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. China's "Company Law" adopted the concept of "non-patented technology" in the third amendment proposal. In 2005? This usage was deleted in the third revision in 2006. Non-patented technology is a legal term in a non-strict sense. It is a summary of all technologies except the patent form. 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 non-patented technology investment. 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.
3.？ 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) 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.
Second, the problems existing in the registration of non-patented technology investment of foreign-invested enterprises
(A) the concept of non-patented technology is vague and difficult to identify.
Where a shareholder makes a contribution at the price of industrial property rights, the industrial and commercial authorities only need to examine whether the investor has relevant certificates. However, when shareholders invest in non-patented technology at a fixed price, it is difficult for the industrial and commercial authorities to accurately judge whether the technology invested as non-monetary property belongs to non-patented technology because it is a technical secret and does not need to apply for a patent or obtain a patent right. Moreover, at present, the use of the concept of "non-patented technology" in China is very confusing. Under the same background, "non-patented technology" and "proprietary technology" are used in legislation, but their meanings are not clearly explained in relevant legislation. The ambiguity and confusion of legislation make people have many differences on the meaning of non-patented technology, which makes it more difficult to judge whether a non-monetary investment belongs to non-patented technology investment.
(B) Non-patented technology investment is difficult to determine in place
Article 28 of the Company Law stipulates: "If a shareholder contributes capital with non-monetary property, he shall go through the formalities for the transfer of his property right according to law." It is often difficult for the industrial and commercial authorities to confirm how to transfer the non-patented technology to the newly established company truly and completely after evaluation. 1998 The Ministry of Science and Technology and the State Administration for Industry and Commerce jointly promulgated the Measures for the Implementation of Provisions on Several Issues Concerning the Contribution of High-tech Achievements to Shares, and Annex I of the Measures put forward clear requirements for the application materials for the examination and confirmation of the contribution of high-tech achievements, including the basic information of technological achievements, the rights of technology investors to the technology, and the relevant information about the contribution of technology to shares. However, in May 2006, the document was abolished. Since then, no relevant laws and regulations have clearly defined the determination of technology investment. Because there is no uniform standard, it is often difficult for industrial and commercial authorities to grasp it in practice, and the operation methods vary from place to place, which not only confuses enterprises, but also brings difficulties to the determination of non-patented technology investment, which easily leads to contradictions and disputes and brings risks of performing their duties. Therefore, it is necessary to clarify the norms of registration materials and ensure that the registration work has laws to follow.
(C) Non-patented technology investment risks are hard to avoid
Different from patented technology, non-patented technology has no special organ to register and manage it, which not only lacks authoritative ownership certification, but also makes it available to many people because of its invisibility. When there is competition for capital contribution, it often leads to ownership disputes and defects in capital contribution rights. In addition, due to the characteristics of non-patented technology, its life cycle and value are uncertain, which may lead to non-patented technology not meeting the requirements of the three principles of capital in practice, resulting in technical defects in capital contribution and harming the interests of companies and creditors. Therefore, non-patented technology investment has high legal risk, which is rare in investment practice, which greatly affects the ability of high-tech achievements to transform into real productive forces and is not conducive to the capitalization of technology. We should systematically and effectively stipulate the investment of non-patented technology in legislation, standardize the investment behavior, strengthen the protection of non-patented technology investors and reduce disputes.
(D) Non-patented technology investment materials are not standardized
At present, the Company Law and relevant laws and regulations have not made detailed provisions on how to submit application materials for the registration of non-monetary property investment, including non-patented technology, which leads to different standards for industrial and commercial authorities in specific practice, different regulations for the materials to be submitted for non-patented technology investment in various provinces and cities, and even the lack of unified norms between different districts and counties in the same city. This situation not only brings a lot of inconvenience to the applicants, but also is very unfavorable for preventing the registration risks.
Three. Suggestions on standardizing the registration of non-patented technology investment of foreign-invested enterprises
(A) accurate identification of non-patented technology
As mentioned above, in the registration practice of China's industrial and commercial authorities, it is not appropriate to strictly distinguish between non-patented technology and proprietary technology, but to unify them, which is of great significance for us to identify non-patented technology. Three characteristics of non-patented technology should be grasped in the process of specific identification. The first is to determine the practicality of non-patented technology. Non-patented technology used for registered capital contribution shall be practical, advanced and evaluable, and non-patented technology with backward technology and no practical value shall not be used for capital contribution; The second is to ensure the confidentiality of non-patented technology. As a technical secret, non-patented technology must be kept confidential. The technology that has been made public and widely known is not a technical secret, and the owner of non-patented technology must take appropriate measures to keep it confidential. The third is to determine the right attribute of non-patented technology. Since the non-patented technology is different from the patented technology, and there is no patent certificate issued by relevant departments, the ownership of the non-patented technology of the investor should be confirmed, and it is suggested that it can be reviewed from the aspects of technology research and development, technical data and technical confidentiality measures.
(two) to ensure that non-patented technology investment in place.
According to the understanding and practice summary of relevant laws and regulations, there are generally the following criteria to judge whether the non-patented technology investment is in place: (1) whether it has been reasonably evaluated and priced; (2) Whether it has been verified by an accounting firm; (3) Whether the two parties have reached an agreement and actually handed over relevant documents; (4) Whether other shareholders raise objections. Non-patented technology is an intangible asset. Before transferring the property to the company, we must first evaluate it. After the valuation, the accounting firm will verify the capital and confirm that the property right has been transferred; At the same time, the investor should sign an agreement or transfer document with the company (or shareholders) to clarify the rights and obligations of all parties, and all shareholders should also express their intention of approval, which should be clearly recorded in the company's articles of association and relevant resolutions; After that, the designated representative shall handle the industrial and commercial registration according to law with relevant materials.
(C) the prevention and control of non-patented technology investment risks
Judging from the subject qualification of the investor of non-patented technology, he should be the owner of non-patented technology. Article 27 of the Detailed Rules for the Implementation of the Law on Enterprises with Foreign Investment stipulates: "If a foreign investor contributes capital with industrial property rights and know-how, the industrial property rights and know-how shall be owned by the foreign investor"; Article 2 of "Several Provisions on the Contribution of All Parties to Sino-foreign Joint Ventures" also stipulates: "If the contribution is made in kind, industrial property rights or proprietary technology at a fixed price, the investor shall issue a valid certificate of ownership and disposal rights", and the user (beneficiary) of proprietary technology cannot become the subject of capital contribution. Before accepting the capital contribution, it should be examined whether the technology belongs to the job achievement, whether there is a third party claiming rights, and whether there is a lawsuit or potential lawsuit; The investor shall also make a legal commitment in advance to ensure that the technology does not have any right defects, and the shareholder's capital contribution is legal. After the capital contribution is clear, he will not continue to use or license others to use the proprietary technology for profit. In addition, it is very important and difficult to evaluate the capital verification of non-patented technology, because non-patented technology is a subject with uncertain value. Therefore, it is necessary to improve its evaluation and capital verification system, strengthen the supervision of evaluation and capital verification, and strictly control the confirmation of capital enrichment by the industrial and commercial departments during the registration process.
(four) standardize the non patented technology investment materials.
In view of the lack of material specifications for non-patented technology investment at present, it is suggested that the industrial and commercial authorities at higher levels should formulate unified specifications for submitting application materials according to the Company Law, the Regulations on the Administration of Company Registration and other laws and regulations, which should include but not limited to submitting non-patented technology investment commitment letter, non-patented technology investment resolution, non-patented technology investment documents, non-patented technology investment agreement, evaluation report and other application materials. The industrial and commercial authorities should strictly examine all the application materials for such registration, and ask the applicant to correct or complete the application materials if the expression is unclear or the materials are missing.
In recent years, the Industrial and Commercial Bureau of High-tech Zone (Huqiu) has formulated a set of application materials for non-patented technology investment on the basis of summarizing the registration practice, and put forward the principle of establishing the ownership of non-patented technology and the investment in place by notarization, which effectively reduces the contradictions and disputes caused by the identification of non-patented technology investment and greatly reduces the risk of industrial and commercial departments performing their duties in registration. Unless the investment is made by non-patented technology, it shall be submitted to the Regulations on the Administration of Company Registration and the State Administration for Industry and Commerce.
(1) The resolution that all shareholders (or the highest authority) of the invested company unanimously agree to contribute capital with non-patented technology (this resolution is mainly used to confirm the proposed amount of capital contribution and the mode of capital contribution with non-patented technology), and the company's articles of association need to specify the mode and amount of capital contribution with non-patented technology;
(2) The capital verification report generally needs to specify the mode and content of capital contribution, explain the assets appraisal result, appraisal institution and appraisal report number, confirm the appraisal result, and specify the appraisal price as the amount of capital contribution, so that the non-patented technology is transferred in place.
(3) The document that the non-patented technology owner unanimously agrees to contribute and the non-patented technology transfer agreement (if the company is not established, the non-patented technology owner shall sign an agreement with all shareholders; If a company has been established, an agreement shall be signed between the non-patented technology right holder and the company). In the investment agreement, it is generally necessary to reflect the following contents: ① The non-patented technology is really owned by the intended investor (or company) and is the only proprietary technology; (2) The technical amount has been confirmed by professional organizations (Chinese-foreign joint ventures can also negotiate the price or hire a third party to evaluate) and all of them have been invested in the company. ③ After the proprietary technology becomes the assets of the target company, all legal rights of the proprietary technology belong to the invested company.
(4) Notarization documents mainly notarize the ownership of non-patented technology owners and technology investment transfer agreements. Confirming ownership and investment in place through legal third-party notarization is of great help to reduce disputes and contradictions in non-patent investment.
In addition, we often encounter the problem of how to define the mode of investment in the process of foreign certificate patent technology registration. In daily registration, we are divided into three categories:
(1) If a foreign patent certificate has been changed by a foreign patent office, registered in the name of the invested company, notarized by a foreign notary office, and certified by the Chinese embassy or consulate in that country, we will register it as a patent contribution without submitting investment agreement, notarial certificate and other materials;
(2) If a foreign patent certificate has not been registered in a foreign patent office or registered in a Chinese patent office to change its ownership, if the owner contributes as proprietary technology and provides the corresponding registration materials, we will allow it to be registered in the form of non-patented technology contribution on the premise that the owner notarizes that the delivered proprietary technology has no right burden and the third party cannot claim the rights of the technology used for contribution.
(3) Foreign patents have been recognized by China's Intellectual Property Office, and the China patent certificate has been re-issued, which should be registered in the form of patent contribution.