The name, meaning and explanation of know-how are inconsistent, and the definition that is more influential and adopted by many countries is 1969, the protection industry held in Budapest.
At the property rights conference, the Hungarian delegation proposed: "Proprietary technology refers to a certain value, which can be used, known to a limited range of experts, and has not been made public anywhere.
Technical knowledge, experience, data, methods or the combination of the above objects have been fully developed and have not been protected in any form as industrial rights. "
Proprietary technology has the following notable features:
(1) invisibility. As a kind of intellectual property, proprietary technology has intangible characteristics. Its manifestations are extensive, including drawings, technical data and technical specifications.
Process flow, formula, product design, quality control and management (technical import contract management regulations), including the experience and experience of technicians.
Knowledge, business know-how, etc. In addition, under the new economy, various emerging business models are also regarded as proprietary technologies.
(2) profitability. Proprietary technology is the technology formed after the completion of some valuable technologies, knowledge or experience, and it must have a proprietary and practical price.
Value and profitability are the biggest differences between proprietary technology and common sense.
(3) confidentiality. In many fields, proprietary technology is regarded as non-patented technology, not patented technology. Patent technology is protected by patent law, which is exclusive and
Have a clear legal protection period and make it public within the scope prescribed by the patent law; However, the proprietary technology is confidential and it is difficult for the public to accept it. special technology
Subjectively, the right holder of surgery has a sense of confidentiality and has taken strict confidentiality measures. Patented technology should be kept secret and only known to specific people. Once it is destroyed, it
It may lose its unique value. Confidentiality is the most important feature of proprietary technology.
2 Understanding of proprietary technology investment
(1) proprietary technology investment is the legal norm. The 18th meeting of the Standing Committee of the 10th NPC deliberated and adopted the People's Republic of China (PRC).
The Company Law (revised in 2005) stipulates that "shareholders can make capital contributions in cash or in kind, intellectual property rights and land use rights. , can be valued in money, and can
Non-monetary property transferred according to law is invested at a fixed price; However, except for the property that cannot be used as capital contribution as stipulated by laws and administrative regulations. "Promulgated by People's Republic of China (PRC) and the State Council.
Regulations on the Administration of Company Registration (revised in 2005) and Regulations on the Administration of Registered Capital of Companies (revised in 2005) promulgated by the State Administration for Industry and Commerce.
Laws and regulations, etc.) also recognize the way of intellectual property investment.
The legality of proprietary technology investment should be made clear. However, the author notes that the corresponding provisions of People's Republic of China (PRC) Company Law (revised in 2005) are reserved.
Capacity, laws and administrative regulations can restrict and restrict all kinds of property investment, including intellectual property rights.
(2) Proprietary technology as intellectual property. As an intellectual property with commercial value and secret characteristics, proprietary technology needs to be managed by enterprises according to law.
Degree, in order to safeguard the rights and interests of enterprises.
On June 5, 2008, the Outline of National Intellectual Property Strategy issued by the State Council listed trade secrets as a special task, and clearly guided market participants to establish trade secret management according to law.
Management system. Crack down on stealing other people's business secrets according to law. Properly handle the relationship between trade secret protection and free employment, non-competition restrictions of secret-related personnel and rational flow of talents.
Safeguard the legitimate rights and interests of employees.
(3) Financial accounting knowledge. Company Law of People's Republic of China (PRC) (revised in 2005) and General Principles of Enterprise Finance (revised in 2006).
) and Accounting Standards for Business Enterprises No.6-Intangible Assets (2006) all stipulate the contribution of intangible assets. Make it clear that enterprises can accept including proprietary technology.
Intangible assets, including technology, can also be used for investment. The capital contribution of intangible assets shall conform to the prescribed procedures, evaluation and pricing. Enterprises gain by accepting investment.
Intangible assets should be clearly defined according to law, and the financial responsibility of operation and management should be implemented. As a capital contribution, the proprietary technology shall be evaluated and valued, and the property shall be verified. It shall not be
Overestimate or underestimate the price. The value of know-how obtained by capital contribution shall be reasonably determined and fair, and its entry cost shall be the value agreed in the investment contract or agreement.
3 the difference between proprietary technology investment and other property investment
Because of its particularity, proprietary technology, when used as capital investment, together with money, physical objects, intellectual property rights and land use rights, can be valued in money and can be transferred according to law.
There are certain differences in the contribution of non-monetary property.
3. 1 There are legal risks during investment and holding.
In essence, the proprietary technology right belongs to the category of natural rights, and its acquisition and existence are based on the emergence and change of natural facts. Shareholders or promoters must be self-employed.
It is difficult to define and prove their rights. Therefore, compared with currency, physical objects, land use rights, trademarks and patented technologies, proprietary technology is a product.
Capital investment has high legal risks, especially its legality risk is difficult to remedy, so the capital of enterprises that accept proprietary technology investment is easy to be in an unstable state.
This risk will continue to exist during the period when the enterprise holds the proprietary technology. After the enterprise obtains the proprietary technology, it can not only use the proprietary technology, but also use the proprietary technology on this basis.
Further research and apply for a patent. If the holder of the original proprietary technology obtains a patent, the enterprise that obtains the proprietary technology through legal means such as capital contribution can only
Use proprietary technology within the scope of use, or have no re-use right at all. Therefore, there are still legal risks in the legally acquired know-how.
3.2 ownership transfer mode is different
The transfer of assets is a prerequisite for capital contribution, and the relevant laws and regulations stipulate that capital contribution must "submit the proof documents that have gone through the formalities of property right transfer". Pay in cash and in kind
As a means of payment, the land use right, patent right and trademark right in intellectual property rights all need to go through the formalities of renaming assets. However, the ownership of know-how is usually not clearly documented.
10/17/2010 research on the particularity and countermeasures of proprietary technology investment-science …
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Know-how belongs to intangible assets. Evaluating it to determine its value is a necessary procedure for proprietary technology investment and the basis for determining investors' rights. Due to specialization
Because technology has secret characteristics, it is difficult to judge the exclusiveness of proprietary technology. Because there is no clear legal protection period for proprietary technology, the definition of its right period even
It needs to consider the development of society, economy and science and technology, and its maneuverability is not strong.
At present, the evaluation methods of intangible assets mainly include income present value method, replacement cost method, current market price method, liquidation price method and mathematical method. In practice, intangible capital contributes
Asset appraisal is mainly based on the present value method of income. To evaluate the value of intangible assets, usually only the discounted amount of expected income value is considered. As far as proprietary technology is concerned, its evaluation
The estimated value should be the expected income value (that is, the income that may be generated when it is put into use in the future) minus the maintenance cost (that is, the expenses paid by the proprietary technology rights for maintaining the proprietary technology).
Present value after use). That is to say,
v 0 =∑∞(Vt-Ct)/( 1+I)t】
Among them, V0 is the proprietary technology value; Vt is the expected income of the proprietary technology in the t year; Ct is the maintenance cost of proprietary technology in the t year; I is the discount rate; t
Economic life of patented technology.
The advanced nature of proprietary technology determines its value. The more advanced the proprietary technology, the stronger the monopoly, the higher the expected income it can create, and it will be replaced by new technology.
The less possibility, the lower maintenance cost and the longer service life. There is no inevitable advanced difference between patented technology and proprietary technology, but patented technology comes first.
Progress has been verified through open procedures, but there is a lack of fair judgment on whether the patented technology is technologically advanced. The discount rate is closely influenced by industry risk and enterprise risk factors.
Ring, the higher the risk, the greater the discount rate. The confidentiality of proprietary technology is not absolute. The more people know and use proprietary technology, the higher the maintenance cost.
After technology becomes common sense, its maintenance cost is higher than its income value, and everyone will give up the confidential maintenance of proprietary technology, and its exclusiveness and monopoly value will die out.
The expected income estimation of proprietary technology itself has certain subjectivity and limitations. In addition, because the invested enterprise has no proprietary technology rights, its market
And the expected income will be affected by competitors, markets and even unscrupulous investors, and there is obvious uncertainty. Calculate and determine changes in the fair value of proprietary technology.
It's more complicated. Due to the secrecy of proprietary technology and the lack of comparability of similar assets, it is difficult to accurately evaluate its value. The real gains will probably be the same as before.
There is a big deviation in the evaluation value.
4 proprietary technology investment should pay attention to improving the content
With the rapid development of science and technology, more and more companies attach importance to the construction and application of intellectual property rights, and the situation of proprietary technology investment will become more and more common in the future. Corresponding laws
Legal, intellectual property, financial and other issues will inevitably appear frequently. Therefore, we should adopt a more strict and cautious attitude towards proprietary technology investment.
First of all, we should refine the classification of proprietary technology, formulate different regulations on different types of proprietary technology investment, and strictly regulate proprietary technology investment. Clearly limited to not being single.
Independent transfer of know-how as a mode of capital contribution. For complete know-how that can be confirmed separately, laws and investment agreements should make it clear that investors should avoid horizontal competition or losses.
Guarantees and measures that harm the commercial interests of the invested enterprise.
Secondly, the law needs to further clarify the complex intellectual property issues that may exist in proprietary technology. Investors and invested enterprises should also pay attention to protecting intellectual property rights.
Protection, it is stipulated in the investment agreement to give legal protection to the interests of the invested enterprise.
Thirdly, due to the influence of various factors, there may be a big deviation between the value actually created by proprietary technology in enterprise operation and the expected income in capital contribution evaluation. At present,
The evaluation and pricing methods and procedures of intangible assets do not consider the particularity of proprietary technology. In order to manage effectively, we should formulate more operational and practical methods for proprietary technology.
In view of the high risk in the value of proprietary technology, the law, investors and invested enterprises should pay attention to the possible business risks after the investment in proprietary technology.
Care. Enterprises should confirm whether intangible assets are impaired according to the requirements of financial standards, and adjust the value of know-how regularly. The most important thing is to ensure attention.
Integrity of book capital. In case of obvious adverse effects due to various risks of proprietary technology, the investor shall bear corresponding responsibilities and introduce alternative or supplementary investment.
Promised ways and measures to correct the threat of proprietary technology investment to the company's capital adequacy ratio and more reasonably guarantee the legitimate rights and interests of other investors and other stakeholders.
refer to
1 Du, Wu Yongduo. On the Legal Issues of Proprietary Technology Investment [J]. Journal of Anhui Electronic Information Vocational and Technical College, 2009(8)
2 Wang Hong. On the transfer pricing of intangible assets of multinational companies [J]. Cooperative Economy and Technology, 2008(2)
Three. On several legal problems to be solved in intellectual property protection [J]. Research of National People's Congress, 2008(6)
4 Zhu Jing 'an. On the Characteristics of Proprietary Technology and Its Legal Protection [J]. Economics and Law, 1992( 10)