Answers to questions about the transfer of intellectual property investment:
1. The transferee company should pay attention to whether the original shareholders of the transfer company have paid in the capital on time and in full; For the capital contribution part, first find out which shareholder originally owned the intellectual property rights of the transferred company, and whether the value of the intellectual property rights has been evaluated. After the company registered with the intellectual property rights, whether the shareholders who originally owned the intellectual property rights have transferred the intellectual property rights to The intellectual property rights are transferred to the name of the original company. It is best for the transferee company to liquidate the transfer company and re-evaluate the intellectual property rights of the original company.
2. If it is found that the original shareholders have not paid their capital contributions in full and on time, the shareholders who have not paid in full should be ordered to make up the capital. After the intellectual property is re-evaluated, if it maintains or appreciates in value, there will be no problems for the industry and commerce. If it depreciates, it must be supplemented with currency, cash, physical objects, or industrial technology property rights.
Related to the scope of investment in intellectual property rights
The "Company Law" and the "Law of Sino-Foreign Joint Ventures" both clearly stipulate that the scope of investment in intellectual property rights is industrial property rights and non-patented technologies (also known as proprietary technology). In our country, industrial property rights include two types of rights: industrial property rights and trademark rights. Therefore, it should be noted that the subject matter of intellectual property investment does not include copyright. In addition, the law on foreign-invested enterprises also requires that the industrial property rights or proprietary technologies invested as foreign joint ventures must meet one of the following conditions:
(1) Can produce new products that are urgently needed in China or marketable products for export. (2) It can significantly improve the performance and quality of existing products and increase production efficiency; (3) It can significantly save raw materials, fuel and power.
2. The proportion of the amount of intellectual property investment in the registered capital
The amount of intellectual property investment needs to be calculated, and the amount of this price will be constituted after approval by the initiating parties. part of the unchanged registered capital. The registered capital of a limited liability company is the minimum deposit for the company's external debt obligations. Therefore, in order to protect the interests of the company's creditors, the company's registered capital amount cannot be reduced during the company's entire operating period. Generally speaking, since the update period of technology is getting shorter and shorter, it is difficult for a technology to maintain its leading position for a long time. As time goes by, technology tends to depreciate, thus resulting in an actual reduction in registered capital. Since my country's technological level is still lagging behind compared with developed countries, in the establishment of joint ventures, foreign parties often invest in patent rights, trademark rights, non-patented technologies, etc., and, relying on their advantages in this area, they require very high prices. . Due to excessive valuation, the book value of registered capital often does not match the actual value. In order to prevent the "shrinkage" of registered capital, the laws of some countries do not allow investment with intellectual property rights. my country's Company Law and related regulations also impose restrictions on the proportion of intellectual property investment in registered capital, that is, the amount of capital contributed in the form of industrial property rights and non-patented technology shall not exceed 20% of the company's registered capital; high-tech joint-stock companies , the amount of capital contributed by the promoters in the form of industrial property rights and non-patented technology shall not exceed 35% of the company's registered capital. In addition, "high and new technology" should be identified or recognized by the national or provincial (ministries, commissions) science and technology departments.
3. Choices about intellectual property investment and intellectual property transfer
There are two ways for a newly established company to use the intellectual property rights of others:
Firstly, As a shareholder, the owner of the intellectual property rights contributes capital to the company with the intellectual property rights;
The second is that the owner of the intellectual property rights transfers the intellectual property rights to the company.
The legal nature of investment behavior and transfer behavior are different, and the legal consequences are also different. Knowing this, the sponsoring parties can make choices to their advantage based on how the company uses the IP. First of all, the act of investing with intellectual property is not only an investment act, but also a special intellectual property transfer act. To be precise, it is an investment-oriented intellectual property transfer. And this investment transfer is permanent. If the company is not dissolved and liquidated, investors are not allowed to withdraw this part of the property from the company.
As consideration for the capital contribution, the investor exchanges for equity in the company's property, and the investor's economic interests are realized through the annual dividends brought by its equity. Of course, if the company does not run well, the investors may not get a penny. If the company becomes insolvent and is declared bankrupt, the company also has the right to sell off the intellectual property at a price, and the proceeds will be used to pay off the company's debts. . Therefore, as a shareholder, your investment behavior requires taking risks.
What we generally call the "transfer" of intellectual property rights, strictly speaking, includes the transfer of ownership of intellectual property rights and the "license" that only transfers the right to use intellectual property rights. This transfer is not for investment purposes. When the transferor or licensor transfers or licenses the intellectual property rights to the company, the company, as the transferee or licensee, shall pay transfer fees or license fees to the transferor or licensor. Therefore, the economic benefits of the transferor are realized by obtaining a certain price rather than non-fixed investment dividends. Generally speaking, this transfer fee or royalty is deducted from the company's costs, and is withdrawn by the transferor or licensor once or year by year. When the enterprise suffers a loss, the company should still deduct the transfer fee or license fee from the enterprise's costs. , the transferor or licensor may still obtain the benefits due to the intellectual property transfer or license under the conditions of the contract (such as commission on sales volume or sales quantity).
If the company becomes insolvent and bankrupt due to losses, the transferor or licensor may participate in the distribution of the company's assets as a creditor of the company without receiving all transfer fees or royalties due under the contract. Remaining property. In addition, since the investors who invest in intellectual property rights are shareholders of the company, they enjoy the rights and interests that shareholders can exercise for the benefit of the company and their own interests, such as the right to vote at shareholders’ meetings, the right to sue directors, etc. The transferor or licensor of intellectual property rights cannot enjoy such rights as shareholders of the company. After understanding the difference between investment and transfer of intellectual property rights, the company sponsors will choose a plan that suits their own circumstances based on the specific circumstances. For example, in order to fully mobilize the enthusiasm of intellectual property investors so that they can play a greater role in future product research and development, the company can require the intellectual property owners to join the company in the form of intellectual property investment. Since the intellectual property owner has become a shareholder of the company, enjoying the benefits of successful operations and bearing the risks of operational failure, in this case, the intellectual property owner will naturally try its best to use its technology and other aspects. If the intellectual property owner is fully optimistic about its own technology, market and the credit status of other company promoters, it is possible to obtain higher returns than transferring intellectual property rights by requesting a price for the intellectual property rights.
According to the provisions of my country's "Company Law", shareholders of a company share benefits and bear risks in proportion to their investment in registered capital. Since technology has the tendency to depreciate over time, if a technology investor permanently distributes the company's income at a fixed proportion of the technology-priced investment in the registered capital, it will also cause problems in the distribution of benefits to other investors. Unbalanced. Transfer fees or license fees paid for technology transfer often adopt the method of charging an entry fee plus a commission fee. As for commissions, there are sales commissions, sales commissions, profit commissions, etc.