1. Legal factors
It mainly includes: (1) the completeness of ownership, that is, the completeness of ownership of the patent right owned by the patentee or the client. The more complete the ownership, the greater the value. (2) the degree of legal protection, including two aspects, the state of the patent and the integrity of the claim. The status of a patent refers to the technical status in a patent application, whether it is in the initial examination stage, substantive examination stage or patent certificate obtaining stage, the later it is, the greater its value will be. Different types of patents have different degrees of protection. Since the invention patent has passed the substantive examination, it is less likely to copy others' patents or be revoked after obtaining the patent certificate. Compared with the other two patents, it has higher technical content, longer application period and greater risks faced by the obligee, so its value is relatively high. The integrity of the claim refers to the patent scope that needs to be protected in the patent application claim, and also reflects the quality problem of the claim. Some claims are complete and better protect the rights of the patentee. Some claims are incomplete, and only part of the rights of the patentee are protected. (3) Residual service life, generally, the shorter of the economic life and legal service life of the patented technology should be adopted to determine the residual service life. The longer the service life, the greater its value.
2. Technical factors
Technical factors mainly include the degree of patent innovation, that is, the advanced degree of technology; The development stage of technology; The competitive advantage of technology means that there are key technical know-how in the process of technology implementation, and the technical complexity is high, and this technical know-how is not easy to be analyzed, tested and simulated. Because the excess income of technology is mainly reflected in its monopoly income, the more competitive the technology is, the higher its monopoly degree will be and the market share of technical products will be correspondingly higher, so it is difficult for technical products to be replaced.
3. Industrial factors
It mainly includes the degree of industrialization (1), that is, the difficulty of technology industrialization, whether the implementation conditions are harsh, the easier it is to industrialize, the easier it is to implement patented technology, and the greater the possibility of patent implementation. (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 can it get national and local support, and the patent will quickly form an industry. The more the country encourages the development of the industry, the faster the value of technology implementation can be brought into play. (3) The industrial application scope mainly refers to the size of the possible application fields of patented technology now and in the future. The wider the application scope, the greater its value. (4) the degree to which technical products are accepted by the market. The more products the market needs, the greater the value of technology.
4. Special factors
Special factors in some industries, such as drug certification, clinical trials, and relevant approval certificates of network security technology, also have a great influence on the value of patent rights, because these special factors are necessary elements for the industrialization of patented technology.
These factors should be considered when evaluating intellectual property rights, and they are also the key to the future value of intellectual property rights.
Patent contribution and shareholding process I. Patent contribution and shareholding process.
Shares in a patent need to be appraised by a specific asset appraisal institution. Patent right, as a kind of intellectual property right, can be used as a form of capital contribution for the establishment of enterprises through monetary valuation, and must be handled in accordance with the prescribed procedures.
1. Shareholders * * * sign the Articles of Association, and stipulate their respective capital contributions and modes.
2, by the patentee in accordance with the law entrusted by the financial department approved the establishment of an asset appraisal institution to assess, and go through the formalities of patent change registration and announcement.
3. industrial and commercial registration issued the corresponding appraisal report, written opinions of relevant experts on the appraisal report, business license of the appraisal institution and patent transfer procedures.
4. Where a foreign party contributes industrial property rights or proprietary technology, it shall submit relevant materials of the industrial property rights or proprietary technology, including a copy of the patent certificate or trademark registration certificate, the effective status, its technical characteristics, practical value, the calculation basis of pricing, the pricing agreement signed with the China party and other relevant documents as annexes to the joint venture contract.
Second, some problems of patent investment.
Article 27 of the Company Law: "Shareholders can make capital contributions in cash, or they can make capital contributions in kind, intellectual property rights, land use rights and other non-monetary properties that can be valued in money and can be 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. Where there are provisions in laws and administrative regulations on evaluation and pricing, those provisions shall prevail. The monetary contribution of all shareholders shall not be less than 30% of the registered capital of a limited liability company. "
Article 7 of the Regulations on the Administration of the Registration of Registered Capital of Companies shall be appraised by an asset appraisal institution with appraisal qualification and verified by a capital verification institution. Article 8 Shareholders or promoters may make capital contributions in currency, or they may make capital contributions in kind, intellectual property rights, land use rights and other non-monetary properties that can be valued in currency and transferred according to law. Where a shareholder or promoter contributes capital with property other than currency, physical objects, intellectual property rights and land use rights, it shall comply with the relevant provisions formulated by the State Administration for Industry and Commerce in conjunction with relevant departments of the State Council. Shareholders or promoters shall not make capital contributions at a fixed price in the form of labor service, credit, natural person's name, goodwill, franchise or secured property. Article 9 Shareholders or promoters must contribute capital in their own names.
Patent right is a kind of intellectual property right, which can be used as the object of investment. However, whether the right to apply for a patent and the right to implement a patent also belong to intellectual property rights, and whether they can be used as the target of shareholders' investment and shareholding is controversial in practice.
Three, the identification of patented technology shares.
The procedure for shareholders to set up a joint-stock company is to sign a contract, formulate the articles of association, and determine the amount and mode of capital contribution of shareholders. Once the shareholders sign the contract and articles of association, they are bound by the articles of association and must fulfill the obligations of the amount and method of capital contribution stipulated in the articles of association. Shares in patented technology must be valued, and then the patentee shall go through the registration and announcement procedures for the transfer of the patent right to the invested company in accordance with the contract and articles of association for the establishment of the company, and the industrial and commercial registration authority shall determine the shareholders who share in patented technology to fulfill their capital contribution obligations in accordance with the procedures for the transfer of the patent right. However, in practice, some industrial and commercial registration authorities do not take the completion of the patent transfer registration and announcement procedures as the essential elements of the patent technology shareholding, but take the patent transfer contract between the shareholders and the invested company as the basis of the patent transfer, and some take the patent implementation license contract as the basis of the patent technology shareholding procedures, which is easy to cause disputes over whether the shareholders fulfill their investment obligations.
4. Whether the patent right can be used as the object of shareholders' investment.
Patent exploitation right is a kind of right derived from patent right, which means that the patentee transfers the patent exploitation right to others by signing a patent exploitation license contract, and others enjoy the right to exploit the patent. Usually, the licensee has to pay the consideration to get the patent right. It is precisely because the right to use a patent has the characteristics of being transferred by the patentee to others that it is easier to share shares with the right to use a patent than with the patent. Therefore, it has become a common economic phenomenon to use the right to use patents as capital for shares.
There are several remarkable characteristics of taking shares with the right of patent implementation:
(1) Shareholders and patentees are the same. If the patentee changes, so will the shareholders.
(2) Shareholders retain the patent right and transfer the patent exploitation right to the invested enterprise as registered capital when the enterprise is established. Shareholders have the obligation to safeguard the patent right.
(3) The shareholders transfer the patent exploitation right by means of a patent exploitation license contract, and the content of the patent exploitation right is stipulated in the contract. The right to patent exploitation can be agreed by general license or determined by exclusive license, and the transfer of the right to patent exploitation pointed to in the patent exploitation license contract does not need to be registered and announced.
(4) The patentee may collect fees for the transfer of the patent exploitation right, which shall be collected as shares in order to obtain shareholders' rights.
(5) The right to use a patent does not have the effect of directly excluding the infringement of others, and its rights and interests can only be realized by the patentee, that is, the shareholder, exercising the right to compensation for damages. Because of the operability of patent enforcement right, it is also understood as patented technology. Therefore, there is no doubt about its legitimacy, but there are great legal flaws in the patent implementation right becoming the object of shareholders' capital contribution.