Article 25 of the Patent Law of People's Republic of China (PRC) stipulates: "No patent right shall be granted to the following items:
First, scientific discovery;
Second, the rules and methods of intellectual activities;
Third, the diagnosis and treatment of diseases;
Fourth, animal and plant varieties;
5. Substances obtained by nuclear transformation. The production method of the products listed in item 4 of the preceding paragraph may be granted a patent right in accordance with the provisions. "
The Supreme People's Court's "Provisions on Several Issues Concerning the Trial of Scientific and Technological Dispute Cases" stipulates that "non-patented technological achievements shall meet the following conditions:
(1) technical scheme or proprietary technology, including technical knowledge, experience and information;
(2) in a secret state, that is, it cannot be directly obtained 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. "
The technology of an enterprise, as long as it has the above characteristics, is the non-patented technology of the enterprise.
Question 2: What is non-patented technology? Non-patented technology is also called proprietary technology. Refers to all kinds of technologies and proprietary technologies that are unknown to the outside world, have been adopted in production and business activities, do not enjoy legal protection, and can bring economic benefits. Investors can contribute non-patented technology, and the company enjoys the ownership of the technology after completing the property right registration formalities according to law. Need to be evaluated by relevant institutions.
Question 3: What's the difference between patented technology and non-patented technology? Patented technology is protected. Only you or you allow others to use your own patented technology can others use it. Even if someone else develops it himself, he can't use it unless the patentee allows it. Non-patented technology is unprotected technology and anyone can use it.
Question 4: What is the difference between patented technology and non-patented technology? 5 points Non-patented technology is also called proprietary technology. Refers to all kinds of technologies and proprietary technologies that are unknown to the outside world, have been adopted in production and business activities, do not enjoy legal protection, and can bring economic benefits. Non-patented technology generally includes industrial know-how, commercial trade know-how and management know-how.
Patented technology refers to the technology that has been patented. No one else may use it without the permission of the patentee. Patent law protects the rights and interests of patentees from infringement.
Question 5: For example, what belongs to non-patented technology, such as patent, has different protection years according to different types, including 20 years for medicine, 0/0 years for electronics, and 50 years for culture. After this period, it can be used universally, and it is not illegal to pay patent fees.
Question 6: What are the technologies of "non-patented technology"? According to Article 43 of the Accounting System for Business Enterprises, "intangible assets" refer to non-monetary long-term assets held by an enterprise for producing goods or providing services, leasing them to others or for management purposes. Intangible assets are divided into identifiable intangible assets and unrecognizable intangible assets. Identifiable intangible assets include patent right, non-patented technology, trademark right, copyright, land use right and so on. Paragraph 2 of Article 44 "Intangible assets invested by investors shall be regarded as actual costs according to the value confirmed by investors", and Article 33 of the Detailed Rules for the Implementation of the Provisional Regulations on Enterprise Income Tax in People's Republic of China (PRC) "Intangible assets shall be amortized by the straight-line method. Intangible assets transferred or invested shall be amortized according to the principle of shorter legal validity period and benefit period stipulated in the contract or enterprise application; If the service life is not stipulated by law, it shall be amortized according to the benefit life applied by the contract or enterprise; The amortization period of intangible assets that are not stipulated in laws, contracts or enterprise applications, or that are developed by themselves, shall not be less than 65,438+00 years ".Article 22 of the Measures for Pre-tax Deduction of Enterprise Income Tax stipulates that the depreciation expenses of fixed assets, amortization expenses of intangible assets and deferred assets used by taxpayers in business activities can be deducted. The non-patented intangible assets invested by shareholders obtained by your company can be amortized in accordance with the above-mentioned relevant regulations, and the amortization expenses will be paid in the current year.
Question 7: What are the requirements for non-patented technology investment? A technology meets the conditions for applying for a patent, and an application for a patent is a patented technology; But if you don't apply for a patent for various reasons, it is non-patented technology. Non-patented technology, also known as proprietary technology, refers to products or processes that have not been made public and are protected by industrial property law, as well as technical knowledge such as design, process flow, formula, quality control and management. Including unpatented technological achievements, unpatented technological achievements and unpatented technological achievements according to the patent law, high-tech achievements are included in the category of unpatented technological achievements. All countries' company laws recognize that shareholders contribute capital with non-patented technology, and our company law also recognizes it in an abstract form.
First, the definition of non-patented technology investment
(A) the 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 third amendment proposal of 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.
(B) the 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 the 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: ..... >>
Question 8: What is the difference between patented technology and non-patented technology? TRIPS agreements are collectively referred to as undisclosed information. The trade secrets protected by China's anti-unfair competition law include these two parts. In the past, technical secrets were called non-patented technologies in China, which was relative to patents. Later, after the promulgation of the contract law, different terms of patented technology and technical secret were used to replace non-patented technology.
In the legal sense, the past non-patented technology refers to technical secrets. If it does not constitute a technical secret, it cannot be protected. This clarifies the boundaries. In practice, there are indeed some well-known technologies that have been wrongly transferred as non-patented technologies.
Question 9: Why are non-patented technologies assets? Intangible assets refer to identifiable non-monetary assets that have no physical form and are owned or controlled by enterprises.
If an asset meets one of the following conditions, it meets the identifiability standard in the definition of intangible assets:
1, which can be separated or split from the enterprise and can be used for sale, transfer, license, lease or exchange alone or together with related contracts, assets or liabilities.
2, from the contract rights or other legal rights, regardless of whether these rights can be transferred or separated from the enterprise or other rights and obligations.
Intangible assets mainly include patent right, non-patented technology, trademark right, copyright, land use right, franchise and so on.
The existence of goodwill is inseparable from the enterprise itself, which is unrecognizable and does not belong to the intangible assets referred to in this chapter.
Intangible assets can be divided into broad sense and narrow sense. Intangible assets in a broad sense include monetary funds, accounts receivable, financial assets, long-term equity investment, patent rights, trademark rights and so on. Because they have no material entity, they show some legal rights or technologies. But intangible assets are usually understood in a narrow sense in accounting, that is, patent rights and trademark rights are called intangible assets.
Non-patented technology meets these two criteria, so it is also an intangible asset.
Question 10: What does the term resale of non-patented technology mean? Hello, the patent information you want to inquire about the resale of non-patented technology can be found on this webpage.
1, Baidu "patent search" will have many search websites. Such as patent search and inquiry in China National Intellectual Property Administration.
2. After entering the China National Intellectual Property Administration patent retrieval webpage, enter the "China patent inquiry system".
3. If there is no electronic application account for the time being, enter the public * * * query.
4. Click "Agree" to enter the query page.
5. Patent search can be carried out by such criteria as "patent number, patent name and authorization date". If you want to check the copy, you can enter keywords in the patent name. For example, if you want to apply for a wristband-related patent, you can enter "wristband" and click to claim it. Then you need to patiently look at it one by one to see if there are any similar ideas with you.
If you encounter problems in operation or other intellectual property-related problems, you can search our website and continue to consult us.