibly increases the default cost of small and medium-sized science and technology enterprises, making them unwilling and afraid to default. Of course, this will also solve the worries of financial institutions and boldly issue loans to technology enterprises. At present, the guarantee provided by the government is the fastest and most effective way. At present, Haidian District and Foshan City in Beijing have issued special funds for discount of patent pledge loans. If these places can take the lead and further raise funds to provide guarantees for patent pledge loans, I believe that the patent pledge loan business will mushroome. It should be noted that the guarantee provided by the government is only a stopgap measure, and the long-term healthy development of the patent pledge loan system requires us to cultivate and improve the patent insurance system.
2. Improve the patent insurance system.
Due to the particularity of patent right, the general financier lacks confidence in the pledge of patent right, and the patent right is easy to be infringed, and it is also easy to infringe on the rights of others. Therefore, for financiers, the value of such collateral is easy to change, affecting their security rights, thus reducing the willingness of financial institutions to accept patent rights as security. If there is a kind of patent insurance in the market, the effectiveness of patent pledge can be appropriately extended to insurance money, which will undoubtedly increase the confidence of financiers and further increase the possibility of financial institutions accepting patent rights as collateral. As early as April 23rd, 2004, when the world intellectual property event was going on, Zhongguancun Intellectual Property Promotion Bureau and China People's Property Insurance Company Limited Shenzhen Branch successfully signed the Zhongguancun Intellectual Property Insurance Cooperation Framework Agreement, which marked the official start of Zhongguancun intellectual property insurance service system. The central topic of the agreement is the cooperation between the two parties to carry out insurance business for the transfer of patented technological achievements. Specific cooperation projects include: establishing a new intellectual property insurance mechanism with "knowledge-insurance cooperation" as the core; Taking the provision of supporting insurance services for patent pledge loans as the breakthrough point, we will provide insurance services for the patent technology industrialization project in Zhongguancun National Intellectual Property System Demonstration Park according to the package insurance plan for the transfer of high-tech achievements approved by the CIRC. * * * Participate in the construction of a circular chain of intellectual property industrialization, and act in concert to promote a virtuous circle of intellectual property output, transfer, industrialization and protection; Actively carry out other insurance business cooperation, provide supporting insurance services for the launch of GEM, and support high-tech enterprises to list in Zhongguancun Park; Take the lead in carrying out research and cooperation in the field of insurance intellectual property rights in China. It should be noted that at present, a series of expenses such as interest plus assessment fee 1.25% and attorney's fee 1.25% have already accounted for about 7.5% of the total loan. If the insurance fee is added, it may reach about 9%, which will make the cost of patent pledge loan almost twice that of ordinary commercial loans (about 5% of ordinary commercial loans). For small and medium-sized technology enterprises, Therefore, the author suggests that the government can expand the scope of the current patent pledge loan subsidy, from the original only subsidizing interest to including some intermediary fees.
Finally, it should be a systematic and long-term project to solve the current dilemma of patent pledge loans. For the employees of financial institutions, it is also essential to improve their understanding of patent pledge financing and further improve the legal system of patent pledge through systematic patent pledge course training. Only by effectively solving the problems of difficult evaluation, difficult realization of pledge right and high risk in China's patent pledge loan, can the bank's patent pledge loan business embark on the track of healthy development. It can be predicted that in the near future, this business will also be as "thriving" as China's property market, when a large amount of funds will flood into science and technology enterprises, the problem of low patent conversion rate will be fundamentally solved, and the strategy of strengthening the country through patents will finally be realized.