What is a patent agency service contract?

1. According to the relevant provisions of the Contract Law, the main obligations of the Patent and Trademark Office as a trustee are as follows: 1. The trustee has the obligation to handle the entrusted affairs according to the instructions of the principal. Article 399 of the Contract Law stipulates this obligation of the trustee, that is, "the trustee shall handle the entrusted affairs according to the instructions of the principal. If it is necessary to change the client's instructions, it shall be approved by the client; If it is difficult to get in touch with the client due to an emergency, the trustee shall properly handle the entrusted affairs, but shall report the situation to the client in time afterwards. " When the trustee accepts the entrustment of the principal, the patent agency contract is established. Therefore, the trustee should meticulously carry out the instructions of the principal, earnestly safeguard the legitimate rights and interests of the principal within the scope authorized by the principal, and try his best to complete the entrusted affairs. The first duty of the trustee is to handle the entrusted affairs according to the instructions of the principal. In principle, the agent shall not change the instructions of the principal. In the process of handling the entrusted affairs, if the trustee needs to change the instructions of the principal in order to safeguard the interests of the principal due to changes in objective circumstances, the law stipulates that the consent of the principal should be obtained. 2. The trustee has the obligation to personally handle the entrusted affairs. Article 400 of the Contract Law stipulates this obligation of the trustee, namely: "The trustee shall personally handle the entrusted affairs. With the consent of the principal, the agent may delegate. If the entrustment is approved, the trustor may directly instruct the third party to entrust the entrusted affairs, and the trustee is only responsible for the entrustment and instructions of the third party. If there is no agreement on entrustment, the trustee shall be responsible for the behavior of the entrusted third party, except that the trustee needs to entrust in order to safeguard the interests of the principal in an emergency. " 3. The trustee has the obligation to report to the principal. Article 401 of the Contract Law stipulates this obligation of the trustee, namely: "The trustee shall report the handling of the entrusted affairs according to the requirements of the client. When the entrustment contract is terminated, the trustee shall report the results of the entrusted affairs. " According to this regulation, in the process of handling the entrusted affairs, the trustee shall report the progress of the affairs according to the requirements of the client and give instructions according to the requirements of the client. When the client terminates the contract, the agent shall also report the handling process and results as required by the client, and submit the necessary written materials and supporting documents. The trustee has the obligation to compensate the loss of the client. Article 406 of the Contract Law stipulates the obligations of the trustee, namely: "If the paid entrustment contract causes losses to the client due to the fault of the trustee, the client may demand compensation for the losses. If the gratuitous entrustment contract causes losses to the client due to the intentional or gross negligence of the agent, the client may demand compensation for the losses. " "The trustee exceeds his authority and causes losses to the client. Should compensate for the loss. " According to this provision, in judicial practice, it should be noted that (1) the trustee shall bear the responsibility on the premise of fault and loss. If there are losses, but the trustee is not at fault, he shall not be liable; Or the trustee is at fault, but has not caused losses, and does not have to bear the responsibility. The principle of liability of the trustee in the entrustment contract is the principle of fault liability, which is different from the general principle of liability for breach of contract, that is, strict liability. (2) The responsibility of the trustee varies according to whether the entrustment contract is paid or unpaid. In the paid entrustment contract, as long as the trustee is at fault in handling the entrusted affairs, he will be liable for compensation. A gratuitous entrustment contract, because the trustee has no remuneration, has a lighter responsibility than a paid entrustment contract. Only in the case of intentional or gross negligence, the trustee is responsible for damages. The so-called gross negligence means that ordinary people can foresee the harmful consequences of the act, but the trustee fails to foresee them due to negligence, which leads to the occurrence of harmful consequences. (3) If the trustee exceeds his authority and causes losses, he shall be liable for compensation. In the entrustment contract, although the trustee's authority is large, there is always a certain scope of authority. If the trustee exceeds his authority and causes losses to the client, he shall be liable for compensation, because exceeding his authority is a fault in itself. Some people think that if the trustee can prove that he is not at fault, he can be exempted from liability even if he exceeds his authority. This view is inappropriate. If the parties are allowed to prove that they are not at fault and justify their ultra vires behavior, then there is no need to entrust and set the scope of authority. What's more, if the trustee exceeds his authority, it will violate the principle of good faith and damage the trust of both parties. Two. Signing risk warning: 1. When concluding a patent agency contract, the client shall choose an agent with patent agency qualification, and no more than two patent agents shall represent the same patent application. 2. The contract shall specify the type of patent application. The types of patents currently protected by China's patent law are divided into invention patents, utility model patents and design patents. The scope and nature of these three patents are different, and the application procedures and difficulties are also different. Among them, the invention patent has the highest degree of protection, but the application for approval is the most stringent. It is easy to apply for utility model patent and design patent, but there are relatively few rights. Therefore, the entrusting party should comprehensively consider its own technological innovation degree and application cost to make a choice. 3. The patent application procedure is complicated and takes a long time. Therefore, the client should clearly stipulate the agency matters of the patent agent when concluding the contract. Because the broader the scope of authorization, the more matters involving the principal's immediate interests can be handled by the patent agent, so the principal should be cautious when setting the scope of authorization. 4. On the setting of technical confidentiality clauses. In the process of applying for a patent, a patent agent must know the technology before he can write the relevant materials of the patent application. Before obtaining the patent right, once the patent agent reveals the technical secrets of the client, it will seriously harm the interests of the client. Therefore, when concluding a patent agency contract, the client should protect his own interests through technical secret clauses or conclude a technical secret protection contract separately.