1. As the object of the pledge contract, the patent right must first be a China patent right, that is, the patent right granted by the Chinese Patent Office in accordance with the Patent Law of People's Republic of China (PRC).
As we all know, patent rights are regional, that is, a patent right can only be valid within the geographical scope stipulated by the law granting patent rights, and it has no legal effect in any country or region outside the geographical scope stipulated by the law. Specifically, only the patent right granted by China Patent Office in accordance with the Patent Law of People's Republic of China (PRC) can be valid in People's Republic of China (PRC); On the contrary, the patent right granted by any foreign country or region according to the patent law of the country or region where it is located has no legal effect in People's Republic of China (PRC). This foreign or regional patent right is not an effective patent right for any unit or individual in China, so it cannot be used as the subject of the pledge contract. Of course, if a foreigner is granted a patent right by the Chinese Patent Office according to the provisions of China's patent law, it is still a valid patent right and can be used as the subject of a patent pledge contract.
2. As the object of the pledge contract, the patent right must still be within the protection period of the patent right stipulated by law, and the patent right beyond the protection period stipulated by law cannot be used as the object of the pledge contract.
1Article 45 of China's Patent Law, which came into effect in April 1985, stipulates: "The term of the invention patent right is 15 years, counting from the date of application. The term of patent right for utility model and design is 5 years, counting from the date of application. Before the expiration, the patentee may apply for a three-year extension. However, Article 45 of the revised Patent Law, which came into effect on 1 June 1993+10/October1,stipulates: "The term of the invention patent right is 20 years, and the term of the utility model patent right and the design patent right is 10 years, all of which are counted from the date of filing. "Therefore, whether the patent right that is the subject of the pledge contract is still within the protection period of the patent right depends on the specific circumstances. First, there are three kinds of patent rights stipulated in China's patent law: one is invention patent right, the other is utility model patent right, and the third is design patent right. The protection period of these three kinds of patents can be divided into two types: one is the protection period of invention patents, and the other is the protection period of utility model and design patents. Secondly, whether the patent right as the object of the pledge contract was obtained according to the patent application before 1993 1 or after 1993 1. If the patent right is obtained according to the patent application before 1 99365438+1October1,the protection period of the patent right shall be applicable to the patent law before the amendment; Where the patent right is obtained according to the patent application after 1 99365438+1October1,the protection period shall be governed by the revised patent law. However, the protection period stipulated in the patent law before and after the amendment is different.
3. As the subject of the pledge contract, the patent right must be a real patent right.
According to the provisions of China's patent law, an invention can only enjoy the patent right after it has been examined and approved by the China Patent Office. The invention-creation under examination cannot enjoy the patent right yet, so it cannot be used as the subject of the pledge contract. On the other hand, anyone who thinks that the patent granted by the Patent Office does not conform to the relevant provisions of the Patent Law within 6 months from the date when the Patent Office announced the grant of the patent right may request the Patent Office to revoke the patent right. Article 44 of the Patent Law stipulates that "the revoked patent right shall be deemed as nonexistent from the beginning". Therefore, the revoked patent right cannot be used as the object of the pledge contract.
In addition, six months after the patent office announced the grant of the patent right, any unit or individual may request the Patent Reexamination Board to declare the patent right invalid if it thinks that the grant of the patent right is not in conformity with the relevant provisions of the Patent Law. Article 50 of the Patent Law stipulates: "The patent right that has been declared invalid shall be regarded as nonexistent from the beginning." Therefore, the patent right that has been declared invalid cannot be used as the subject of the pledge contract.
Finally, the patent right that has been abandoned or regarded as abandoned cannot be used as the subject of the pledge contract. Paragraph 1, paragraph 2 of Article 47 of the Patent Law stipulates: "If the patentee waives his patent right in writing", his patent right shall be terminated from the date of announcement by the Patent Office. Paragraph 1 item 1 of the same article also stipulates that "if the annual fee is not paid on time", the patent right shall be deemed to be waived. The patent right deemed to be abandoned shall not have legal effect until it is restored.
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Subject matter of patent pledge contract