What will happen if the patent licensing contract is not filed?

The basis for claiming that the patent licensing contract is invalid because it has not been filed with the patent administrative department of the State Council is the provisions of Article 44 of the People's Republic of China (PRC) Contract Law (hereinafter referred to as the Contract Law) and the provisions of the second paragraph of Article 15 of the Detailed Rules for the Implementation of the People's Republic of China (PRC) Patent Law (hereinafter referred to as the Detailed Rules). The contents of these two articles are: "A contract established according to law shall take effect upon its establishment. Where laws and administrative regulations stipulate that examination and approval, registration and other procedures shall take effect, such provisions shall prevail "; "The patent licensing contract concluded between the patentee and others shall be filed with the patent administrative department of the State Council within 3 months from the date of entry into force of the contract". In the opinion of those who advocate that the patent licensing contract is invalid without filing, the patent licensing contract should be approved by the patent administrative department of the State Council before it can take effect. Actually, this is a misunderstanding. They regard this guiding clause as a mandatory clause that affects the effectiveness of the contract. In fact, the act of signing a patent licensing contract between civil subjects in China is a civil legal act as long as it does not violate the mandatory provisions of existing laws and administrative regulations in China and does not involve national security and social interests. And from the provisions of Articles 324, 342, 344 and 346 of China's contract law, filing with the administrative organ is not an effective requirement of the patent licensing contract. Article 12 of the Patent Law stipulates that any unit or individual who exploits another person's patent shall conclude a written license contract with the patentee and pay the patentee the patent royalties. The licensee has no right to allow any unit or individual other than those stipulated in the contract to exploit the patent. Accordingly, the patent law only requires that the patent licensing contract must be concluded in written form, and does not require filing. If we carefully analyze the provisions of paragraph 2 of Article 15 of the Detailed Rules for Implementation, we can also see that the filing behavior does not affect the effectiveness of the patent licensing contract. Let's take a look at this provision again: "The patent licensing contract concluded between the patentee and others shall be filed with the patent administrative department of the State Council within 3 months from the date when the contract comes into effect.". Please note that this provision requires that the time for filing the patent licensing contract with the patent administrative department of the State Council is within 3 months from the date when the contract comes into effect. That is to say, according to the provisions of this article, before the parties file with the patent administration department of the State Council, the patent licensing contract signed by both parties will take effect without other invalid circumstances. Moreover, this article does not stipulate what kind of legal consequences will occur if it is not filed. Then, there is no reason for a valid contract to be deemed invalid when laws and administrative regulations do not clearly stipulate that the contract is invalid without filing. Article 9 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Contract Law of People's Republic of China (PRC) stipulates: "According to the second paragraph of Article 44 of the Contract Law, if laws and administrative regulations stipulate that a contract shall go through the formalities of approval or approval and registration before it takes effect, and if the parties fail to go through the formalities of approval or approval and registration before the end of the debate in the court of first instance, the people's court shall consider that the contract has not taken effect; Laws and administrative regulations stipulate that a contract shall be registered, but it will not take effect after registration. If the parties fail to go through the registration formalities, the validity of the contract will not be affected, and the ownership and other property rights of the subject matter of the contract cannot be transferred. " Therefore, if a patent licensing contract is not filed with the patent administrative department of the State Council after it is concluded, its effectiveness will not be affected. As for the legal consequences, we should judge them according to the specific provisions of laws, administrative regulations and administrative rules. But so far, the author has not found such a rule. According to the legal principles of "no punishment is stipulated in the law" and "legal responsibility", if the legal norms do not clearly stipulate the consequences, it is impossible to make the actor bear the responsibility according to a general provision. At the same time, paragraph 2 of Article 15 of the Implementing Rules limits the filing period to three months after the patent licensing contract takes effect, which is also inappropriate. Because of this, people who don't understand the legal provisions or who have not filed within three months after the patent licensing contract comes into effect for some reason can't file again. If law enforcement agencies and judicial organs use this clause as the basis for restricting obligees in practice, this will lead to such a result. An effective contract will become invalid just because it is not filed within three months, which violates the principles of fairness, efficiency, honesty and credit and the requirements of market economy.