Article 25 of the Patent Law of People's Republic of China (PRC) stipulates: "No patent right shall be granted to the following items:
First, scientific discovery;
Second, the rules and methods of intellectual activities;
Third, the diagnosis and treatment of diseases;
Fourth, animal and plant varieties;
5. Substances obtained by nuclear transformation. The production method of the products listed in item 4 of the preceding paragraph may be granted a patent right in accordance with the provisions. "
The Supreme People's Court's "Provisions on Several Issues Concerning the Trial of Scientific and Technological Dispute Cases" stipulates that "non-patented technological achievements shall meet the following conditions:
(1) technical scheme or proprietary technology, including technical knowledge, experience and information;
(2) in a secret state, that is, it cannot be directly obtained from public channels;
(3) it has practical value, that is, it can make everyone gain economic benefits or competitive advantages;
(4) The owner has taken appropriate confidentiality measures and failed to provide them to others who have no agreed confidentiality obligations. "
The technology of an enterprise, as long as it has the above characteristics, is the non-patented technology of the enterprise.
Question 2: What is non-patented technology? Non-patented technology is also called proprietary technology. Refers to all kinds of technologies and proprietary technologies that are unknown to the outside world, have been adopted in production and business activities, do not enjoy legal protection, and can bring economic benefits. Investors can contribute non-patented technology, and the company enjoys the ownership of the technology after completing the property right registration formalities according to law. Need to be evaluated by relevant institutions.
Question 3: What are the technologies of "non-patented technology"? According to Article 43 of the Accounting System for Business Enterprises, "intangible assets" refer to non-monetary long-term assets held by an enterprise for producing goods or providing services, leasing them to others or for management purposes. Intangible assets are divided into identifiable intangible assets and unrecognizable intangible assets. Identifiable intangible assets include patent right, non-patented technology, trademark right, copyright, land use right and so on. Paragraph 2 of Article 44 "Intangible assets invested by investors shall be regarded as actual costs according to the value confirmed by investors", and Article 33 of the Detailed Rules for the Implementation of the Provisional Regulations on Enterprise Income Tax in People's Republic of China (PRC) "Intangible assets shall be amortized by the straight-line method. Intangible assets transferred or invested shall be amortized according to the principle of shorter legal validity period and benefit period stipulated in the contract or enterprise application; If the service life is not stipulated by law, it shall be amortized according to the benefit life applied by the contract or enterprise; The amortization period of intangible assets that are not stipulated in laws, contracts or enterprise applications, or that are developed by themselves, shall not be less than 65,438+00 years ".Article 22 of the Measures for Pre-tax Deduction of Enterprise Income Tax stipulates that the depreciation expenses of fixed assets, amortization expenses of intangible assets and deferred assets used by taxpayers in business activities can be deducted. The non-patented intangible assets invested by shareholders obtained by your company can be amortized in accordance with the above-mentioned relevant regulations, and the amortization expenses will be paid in the current year.
Question 4: What's the difference between patented technology and non-patented technology? Patented technology is protected. Only you or you allow others to use your own patented technology can others use it. Even if someone else develops it himself, he can't use it unless the patentee allows it. Non-patented technology is unprotected technology and anyone can use it.
Question 5: What are the requirements for non-patented technology investment? A technology meets the conditions for applying for a patent, and an application for a patent is a patented technology; But if you don't apply for a patent for various reasons, it is non-patented technology. Non-patented technology, also known as proprietary technology, refers to products or processes that have not been made public and are protected by industrial property law, as well as technical knowledge such as design, process flow, formula, quality control and management. Including unpatented technological achievements, unpatented technological achievements and unpatented technological achievements according to the patent law, high-tech achievements are included in the category of unpatented technological achievements. All countries' company laws recognize that shareholders contribute capital with non-patented technology, and our company law also recognizes it in an abstract form.
First, the definition of non-patented technology investment
(A) the definition of non-patented technology
The concept of non-patented technology is widely used in practice. The concept of "non-patented technology" was adopted in the third amendment proposal of China's Company Law, and this usage was deleted in the third amendment in 2005. Non-patented technology is a legal term in a non-strict sense, which is a general term for all technologies except patented forms. The concepts of non-patented technology, technological achievements and intellectual property overlap and are easily confused. "Non-patented technology" is a kind of property that investors can enjoy and ownership can be transferred. Therefore, "non-patented technology" does not belong to publicly known technology (publicly known technology is not anyone's property) and can be used as the capital contribution of shareholders.
A concept similar to "non-patented technology" is "proprietary technology". As for proprietary technology, it refers to the technology with exclusive rights, which should be a bigger concept. According to patented technology and technical secrets, exclusive rights may arise. Strictly speaking, non-patented technology and proprietary technology are not equivalent concepts and should be distinguished theoretically. But in the practice of industrial and commercial registration, it is of little significance to distinguish between non-patented technology and patented technology. Therefore, starting from practice, this paper holds that "non-patented technology" is a specific legal concept with its specific legal meaning, which can be regarded as the object of ownership, equivalent to "proprietary technology" and "technical secret", not the symmetry of patented technology, and publicly published technology does not belong to non-patented technology. Non-patented technology refers to the technical secrets that have not been patented or patented and the technological achievements that are being patented, which are part of the technological achievements. The essence of "non-patented technology" is "proprietary technology" and "technical secret", so it has property value and can be invested at a fixed price.
(B) the legal definition of non-patented technology investment
1. Provisions of the Company Law on non-patented technology investment. Article 27 of the Company Law stipulates the contribution of non-patented technology: "Shareholders can make contributions in cash, or in kind, intellectual property rights, land use rights and other non-monetary property that can be valued in money and transferred according to law; However, except for the property that cannot be used as capital contribution as stipulated by laws and administrative regulations. Non-monetary property as capital contribution shall be evaluated and verified, and its value shall not be overestimated or underestimated. If there are provisions in laws and administrative regulations on evaluation and pricing, such provisions shall prevail. " This provision is the most fundamental requirement for the registered capital of a company in China at present. Article 28 stipulates: "... if the capital contribution is made by non-monetary property, the transfer procedures of its property rights shall be handled according to law. "
Among the company forms stipulated in China's Company Law, limited liability companies are favored by small and medium-sized investors in practice because of their "characteristics" of capital cooperation and human cooperation, especially in the process of technology capitalization. In addition, although the non-patented technology investment in a limited liability company does not involve a wide range of public interests and creditors' interests like the technology investment in a joint stock limited company, the basic problems in investment are similar to the basic rights and obligations of non-patented technology investors. In addition, the promoters of a joint stock limited company can also contribute capital with intangible assets such as non-patented technology.
2. Provisions of the Law on Enterprises with Foreign Investment on the contribution of non-patented technology. Article 8 of the Law on Chinese-foreign Cooperative Enterprises stipulates: "The investment or cooperation conditions provided by Chinese and foreign parties may be cash, physical objects, land use rights, industrial property rights, non-patented technologies and other property rights". Article 22 of the Regulations for the Implementation of the Law on Chinese-foreign Joint Ventures stipulates: "A joint venturer may make capital contribution in cash, or in the form of buildings, factories, machinery and equipment or other materials, industrial property rights, proprietary technology and the right to use the site. At a fixed price. If buildings, factories, machinery and equipment or other materials, industrial property rights and know-how are used as capital contribution, the price shall be determined by the parties to the joint venture through consultation in accordance with the principle of fairness and reasonableness, or a third party agreed by the parties to the joint venture shall be hired for evaluation. " Article 25 of the Detailed Rules for the Implementation of the Law on Foreign-funded Enterprises stipulates: ..... >>
Question 6: Does intellectual property include non-patented technology? The following are seven kinds of trade-related intellectual property rights.
1 copyright, 2 patents, 3 trademarks, 4 trade secrets, 5 geographical indications, 6 new plant varieties,
7 integrated circuit layout design right.
Question 7: What is the difference between patented technology and non-patented technology? TRIPS agreements are collectively referred to as undisclosed information. The trade secrets protected by China's anti-unfair competition law include these two parts. In the past, technical secrets were called non-patented technologies in China, which was relative to patents. Later, after the promulgation of the contract law, different terms of patented technology and technical secret were used to replace non-patented technology.
In the legal sense, the past non-patented technology refers to technical secrets. If it does not constitute a technical secret, it cannot be protected. This clarifies the boundaries. In practice, there are indeed some well-known technologies that have been wrongly transferred as non-patented technologies.
Question 8: Is the proprietary technology non-patented? Proprietary technology is non-patented technology. For example, the formula of Coca-Cola.
Proprietary technology refers to the sum of professional knowledge, operating experience and technology in producing products.
Refers to the advanced and practical technical secrets that have not been patented, including design drawings, formulas, data formulas, and the experience and knowledge of technicians.
Question 9: Why is patented technology not an intangible asset, but non-patented technology an intangible asset? Patented technology is also an intangible asset, which is in the patent right. As follows: "(3) the transfer of patent right refers to the act of transferring the ownership or use right of patented technology."
Article 8 of the Notice of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) on Printing and Distributing Notes on Business Tax Items (Trial Draft) (Guo Shui Fa [1993] 149) stipulates that the transfer of intangible assets refers to the transfer of ownership or use right of intangible assets.
Intangible assets refer to assets that have no physical form but can bring economic benefits.
The collection scope of this tax item includes: land use right transfer, trademark right transfer, patent right transfer, non-patented technology transfer, copyright transfer and goodwill transfer.
(a) the transfer of land use rights refers to the transfer of land use rights by land users.
Business tax shall not be levied on the transfer of land use rights by land owners and the return of land use rights by land users to land owners.
Land lease is not taxed according to this tax item.
(two) the transfer of trademark rights refers to the transfer of trademark ownership or use rights.
(3) Patent transfer refers to the act of transferring the ownership or use right of patented technology.
(4) The transfer of non-patented technology refers to the act of transferring the ownership or use right of non-patented technology.
The act of providing technology without ownership shall not be taxed according to this tax item.
(5) Copyright transfer refers to the act of transferring the ownership or right to use a work. Works, including written works, graphic works (such as picture books and movie binding) and audio-visual works (such as movie soundtrack and video soundtrack).
(six) the transfer of goodwill refers to the transfer of the right to use goodwill.
Question 10: What are the characteristics of non-patented technology? Proprietary (proprietary) technology, with a certain technical content, is not easy to be imitated by others and is not suitable for patent application.
When you apply for a patent, you actually disclose your technical secrets, because you have to explain your technical characteristics and scope of protection. Patents are limited. In this way, one way is to use your patent with a new look during its validity period, and the other way is to use it directly after its expiration. Many core technologies generally do not protect themselves by applying for patents.