1. Does the technology transfer contract apply to the right of new plant varieties?
The transfer or license of the right to new plant varieties may refer to the provisions of the applicable technology contract.
Article 876 of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates that the transfer and licensing of intellectual property rights such as the exclusive right of layout design of integrated circuits, the right of new plant varieties and the copyright of computer software shall be governed by the relevant provisions of this section.
Second, the type of technology contract
1, technology development contract
Refers to the contract concluded by both parties on the research and development of new technologies, new products, new processes or new materials and their systems. Including commissioned development contracts and cooperative development contracts. A technology development contract shall be in written form. When transforming scientific and technological achievements with industrial application value, the parties may conclude a contract with reference to the provisions of the technology development contract.
2. Technology transfer contract
Refers to the contract concluded by the parties on the transfer of patent right, patent application right, non-patented technology transfer, patent licensing and technology introduction. Including patent right transfer, patent application right transfer, technical secret transfer and patent licensing contract. A technology transfer contract shall be in written form.
3. Technical consulting contract
Refers to a contract in which one party provides consulting services such as feasibility study, technical prediction, special technical investigation, analysis and evaluation report for a specific technical project, and the other party pays consulting remuneration.
4. Technical service contract
Refers to a contract concluded by one party to solve a specific technical problem for the other party with technical knowledge. It does not include survey, design, construction contracts and contracting contracts of construction projects.
Three. What are the definitions of technology transfer contract and technology licensing contract?
A technology licensing contract refers to a contract in which the obligee legally owns the technology and licenses the patents and technical secrets of this feature to others for use. A technology transfer contract refers to a contract in which the obligee who legally owns the technology transfers the technology to others.
According to Article 862 of the General Principles of Civil Law of People's Republic of China (PRC), a technology transfer contract refers to a contract in which the obligee legally owns the technology and assigns the related rights of the existing specific patent, patent application and technical secret to others.
A technology licensing contract refers to a contract in which the obligee legally owns the technology and licenses the related rights of the existing specific patents and technical secrets to others for implementation and use.
The clauses in the technology transfer contract and technology licensing contract that provide special equipment and raw materials for the implementation of technology or provide relevant technical consultation and technical services are an integral part of the contract.
Legal objectivity:
Applying for the right to new plant varieties can be started from three aspects: first, breeders should choose varieties with good development prospects. Because domestic enterprises need 6000 to 1 000 yuan to obtain a variety right, the cost of foreign enterprises' application is higher. And you have to pay an annual fee in the future. Compared with horticultural crops, flowers have more varieties, but the planting scale is limited and the cost is still relatively high. In addition, before applying, it is best to consult the variety rights agency about related matters to avoid detours. The organization has professionals who combine agronomy, horticulture, flowers, law and other majors. Moreover, the organization has the characteristics of information spirit, extensive contacts, strong professionalism and rich government resources. It can not only provide agency and consulting services for new variety rights, but more importantly, it can also serve as a technical intermediary to help variety owners to carry out specialized technical work such as the transfer, licensing, cooperation and development of variety rights. Followed by technical requirements. Whether a plant variety is a new variety must meet the following six conditions: ① it is in the protection list of new varieties of agricultural or forestry plants; (2) novelty; (3) have a proper name; ④ specificity; ⑤ consistency; ⑥ It has stability. Among them, specificity, consistency and stability (DUS for short) are essential for the review of new plant varieties. What needs to be emphasized here is the issue of novelty. The Regulations on the Protection of New Plant Varieties stipulates that new plant varieties granted variety rights should be novel. Novelty means that the new plant variety that applies for variety right has not been sold before the application date, or the sales in China with the permission of the breeder do not exceed 1 year; It has not been more than 6 years to sell the propagation materials of lianas, trees, fruit trees and ornamental trees abroad, and it has not been more than 4 years to sell the propagation materials of other plant varieties. However, some foreign flower varieties have been on the market for more than 10 years and have been widely recognized by the market. They want to enter the China market to apply for protection, which does not meet the requirements of China, so they cannot apply. For example, a Dutch enterprise applied to the Quality Assurance Office of the Ministry of Agriculture for the variety rights of seven chrysanthemum varieties, but it was rejected because it did not meet the novelty requirements. However, it is worth noting that according to the Detailed Rules for the Implementation of the Regulations on the Protection of New Plant Varieties (Agricultural Part), within two years from the date of publication of the catalogue, there is a four-year grace period for applying for novelty of new varieties, that is, varieties that have been publicly sold within four years before the application date (subject to invoices) can apply; Two years after the publication of the catalogue, only varieties sold within 1 year before the application date have the right to apply for protection. The third is about the core content of the application. Taking the application for protection of new agricultural varieties as an example, new varieties should have appropriate names when applying; The applicant shall clearly explain the source of the new variety, and describe and disclose the parent source, breeding methods and steps of the applied variety in detail in combination with the pedigree; When applying, the characteristics of similar varieties should also be described in detail; Similar varieties should have the closest morphological and botanical characteristics to the applied varieties and be related to the applied varieties, which are called existing varieties. In addition, when applying, it is also necessary to describe the sales situation, the specificity, consistency and stability of the new variety, the suitable planting area and the main points of cultivation. , and also provide photos.