The new Company Law, which came into effect on June 5438+1 October1,2006, stipulates that shareholders can contribute their capital in kind, intellectual property rights, land use rights and other non-monetary properties. , can be valued in money, can be transferred according to law, and the patent right belongs to a kind of intellectual property rights, and it is a form clearly stipulated by law to invest in patented technology. Patented technology shares, refers to the patented technology as the property price, in the form of investment shares and other forms of property (such as currency, physical objects, land use rights, etc.) shares. ) Joint establishment of a limited liability company or a joint stock limited company according to legal procedures. The new Company Law has made many changes in many fields, such as company investment. Therefore, combining the legal provisions of the two, we should pay attention to the following aspects in the operation of patent technology shareholding:
1. There are two important prerequisites for taking shares in patented technology. First, the patent has obtained the patent certificate issued by the State Patent Office and is still within the patent validity period; Second, the person who shares in the patented technology must be the legal right holder of the patent.
2. The forms of patent technology shares, including patent ownership shares, patent licensing rights shares and patent application rights shares, are also regarded as patent technology shares with a fixed price. The above three ways of capital contribution are legal and feasible, but in practice, there are still some legal obstacles in dealing with some problems, such as the evaluation and pricing of patent exclusive license rights and the completion of capital contribution obligations, so the latter two ways are rarely used in practice. When signing an investment agreement, it is best to define the patented technology as the form of shares. In order to reduce disputes, patent ownership should be the first choice.
3. When taking shares in patented technology, we should also consider defining the contract terms such as the transfer of technical data and rights, the technical training and guidance of the patentee, the attribution of subsequent improvement results and the liability of each party for breach of contract.
4. In order to become a shareholder with patent ownership, the following capital contribution procedures must be completed before the capital contribution is correct. First, we must evaluate the value of the patent. Although there is no uniform standard for the evaluation and pricing of patent ownership, it can be evaluated by professional appraisers according to the technical content, life cycle and life stage of the cycle. Then the patentee goes to the Patent Office to register and announce the transfer of the patent right according to the contract and articles of association for establishing the company, and the industrial and commercial registration authority determines the obligation of the shareholders who contribute the patented technology to complete the investment according to the procedures for the transfer of the patent right.
5, patent shares need to pay special attention to the reliability of patented technology and the timeliness of patent rights. Due to the limitation of document keeping and negligence in the work of the patent office, it is possible to grant a patent right to a technology that does not have the patent conditions. In addition, there is no substantive examination of utility model patents and design patents, so the law stipulates that any unit or individual can apply for patent invalidation. Once it is declared invalid, it does not have the property of real right and cannot be used as a technology for shareholding. Therefore, it is very necessary to examine and retrieve the patent before signing the agreement, and stipulate the relationship between shareholders and between shareholders and the company after the patent is declared invalid or the rights are terminated in the contract.
6. The proportion of patent investment has increased. China's original Company Law stipulated that the contribution of intangible assets should not exceed 20% of the registered capital, and the proportion of intangible assets recognized as high-tech enterprises was 35%. Therefore, in the past, intangible assets will not become absolute controlling shareholders, but can only be in a subsidiary position in corporate governance. However, according to the new company law, the proportion of intellectual property investment can reach at most 70%, and it can become an absolute controlling shareholder. When signing a capital contribution agreement with patented technology, the investor shall specify his rights and obligations to manage the company after its establishment and the way to obtain the company's profits. Because the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Technology Contract Disputes stipulates that if the parties enter into a joint venture contract by means of technology shares, but the technology shareholders do not participate in the operation and management of the joint venture, and agree that the joint venture or the joint venture will pay its technology price or use fee in the form of guarantee clauses, it is regarded as a technology transfer contract. If the party who shares in patented technology does not carefully consider the content of this clause, it may lead to its loss of shareholder status.
7. You don't have to pay business tax if you use patented technology to buy shares. China's "Notes on Business Tax Items" stipulates that intangible assets participate in the profit distribution of receiving investors and bear investment risks, so business tax is not levied. However, when transferring equity, it shall be taxed according to business tax.
8. When buying shares in patented technology, how to divest or transfer the equity must also be taken into account. The amount of technical input is determined by professional evaluation. If technical shareholders want to transfer their equity or withdraw their funds in the future, how to determine the price of equity transfer will be a very important issue. It is suggested that when formulating the articles of association, how to calculate equity transfer price when withdrawing shares or transferring shares should be clearly stipulated to avoid disputes in the future.