Patent is an important intellectual property right for us, and we can get some economic benefits through patent transfer.
1. What is a patent application transfer contract?
A contract for the transfer of patent application right refers to a contract in which the transferor transfers the patent application right of a specific invention to the transferee, and the transferee pays the agreed price. The transferor of the contract for assignment of the right to apply for a patent must be a natural person, legal person or other organization that owns or holds the right to apply for a patent. The transfer of the right to apply for a patent by a unit owned by the whole people must be approved by the higher authorities; The transfer of the right to apply for a patent by a unit or individual in China to a foreigner must be approved by the competent authority at a higher level; Where a unit or individual in China transfers the right to apply for a patent to a foreigner, it must be approved by the relevant competent department in the State Council. Any natural person, legal person or other organization can become the assignee of the contract for the transfer of patent application right, obtain the patent application right after paying the agreed price, and become a new patent applicant.
Second, the transfer of patent rights need to pay attention to the problem
(1) Patent licensing and disposal methods. Before the signing of the transfer contract, the assignor has already exploited the patent, and the transfer contract may stipulate that after the signing of the transfer contract takes effect, the assignor may continue to exploit or stop exploiting the patent. If there is no agreement in the contract, the transferor shall stop exploiting the patent. Before the signing of the transfer contract, the rights and obligations of the licensing contract that the transferor has permitted others to implement shall be transferred to the transferee from the effective date of the signing of the transfer contract.
(2) Transfer fee and payment method. The patent right transfer fee involved shall be paid in one lump sum. From the effective date of the contract, or after the announcement of the Patent Office, the transferee shall remit all the transfer fees to the transferor's account, or remit them to the transferor in cash (or in person). The transfer fee of the patent right involved shall be paid by installments, and the transferee shall remit part of the transfer fee to the transferor's account from the effective date of the contract or after the announcement of the Patent Office; After the transferor has delivered all the materials, the transferee will remit the remaining transfer fee to the transferor (or pay it in person); Payment method is bank transfer (or collection, cash payment, etc. ), and the place of cash payment is generally the place where the contract is signed.
(3) Disposal of revocation and invalidation of patent right. According to the relevant provisions of the Patent Law, when the patent right of the transferor is revoked or declared invalid after the establishment of the transfer contract, if there is no obvious violation of the principle of fairness and the transferor does not maliciously cause losses to the transferee, the transferor will not return the transfer fee to the transferee, and the transferee will not return all the information. If the signing of the transfer contract clearly violates the principle of fairness, or the transferor intentionally causes losses to the transferee, the transferor shall return the transfer fee. When someone else requests the Patent Office to revoke the patent right, or requests the Patent Reexamination Board to declare the patent right invalid, or brings a lawsuit to the people's court against the decision of the Reexamination Board (about the invention patent), after the assignment contract is established, the transferee shall be responsible for the defense and bear the resulting request or litigation costs.
Three. When will the technology transfer contract come into effect?
The transfer of a technology contract shall take effect upon the establishment of the contract. Among them, the establishment of a contract means that both parties negotiate and reach an agreement on the contents and terms of the contract according to relevant laws. The basis for judging the establishment of a contract is whether the promise is valid or not. The entry into force of the contract means that the contract has legal effect and binding force. Usually, when a contract is established according to law, it is the date when the contract takes effect.
Legal basis: Article 502 of the Civil Code. A legally established contract shall come into force upon its establishment, except as otherwise provided by law or agreed by the parties. In accordance with the provisions of laws and administrative regulations, if the contract should go through the approval procedures, such provisions shall prevail. If the failure to go through the formalities such as approval affects the effectiveness of the contract, it will not affect the performance of the obligation clauses such as approval and the effectiveness of relevant clauses in the contract. If the party that should go through the formalities for approval fails to perform its obligations, the other party may require it to bear the responsibility for violating its obligations. The modification, assignment and dissolution of a contract shall be subject to the provisions of laws and administrative regulations, and the provisions of the preceding paragraph shall apply and shall be subject to approval.
Legal objectivity:
Article 10 of the Patent Law of People's Republic of China (PRC) * * * The patent application right and patent right can be transferred. Where a unit or individual in China transfers the right to apply for a patent or the patent right to a foreigner, foreign enterprise or other foreign organization, it shall go through the formalities in accordance with the provisions of relevant laws and administrative regulations. Where the right to apply for a patent or the patent right is transferred, the parties concerned shall conclude a written contract and register it with the patent administration department of the State Council, which shall make an announcement. The transfer of the right to apply for a patent or the patent right shall take effect from the date of registration. Article 34 of the Patent Law of People's Republic of China (PRC) * * * After receiving an application for a patent for invention, the administrative department for patent in the State Council, after preliminary examination, finds that it conforms to the provisions of this Law, shall immediately publish it after 18 months from the date of application. The patent administration department of the State Council may publish its application at an early date upon the request of the applicant.