1. What is the transfer and license of patent right?
Patent transfer means that the patentee transfers all his patent rights to the assignee.
Patent licensing means that the licensor (that is, the patentee) allows the licensee to use its patent within a certain time and scope.
The transfer and license of patent right must be confirmed in writing. The establishment of a patent transfer contract must be registered and announced by the China National Intellectual Property Administration Patent Office before it can take effect. The transfer of the patent right of a unit owned by the whole people must be approved by the higher authorities. Units and individuals in China who transfer patent rights to foreigners must obtain the approval of the relevant competent authorities in the State Council.
Patent licensing, also known as patent authorization, usually appears in the form of written contracts, which are called patent licensing and patent authorization contracts. The conclusion and performance of this contract is also called licensing trade. It has the following characteristics:
(1) Patent license is based on the effective existence of patent right;
(2) Patent licensing is a transaction with the content of transferring the right to use a patent;
(3) The patent license is limited by the duration of the patent right;
(4) The licensed use of patent is restricted by the regional nature of patent right;
(5) Patent licensing is restricted by trade strategy, performance ability and sales organization;
(6) Patent licensing is restricted in trading partners, examination and approval procedures and legal adjustment.
2. What are the types of patent licensing?
The types of patent licensing can be divided according to their nature, scope and authority. According to the nature of license, it can be divided into contract license, planned license and compulsory license. According to the rights and scope granted by Licensor to Licensee, it can be divided into:
1, exclusive license
It means that the licensee not only has the right to implement a patented technology within the specified time and territory, but also has the right to refuse any third party, including all others including the licensor, to implement the technology within the specified time and territory.
2. Exclusive license
Also known as exclusive license, that is, in a certain area, the licensor only allows the licensee to exploit the patent in that area, but does not allow others to exploit it, but the licensor still has the right to exploit it in that area. That is to say, an exclusive license is basically the same as an exclusive license except that it cannot exclude the licensor's own implementation.
3. General license
Also known as non-exclusive license. It is a group of licensors, allowing the licensee to use a patent in a specified time and area, while the licensor still reserves the right to use the technology in the area and signs a license contract with a third party for the same technology.
4. Subordinate license
Also known as subordinate license. The licensee of this license may, with the consent of the licensor, license a third party to exploit its patent in its own name. The conditions of sub-licensing must be clearly stated in the licensing contract. If it is not stated, even an exclusive license cannot be considered as having a sub-license.
5. Cross-licensing
Also known as reciprocal license, mutual license and interchange license. It refers to a transaction in which two or more patentees grant each other the right to exploit their respective patents under certain conditions. Cross-licensing generally does not involve the payment of royalties, but is limited to the scope and duration of exchange technology. If the two patents are not equal in value, one of them can also give the other a certain compensation.
3. What is the procedure of patent licensing?
1, the choice of the parties
(1) licensor's choice of licensee: firstly, confirm the legal person qualification and business scope of licensee. If the licensee lacks the subject qualification of licensing trade and does not have the ability to engage in licensing trade according to its own will and conditions, it cannot become a trading partner. The second is to evaluate the implementation conditions and credit status of the licensee. The implementation conditions mean that the licensee has the production technology, raw materials, plant equipment, necessary production and operation technicians, effective operation mechanism and sales market network that are suitable for the use of patented technology. Credit status refers to the implementation sincerity and performance credibility of the licensee.
(2) Licensee's choice of licensor: Require licensor to guarantee that it is the real owner or owner of licensed patented technology; Analyze the strength of patent validity provided by licensor, the value of technology itself, market scale and long-term demand; Defining the scope of technical assistance, services and other aspects provided by Licensor for the implementation of patented technology; Examine Licensor's technical strength, business style and business habits.
2. Opportunity research
Opportunity research is to explore whether there is an opportunity to implement the envisaged patent project. The research results are expressed in the form of project proposal.
Opportunity research can be divided into two categories. One is "general opportunity research", which usually refers to the research to explore development opportunities based on regional, industrial or resource advantages. The other is "opportunity study of specific projects", which usually identifies the intention of the project from as much information as possible in "general opportunity study", such as various plans, statistics, research reports, etc., and transforms the intention into various factors worthy of further analysis and research. The intention of the project may be to improve, develop or develop the production and sales of a patented product, so the original intention of the project should be verified and revised by analyzing the information provided by planning, statistics and research reports.
In essence, opportunity research is to explore opportunities, that is, to verify whether there are opportunities to implement projects after research. If the opportunity exists, you can consider entering the feasibility study.
3. Feasibility study
Feasibility study is a single and comprehensive in-depth investigation, analysis and research on all the contents of the project, and puts forward a concrete and feasible project implementation plan.
Feasibility study generally includes the following contents: ① Overview and conclusion; ② Project background and history; ③ Market and project scale, including: demand and market analysis, product and sales forecast, production plan and production scale; (4) Raw materials and inputs, including: analysis and supply plan of inputs such as raw materials, auxiliary materials and power (utility system); ⑤ Site selection and site selection, including: site selection and site selection and environmental impact analysis; ⑥ Engineering, including: technology and equipment selection analysis, civil engineering coordination and engineering planning; ⑦ Project organization and management expenses; (8) Labor force, including: workers and staff; Pet-name ruby project implementation progress; Attending financial and economic analysis and evaluation.
4, evaluation and decision-making
The so-called evaluation decision is to analyze the proposed project in the whole economy and society, study the role, contribution and influence of the project on the economy and society, and then make a decision to implement or abandon the project.
5. Negotiate and sign contracts
Negotiation is the premise of signing a contract, and signing a contract is the result of negotiation. The negotiation process is a process in which both sides strive to find a compromise point acceptable to each other. Before the negotiation, it is necessary to draw up a negotiation plan and determine the overall goal, specific strategies, possible differences and solutions; We should be clear about which conditions can't be compromised and which conditions can be exchanged. When negotiating, we should make full use of all kinds of data and adopt flexible negotiation skills to strive for more benefits. When drafting contract terms, it is required to use concise words, rigorous structure, complete content, clear responsibilities and accurate legal terms. Before signing the contract formally, the text of the contract should be reviewed repeatedly to ensure foolproof.
6, contract approval and filing
A general patent licensing contract can take effect after being signed by the parties concerned; However, according to the detailed rules for the implementation of the Patent Law, it should be reported to the Patent Office for the record, and the licensing contract for foreign-related patents should be approved by the Ministry of Foreign Economic Relations and Trade or the foreign economic relations and trade departments, bureaus and commissions of provinces, municipalities, autonomous regions and cities with separate plans.
7, contract approval and filing
After the approval of this contract comes into effect, the specific affairs of implementing this contract will be carried out jointly by both parties. Due to the differences in the subject matter of different contracts and other aspects, there is no fixed model for the execution of contracts. The basic principle is that both parties should consciously fulfill their obligations under the contract.