At present, most intellectual property evaluations adopt the income method. The prediction calculated by the income method is based on the effect of intellectual property implementation under the influence of many factors. As far as patents are concerned, the main influencing factors include legal factors, technical factors, industrial factors, special factors, etc.
1. Legal factors
Mainly include: (1) Completeness of ownership, that is, the completeness of the ownership of the patent owned by the patentee or client. The more complete the ownership, the greater the value it embodies. (2) The degree of legal protection, including two aspects, the status of the patent and the completeness of the claims. The status of a patent refers to the status of the technology in the patent application, whether it is in the preliminary examination stage, the substantive examination stage or the stage of obtaining a patent certificate. The later the stage, the greater its value. Different types of patents have different levels of protection. Since invention patents have passed substantive examination, they are less likely to plagiarize other people's patents or be revoked after obtaining a patent certificate. Compared with the other two types of patents, their technical content is higher, the application cycle is longer, and the rights holders bear greater risks, so their value is relatively high. The completeness of claims refers to the scope of the patent that needs to be protected as stated in the patent application claims. It also reflects the quality of the claims. Some claims are complete and better protect the rights of the patentee. Some claims are incomplete and only protect part of the rights of the patentee. (3) The remaining useful life is generally determined by taking the shorter of the economic life of the patented technology and the legal useful life. The longer the useful life, the greater its value.
2． Technical factors
Technical factors mainly include the degree of innovation of the patent, that is, the advanced degree of the technology; the development stage of the technology; technological competitive advantage, that is, the existence of key technical know-how in the process of technology implementation, and the high degree of technical complexity. And this technical know-how is not easy to analyze, test, and simulate. Because technology excess returns are mainly reflected in its monopoly profits, the more competitive the technology is, the higher its degree of monopoly, the market share of technology products will be correspondingly higher, and technology products will be more difficult to replace.
3． Industrial factors
Mainly include (1) degree of industrialization, that is, how easy it is to industrialize the technology, and whether the conditions for implementation are harsh. The easier it is to industrialize, the easier it is to implement patented technology. The more likely it is that the patent will be enforceable. (2) National policy adaptability, that is, the consistency between the industry where the technology is implemented and the national industrial policy. Only when the patent is consistent with the national industrial policy will it receive national and local support, and the patent will quickly form an industry. The more the industry is encouraged by the state, the faster the value of technology implementation can be brought into play. (3) Industrial application scope mainly refers to the size of the current and possible future application fields of the patented technology. The wider the application scope, the greater its value. (4) The degree to which technical products are accepted by the market. The more the market needs the product, the greater the value embodied in the technology.
4. Special factors
Special factors in some industries, such as drug certificates in the pharmaceutical industry, clinical trials, and relevant approval certificates for network security technology, also have a significant impact on the value of patent rights. , because these special factors are essential requirements for the industrialization implementation of patented technology.
The above factors should be taken into consideration when evaluating intellectual property rights, and they are also the key to the future value of intellectual property rights.
Patent investment and shareholding process
1. Patent investment and shareholding process.
Investment of shares through patent investment requires evaluation by a specific asset appraisal agency. Patents, as a kind of intellectual property, can be used as a form of investment for enterprise establishment through monetary valuation, and must be handled in accordance with prescribed procedures.
1. The shareholders *** sign the company's articles of association and agree on the amount and method of each other's capital contribution.
2. The patent owner shall legally entrust an asset appraisal agency established with the approval of the financial department to conduct an evaluation and handle the registration and announcement procedures for changes in patent rights.
3. Issue the corresponding evaluation report during industrial and commercial registration, the written opinions of relevant experts on the evaluation report, the business license of the evaluation agency, and the patent transfer procedures.
4. Foreign joint venturers that use industrial property rights or proprietary technologies as capital contributions shall submit relevant information on the industrial property rights or proprietary technologies, including copies of patent certificates or trademark registration certificates, their validity status, and their Relevant documents such as technical characteristics, practical value, calculation basis for pricing, pricing agreement signed with the Chinese joint venturer, etc., shall be included as attachments to the joint venture contract.
2. Several issues regarding patent investment and equity participation.
Article 27 of the "Company Law" "Shareholders may make capital contributions in currency, or in kind, intellectual property rights, land use rights and other non-monetary properties that can be valued in currency and transferred in accordance with the law; However, except for properties that are not allowed to be used as capital contributions according to laws and administrative regulations, non-monetary properties that are used as capital contributions must be appraised and valued, and the property must not be overvalued or undervalued. If laws and administrative regulations have provisions on valuation, those provisions shall prevail. The amount of monetary contributions by all shareholders shall not be less than 30% of the registered capital of a limited liability company. "
Article 7 of the "Company Registered Capital Registration Management Regulations" is the non-monetary property contributed by shareholders or promoters. , the capital should be verified by a capital verification agency after the valuation is made by an asset appraisal agency with appraisal qualifications. Article 8 Shareholders or promoters may make capital contributions in currency, or in kind, intellectual property rights, land use rights and other non-monetary properties that can be valued in currency and transferred in accordance with the law. If shareholders or promoters contribute capital with property other than currency, physical objects, intellectual property rights, or land use rights, they must comply with the relevant regulations formulated by the State Administration for Industry and Commerce in conjunction with relevant departments of the State Council. Shareholders or promoters may not contribute capital in the form of labor services, credit, names of natural persons, goodwill, franchise rights or properties with guaranteed properties, etc. Article 9 Shareholders or promoters must contribute capital in their own names.
Patent rights are intellectual property rights and can be used as objects of investment and equity participation. However, whether the right to apply for patents and the right to implement patents are also intellectual property rights and can be used as objects of investment and equity participation by shareholders is quite likely to cause controversy in practice. .
3. Recognition of patented technology shares.
The procedure for shareholders to establish a company by investing shares is to first sign a contract, formulate articles of association, and determine the amount and method of the shareholder's capital contribution. Once shareholders sign the contract and articles of association, they are bound by the articles of association and must fulfill their obligations in the amount and method of capital contribution stipulated in the articles of association. To invest in shares of patented technology, the value of the patented technology must be evaluated, and then the patentee shall go to the Patent Office to handle the registration and announcement procedures for the transfer of patent rights to the invested company in accordance with the contract and articles of association for establishing the company. The industrial and commercial registration authority shall transfer the patent rights based on The procedures determine the fulfillment of shareholders' investment obligations by shareholders who invest in patented technology. However, in practice, some industrial and commercial registration authorities do not regard the completion of registration and announcement procedures for patent rights transfer as a necessary requirement for patent technology shares, but use a patent rights transfer contract between the shareholder and the invested company as a requirement for patent rights transfer. In some cases, patent licensing contracts are used as the basis for completion of the patented technology shareholding procedures, which can easily lead to disputes among shareholders over whether to fulfill their investment obligations.
IV. Can the right to exploit a patent be used as an object of investment by shareholders?
The right to exploit a patent is a right derived from the patent right. It is the right of the patentee to sign a patent licensing contract. Transfer the right to exploit the patent to another person, and the other person will have the right to exploit the patent. Usually, the person who is licensed to implement the patent has to pay a consideration to obtain the right to exploit the patent. Precisely because the right to exploit the patent has the characteristic of being transferred to others by the patentee, and the procedure of investing in shares with the right to exploit the patent is simpler than that with the patent right, therefore, It has become a relatively common economic phenomenon to invest in shares using patent licensing rights.
There are several salient features of investing in shares with patent implementation rights:
(1) The shareholders and the patentee are the same. If the patentee changes, the shareholders will also change.
(2) The shareholder retains the patent rights and transfers the patent implementation rights to the invested enterprise as the registered capital when the enterprise is established. Shareholders have the obligation to safeguard patent rights.
(3) The shareholder transfers the patent implementation rights in the form of a patent implementation license contract, and the content of the patent implementation rights is stipulated in the contract. The right to exploit the patent can be agreed upon in the form of a general license, or the content of the right to exploit the patent can be determined in the form of an exclusive license. However, the transfer of the right to exploit the patent directed by the patent licensing contract does not require registration and announcement.
(4) The patentee can charge a fee for transferring the right to exploit the patent, and the fee should be used as a price to buy shares and obtain shareholder rights.
(5) The right to exploit a patent does not have the direct effect of excluding infringement by others. Only the patentee, that is, the shareholder, can exercise its right to compensate for damages to realize its rights and interests. Since the patent implementation right is operable, it is also understood as investing in patented technology. Therefore, its legality is less suspicious, but there are major legal flaws in patent implementation rights becoming the object of shareholder investment.