1On February 4th, 993, Tianjin Institute of Pharmaceutical Industry and Technology applied to China National Intellectual Property Administration for the invention patent of New Su Ming Capsule, a new traditional Chinese medicine for treating coronary heart disease and angina pectoris. Inventors are Gu Yun, Kang,,. At the same time, the early disclosure specification of the invention patent application was submitted. 1993 On April 13, Tianjin Pharmaceutical Industry Technology Research Institute signed a technology transfer agreement with Guangzhou Huacheng Pharmaceutical Factory. Both parties agree that Tianjin Institute of Pharmaceutical Industry and Technology will transfer the variety, prescription and production technology of new Su Ming capsules; Guangzhou Huacheng Pharmaceutical Factory paid the new Su Ming capsule technology transfer fee of 65,438+200,000 yuan to Tianjin Institute of Pharmaceutical Industry Technology. Tianjin Institute of Pharmaceutical Industry and Technology can only transfer one new Su Ming capsule in China for production, and shall not transfer it in any way or in disguised form. The above agreement has been registered for technical contract certification. (1) Because the patent is not authorized, this case is the transfer of the patent application right, which is similar to the patent transfer and is easily confused.
Case 2:
Discrimination: What is the difference between the transfer of patent application right and the transfer of proprietary technology? Let's look at a case. 1In June, 1987, the plaintiff Shanghai Dahua Chemical Light Industry Company (hereinafter referred to as Dahua Company) and the defendant Kong Dekai, director of a research institute in Wuxi, signed the Contract for Transfer of Patent Application Right for Safe and Energy-saving Electroplating Circulating Filter Heater. Both parties agreed that Kong Dekai transferred the patent application right of his service invention "Safe and Energy-saving Electroplating Circulating Filter Heater" to Dahua Company, which independently applied for the patent, and Kong Dekai gave up the patent application right (even though Dahua Company only paid Kong Dekai a patent application right transfer fee of 6,543,800 yuan, including 50,000 yuan in advance after the contract was signed and 50,000 yuan after the contract was notarized; After the contract comes into effect, Dahua Company will go to the notary office for notarization. The contract also stipulates that Kong Dekai has no right to ask Dahua Company to pay remuneration or bear the risk of economic return in the future, regardless of the economic benefits of Dahua Company in production. After the contract was signed, Dahua Company paid the transfer fee of 60,000 yuan to Kong Dekai twice, but failed to go through the notarization procedures as stipulated in the contract. Kong Dekai thinks that Dahua Company failed to pay the transfer fee as agreed, which is convenient for filing a patent application with China Patent Office in July. 1987. 1June, 988, Kong Dekai's patent application was published by China Patent Office. Accordingly, Dahua Company sued the Shanghai Intermediate People's Court, demanding that Kong Dekai return the transfer fee of 60,000 yuan and compensate the liquidated damages of 6,543,800 yuan.
In this case, although the contract stated "transfer of patent application right for safe and energy-saving electroplating circulating filter heater", the technical owner did not apply for the technical patent to China National Intellectual Property Administration before signing the transfer contract, but only after signing the transfer contract. Therefore, in essence, in this case, both parties transferred non-patented technology, that is, proprietary technology, instead of patent application right. The boundary between them lies in whether a patent application has been filed in China National Intellectual Property Administration. Proprietary technology must be the technology that takes safety measures.
Case 3:
1on may 27th, 993, Zhao Yingjun submitted a patent application to the state patent office for the "disposable multi-head dosing device" developed in his work practice. 1June 993 10, the state patent office issued a patent acceptance notice to Zhao Yingjun, confirming the application number as 933032803. 1On August 7th, 993, Zhao Yingjun decided to transfer the patent application right to Jialin Company after consultation with Changchun Jialin Medical Plastic Products Co., Ltd. (hereinafter referred to as Jialin Company), and both parties signed a contract for the transfer of patent application right. According to the contract, Zhao Yingjun transferred the patent application right of "one-time multi-head dosing device" to Jialin Company; Jialin Company paid the transfer fee of 654.38+ten thousand yuan to Zhao Yingjun, and paid 5,000 yuan before1August 24, 1993, and the remaining 95,000 yuan was paid within 15 days after Changchun Patent Office received the authorization notice; As of the effective date of this contract, Changchun Patent Office, the intermediary, shall go through the formalities for changing the patent applicant; If Jialin Company fails to pay Zhao Yingjun 95,000 yuan on schedule, this contract will be terminated at the same time, and Zhao Yingjun will go through the formalities of patent right change at the State Patent Office. After signing the contract, Jialin Company paid Zhao Yingjun 5000 yuan according to the time limit stipulated in the contract. Zhao Yingjun also delivered the Notice of Acceptance, the Patent Application for Design, the Design Drawing of the One-time Multi-head Dosing Device, the Design Brief and the Design Drawing to Jialin Company on August 24th as agreed in the contract. 199365438+On February 4, 2003, the State Patent Office issued a notice to Changchun Patent Office, granting the applicant Changchun Jialin Medical Plastic Products Co., Ltd. the patent right of "one-time multi-head dosing device". After receiving the decision notice, Jialin Company failed to pay the remaining transfer fee of 95,000 yuan to Zhao Yingjun as agreed in the contract. Therefore, Zhao Yingjun, the plaintiff, filed a lawsuit in Changchun Intermediate People's Court, claiming that Jialin Company failed to pay the transfer fee of 95,000 yuan within/0/5 days after receiving the acceptance notice as agreed in the contract, and asked the defendant to return the patent right of "one-time multi-head dosing device" to himself as agreed in Paragraph 2 of Article 9 of the contract.
This case is a contract dispute over the transfer of patent application right. The question involved here is whether the patent right should be returned if the patentee defaults. The transfer of the right to apply for a patent must sign a written transfer contract, and go through the formalities for changing the description items in China National Intellectual Property Administration, and it will take legal effect only after it is registered and announced in China National Intellectual Property Administration. In this case, Zhao Yingjun transferred the accepted patent application right of "one-time multi-head dosing device" to Jialin Company, and both parties signed a transfer agreement, in which it was clearly stipulated that the transfer fee was 654.38+10,000 yuan. Jialin Company failed to pay enough transfer fee as agreed in the contract, which is a breach of contract. According to the relevant provisions of the Contract Law, the patent should be returned. According to the judgment of the court, Zhao Yingjun can go through the formalities of changing the recorded items with China National Intellectual Property Administration again, thus becoming the real patentee.