The patent pledge contract can be a separate written contract or a guarantee clause in the main contract. "China National Intellectual Property Administration patent pledge registration measures" provisions are as follows:
Article 9 The patent pledge contract submitted by the parties shall include the following contents related to pledge registration:
(1) The name and address of the party concerned;
(2) The type and amount of secured creditor's rights;
(3) The time limit for the debtor to perform the debt;
(4) The number of patent rights and the name, patent number, application date and authorization announcement date of each patent right;
(5) The scope of pledge guarantee.
Article 10 In addition to the matters specified in Article 9 of these Measures, the parties may agree on the following matters in the patent pledge contract:
(1) Pay the annual patent fee during the pledge period;
(two) the transfer of the patent right and the implementation license during the pledge period;
(3) Handling when the patent right is declared invalid or the ownership of the patent right changes during the pledge period;
(4) Delivery of relevant technical data when the pledge is realized.
The object of patent right is divided into three types: invention, that is, "a new technical scheme proposed for a product, method or its improvement"; Utility model, that is, "a new technical scheme for the shape, structure or combination of products", and appearance design, "refers to a new design for the shape, pattern, color or combination of products that is aesthetically pleasing and suitable for industrial application". Since there are three objects of patent right, the patent pledge contract should specify which patent is pledged, and its name and patent number, so as to avoid the situation that the terms are unclear and cannot be fulfilled.
Patent right is a collective concept, including the following rights: exclusive right, that is, the right of the patentee to exclusively use and finally dispose of his patent right, is the most basic right in patent right. Exclusive rights are divided into several items: the right to manufacture, use and sell its patented products, the right to use patented methods, and the right to manufacture and sell patented products for designs. Except for fair use, no one else may illegally exercise the patent right without the consent of the patentee.
The right of assignment, that is, the patentee has the right to assign his own patent by concluding a patent assignment contract in order to obtain economic benefits; Licensing right, that is, the patentee allows other units or individuals to implement his patent right in order to obtain economic benefits; The right to mark, that is, the right of the patentee to indicate the patent mark and patent number on his patented product or the packaging of the product, is a personal right; The right to import patented products refers to the right enjoyed by the patentee to prevent others from importing patented products or products directly obtained by patented methods for the purpose of production and operation, except as otherwise provided by law.
Therefore, the patent pledge contract should stipulate which rights or rights to pledge, and of course, the right to mark should not be used as the pledge target.
Patent pledge shall meet the following conditions:
(1) The patent right must be valid. Patent right is time-dependent. In order to ensure the realization of creditor's rights, it is necessary to ensure that the pledge is an undisputed and effective patent. Documents proving the validity of patent right include patent certificate, annual fee payment certificate, patent register, etc. The Measures for the Registration of Patent Pledge stipulates as follows:
Twelfth patent pledge registration application after examination, China National Intellectual Property Administration registration in the patent register, and send the "patent pledge registration notice" to the parties. The pledge was established when it was registered in China National Intellectual Property Administration.
Upon examination, it is found that in any of the following circumstances, China National Intellectual Property Administration made a decision not to register, and issued a Notice of Patent Pledge Not to Register to the parties:
(1) The pledgor is inconsistent with the patentee recorded in the patent register;
(2) The patent right is terminated or declared invalid;
(3) The patent application has not been granted a patent right;
(4) The patent right is in the late payment period of the annual fee;
(5) The patent right is declared invalid;
(6) The patent pledge procedure is suspended due to the dispute over the ownership of the patent right or the people's court ruling to take preservation measures for the patent right;
(seven) the time limit for the debtor to perform the debt exceeds the validity period of the patent right;
(eight) when the pledgee fails to pay off the debt at the expiration of the pledge contract, the patent right belongs to the pledgee;
(nine) the pledge contract does not conform to the provisions of article ninth of these measures;
(10) Pledge with * * * patent right, but without the consent of * * * owner;
(eleven) the patent right has applied for pledge registration and is in the pledge period;
(twelve) other circumstances that should not be registered.
(2) As a pledge, it is the transferable property right in the patent right, that is, the right with economic content arising from obtaining the patent right, which refers to the exclusive right and its derivative licensing right, transfer right and marking right.
Before the creditor's rights are paid off, the pledger shall guarantee the realization of the creditor's rights with all its pledges. (3) Although the right to apply for a patent is a prerequisite for obtaining a patent right, it can be transferred according to law, but its obvious legal uncertainty makes it impossible to be used as a legally effective property right, so the right to apply for a patent cannot be pledged as a pledge.
The pledgor must be a legitimate patentee. (1) The standard for determining whether the pledgor is "legitimate" is to see whether the valid certificate is consistent with the contents recorded in the patent document. Article 8 of the Interim Measures for the Administration of Patent Pledge Contracts stipulates that if the pledgor is not the patentee or not all the patentees recorded in the patent documents, the patent pledge contract shall not be registered.
If more than two patents are shared with the patentee, the pledgor shall be all the patentees. If it cannot be recognized by all patentees, the patent right cannot be pledged. (2) China units or individuals pledge patent rights to foreigners, which must be approved by the competent department of the State Council.
At the time of registration, the approval document of the relevant competent department of the State Council shall be submitted. (3) If the pledgor and pledgee are unfamiliar with the signing of the contract or patent affairs, they may entrust an agent to register the patent pledge contract. At the time of registration, not only the pledgor's legal identity certificate, but also the power of attorney and the agent's legal identity certificate should be submitted in accordance with the Interim Measures for the Administration of Patent Pledge Contracts.
2. Registration of patent pledge
(1) Registration procedure of patent pledge contract
The accepting department of the pledge contract registration application is the Patent Marketing Department of the Patent Office of China. The parties may register the pledge contract according to the following procedures:
① Sign a patent pledge contract.
(2) Submit the registration application form to the Chinese Patent Office, fill it in carefully, and sign and seal it.
The registration application form is uniformly printed by the China Patent Office.
③ Submit (by mail or in person) the following documents according to Article 6 of the Measures for the Administration of Registration of Patent Pledge Contracts: Application Form for Registration of Patent Pledge Contracts; Master contract and patent pledge contract; Legal identity certificate of the pledgor; Power of attorney and the identity certificate of the agent; Valid proof of patent right; The license for the implementation of the patent right before the pledge, and the approval documents of the superior competent department or the relevant competent department of the State Council; Other materials to be provided.
④ Pay the registration fee as required. The registration fee can be borne by both parties through consultation.
⑤ The parties have submitted complete application documents and the date of payment is the date of acceptance of the registration application, so the Patent Office starts the examination procedure to examine the registration application according to law.
⑥ If it is necessary to make corrections, the parties concerned shall make corrections according to the requirements of the notice of correction.
⑦ Whether the registration application is approved or not, the Chinese Patent Office will inform the parties of the examination results in the form of a notice.
(2) Go through the formalities for registration of change.
During the pledge period, the possible changes are as follows:
(1) Description of project change. At this time, the obligee's right to dispose of the right is restricted, so the request to change the recording project can only be made with the consent of both the pledgor and the pledgee.
When a party requests to change the description items, in addition to the documents required for the normal change procedure, it shall also submit a written document agreeing to the change agreement to the Chinese Patent Office, and the change procedure can be continued only after it is examined and approved by the patent administration department. Otherwise, it won't change.
② Changes in the contents of the pledge contract. Where the pledgee, the secured principal creditor's rights and the scope of pledge guarantee are changed and the pledge period is extended, the parties concerned shall submit the written agreement of the parties, the original notice of registration of patent pledge contract and other relevant documents to the Patent Office, fill in the Application Form for Registration Change of Patent Pledge Contract and report it to the Patent Office for examination.
(3) The role of patent mortgage contract registration documents and registers.
Once the patent pledge contract is accepted, the Patent Office will start the examination procedure and manage the whole pledge process through the registration management database. In addition, after examination and approval by the Patent Office, in addition to sending a notice to the parties, the following documents should also be stored in the registration documents: ① application form for registration of pledge contract; (2) An application form for registration change of the pledge contract; (3) application for cancellation of pledge contract registration; (4) Patent pledge contract; ⑤ Other relevant documents. The relevant contents in the registration document will be provided to the public in the form of a patent pledge contract register. By consulting the register, the public can know about the patent pledge before signing the patent pledge contract, and avoid repeating the pledge at the same time when signing the pledge desk. In addition, when accepting the transfer or license, the public can also consult the register to find out whether the suspended rights are pledged, so as to decide whether to accept the transfer or license. If the patent right is in the pledge period, any change to the pledged patent right must be agreed by both parties to the pledge contract, otherwise it will be invalid. After consulting the register, if the public needs to know the details of pledge registration, they can consult the original registration documents again.
(4) Cancellation of registration of patent pledge
The procedures for cancellation of pledge registration shall meet the following conditions: ① The parties request cancellation of pledge contract registration in advance due to early repayment of creditor's rights or other reasons;
② The patent right is invalid, revoked or lost for other reasons; ③ The pledge contract is invalid because the main contract is invalid; ④ The pledge period has expired;
⑤ Other reasons. In addition, if you submit false contract documents or illegally obtain or forge the registration of the patent pledge contract by other means, the relevant contract registration will be revoked according to law; The patent administration authority where the party concerned is located shall impose a fine of more than 1000 yuan and less than 10000 yuan.
Procedures for cancellation of registration of patent pledge: ① The parties concerned shall submit the notice of registration of patent pledge contract, the certificate of completion of contract performance, written agreement and other supporting materials to the Patent Office.
(2) After examination and approval by the Patent Office, a Notice of Cancellation of Registration of Patent Pledge Contract shall be issued to the parties concerned.
(3) After the expiration of the pledge period 15 days, if the parties fail to take the initiative to cancel the registration, the contract registration will be automatically cancelled. The date of cancellation of registration shall be subject to the validity period. The patent pledge contract shall be invalid from the date of registration and cancellation.
(4) After the debt is fulfilled, the pledgee shall return the patent certificate and other documents delivered by the pledger. If the debt has not been fulfilled, the pledge agreement can be discounted, or the pledge can be auctioned or sold according to law.