How to calculate the royalty of patent license?
Royalty refers to a certain amount of royalties paid to the patentee by others other than the patentee when using the patent. The amount is determined by both parties through consultation in the implementation license contract, and the payment method is also determined through consultation between the user and the patentee. Both sides should hold a win-win attitude.
Hualvwang
How much is the royalty for the patent?
Since the patent right is an exclusive right, if the patentee permits others to use his patent, he can ask others to pay the patent license fee. Article 12 of China's patent law stipulates: "Any unit or individual who exploits another person's patent shall conclude a written exploitation contract with the patentee and pay the patentee the royalties. The licensee has no right to allow any unit or individual other than those stipulated in the contract to exploit its patent. " Therefore, it is reasonable for the patentee to ask others to pay the patent license fee in order to realize his economic interests. If another person uses another person's patent without paying the patent license fee, it constitutes patent infringement.
The patentee can ask others to pay the patent license fee, because he has made efforts and investment in the process of obtaining the patent. If others use the patent for free, the interests of the patentee will be harmed. The patentee invested in order to obtain the patent, so he took the risk of possible failure. Free use by others will lead to "hitchhiking". "If this phenomenon of' hitchhiking' is allowed, imitators can sell the same products at a lower price than innovators, thus pushing innovators out of the market." This is extremely unfair to the patentee, and his investment has no corresponding return. Under the condition of market economy, people invest in order to get corresponding returns. If there is no patent license fee, people will not actively invent and create to obtain patents. This is extremely unfavorable to scientific and technological progress and scientific research, and will eventually harm the overall interests of society. Therefore, it is beneficial to the patentee and the whole society to require the payment of patent license fees. Therefore, the use of other people's patents requires the payment of patent license fees, and the patentee has the right to ask others to pay his own royalties.
Determination of royalties:
Patent right is a kind of property right, and anyone who wants to implement patent right must pay royalties to the patentee. Of course, in practice, there are also cases where the patentee does not collect royalties through cross-licensing with others.
How to calculate the royalty reasonably is a very important but very difficult problem in the licensing contract. The determination of royalties depends on many factors, including:
(1) expenses incurred by the patentee in patent research and development;
(2) the economic benefits that the licensee can obtain by using the patent;
(3) Types, implementation methods and time limits of patent licensing;
(four) the way and time for the licensee to pay the royalties. In addition, whether there are alternative technologies in the market, before the crisis of technological improvement, the bargaining power of both parties is also a factor affecting the use fee.
According to the provisions of Article 325 of the Contract Law, the payment method of the use fee shall be agreed by the parties, which may be lump-sum payment or lump-sum payment, royalty payment or additional prepayment of the entry fee. If it is agreed to pay the royalties, the royalties may be calculated according to the product price, the newly added output value after the patent is implemented, the profit or a certain proportion of the product sales or other agreed ways. The proportion of royalty payment can be fixed, increasing year by year or decreasing year by year. Where royalty payment is agreed, the parties shall stipulate in the contract the method of consulting relevant accounting accounts.
Finally, the two methods have their own advantages and disadvantages. Finally, the patentee gets the money early and the risk is small, but it may need to pay more taxes. If the products sell well in the future, the patentee will not get additional benefits. Of course, if the products can't reach the expected sales volume in the future, this method will bring risks to the licensee. If the royalties are paid by installments, the risk borne by the licensee is relatively small, but if the sales of products in the future are very good, the patentee can get higher royalties. In many cases, royalties are paid by combining entry fees with royalties.