I. Materials to be prepared for patent right transfer
Patent right transfer contract and statement of change of specification items.
1. Fill in the patent transfer contract.
2. Fill in the "Description of Project Change Declaration".
Fill in the Declaration Form for Description of Project Change, and provide supporting materials for description of project change.
Project change documents and materials refer to:
1. If the right of the applicant or patentee is transferred due to the dispute over the ownership of the right, and the inventor is changed due to the dispute over the qualification, if the dispute is resolved through consultation, a right transfer agreement signed or sealed by all parties shall be submitted; If the dispute is determined by a judgment of the people's court, it shall be submitted to a legally effective judgment of the people's court. After receiving the written judgment, the Patent Office shall notify other parties to inquire whether to file an appeal. If there is no reply or no appeal within the prescribed time limit (two months), the judgment will take legal effect; If a party files an appeal, it shall issue a notice of acceptance of the appeal, and the original judgment of the people's court will never take legal effect.
If the dispute is decided through mediation by the local intellectual property office (or the corresponding functional department), the Patent Office shall notify other parties to inquire whether to bring a lawsuit to the court after receiving the mediation decision; If there is no reply or prosecution within the prescribed time limit (two months), the mediation decision will take legal effect; If a lawsuit is filed, the parties concerned shall issue a notice of court acceptance, and the original mediation decision shall have no legal effect.
2. Where the patent applicant or patentee requests to change the patent applicant or patentee because of the right transfer or gift, the original or notarized copy of the transfer or gift contract must be submitted; When a contract is concluded by a legal person, it must be signed or sealed by the legal representative or authorized person, and stamped with the legal person's official seal or special seal for the contract; Submit notarized documents when necessary. When concluding a contract, a citizen shall sign or seal it; Submit notarized documents when necessary. Where there is more than one patent applicant or patentee, the certification materials that all the obligees agree to transfer or give shall be submitted.
The transfer of patent application rights or patent rights involving overseas residents or legal persons shall comply with the following provisions:
(1) If both the transferor and the transferee are overseas residents or legal persons, the original or notarized copy of the transfer contract signed by both parties must be submitted to the Patent Office;
(2) If the transferor is a legal person or individual in Chinese mainland, and the transferee is an overseas resident or legal person, the approval document of the competent foreign economic relations and trade department of the State Council in conjunction with the administrative department of science and technology of the State Council, and the original or notarized copy of the transfer contract signed by the transferor and the transferee;
(3) If the transferor belongs to an overseas resident or legal person and the transferee belongs to a legal person or individual in Chinese mainland, the original notarized transfer contract signed by both parties shall be issued to the Patent Office;
(4) The procedures for changing the above-mentioned patent application right or description items of patent right transfer must be handled by the applicant or patentee of the assignor or the patent agency entrusted by him.
The overseas residents or legal persons mentioned in (1)-(3) above refer to foreigners, foreign enterprises, residents of Hong Kong, Macao and Taiwan or legal persons who have no habitual residence or business office in Chinese mainland; China residents or legal persons who have their habitual residence or business office in Chinese mainland may apply for patent application and patent transfer in accordance with regulations.
3. If the applicant or patentee is a legal person, a legally binding document must be issued for the explanation of project changes caused by its merger, reorganization, division, revocation, bankruptcy or restructuring.
4. If the applicant or the patentee inherits due to death, it shall submit the certificate issued by the notary office that the relevant party is the only legal heir or that the relevant party has included all legal heirs. Unless otherwise specified, the * * * successor shall * * inherit the patent application right or patent right.
Second, the procedures to be performed in the transfer of patent rights
Patent right is also a kind of property right. According to Article 10 of the Patent Law, "both the patent application right and the patent right can be transferred". Procedures for patent application right or patent right transfer:
1. Where an individual or unit (including units owned by the whole people and collectively) in China transfers the patent application right or patent right to a foreign country, it must be approved by the State Patent Office;
2. The transferor of the patent application right or patent right shall sign a written Transfer Contract with the transferee in accordance with the Patent Law and relevant laws;
3. Must apply to the patent administration department for identification registration;
4. Submit the Transfer Contract and the Statement of Change of the Filing Project to the State Patent Administration, and pay the fees at the same time. The transfer of the right to apply for a patent or the patent right shall take effect after the State Patent Office announces it in the patent bulletin.
Third, the patent transfer fee
1. Official fee. Payment of recording project change fee (200 yuan) shall be made within one month from the date of request.
2. Agency fee. If it is handled through an intermediary agency such as the Patent Office, please refer to the agency fee for the charging standard.
Iv. Patent Transfer Office of the Patent Office
You can go directly to China National Intellectual Property Administration or to the agency in China National Intellectual Property Administration.
Verb (abbreviation of verb) Matters needing attention in patent transfer
Patent right is the exclusive right granted by the state to the inventor or assignee for his invention and creation within a certain period of time. The patentee has the right to transfer his patent right. The person who obtains the patent right through the patent right transfer contract is also a legal patentee and enjoys all the rights of the patentee. The transfer of patent right involves not only the provisions of China's patent law and related laws and regulations, but also the legal fields such as contract law, and the process of its transfer can be said to be the process of contract negotiation. Patent transfer should pay attention to the following aspects.
1. Pay attention to the problem of the obligee, mainly depending on whether the transferor is the legal holder of the patent, whether there are any people, whether there is the nature of the service invention, and whether there are opinions on the examination and approval of the patents of state-owned enterprises.
2. Pay attention to the problem of the assignee, especially the transfer of patent rights by units or individuals in China to foreigners must be approved by the relevant competent authorities in the State Council.
3. Note that the transfer of patent right can only take effect after registration and announcement by the Patent Office.
4. The name, nature, content and ownership of the patent must be clearly defined in the patent transfer contract, and special attention should be paid to the protection period of the patent right.
5. In the patent transfer contract, it must be clear about the implementation of the patent before the transfer and the possible consequences. It should also be clearly agreed whether the transferor can continue to implement the technology under the patent after the patent transfer.
6.
Pay attention to the attribution of subsequent improvement technical achievements.
7. Due to the particularity that the patent right may be declared invalid, attention should be paid to clearly stipulate the legal consequences and possible responsibilities of breach of contract in the contract. Patent transfer may be declared invalid, which leads to great commercial risks. In our actual case, a series of disputes caused by invalidity are also common. If the prior agreement is not clear, it will be more complicated to deal with.