Confirm the type and legal status of patent right
According to the provisions of China's patent law, patents include inventions, utility models and designs. Because the authorization of utility model and design patents has not been substantially examined, the "stability" of their patents is relatively weak compared with invention patents. Therefore, the transferee should fully understand the types of the transferred patent right, weigh the potential risks of the transfer, and ask the patentee to provide the search report issued by China National Intellectual Property Administration when necessary.
At the same time, the transferee shall also search the legal status of the patent to be transferred to confirm whether the patent to be transferred is a valid patent and confirm the remaining effective life of the patent.
Pay attention to the identity of the patentee and assignee.
For the transferee, it is necessary to pay attention to whether the transferor of the patent right is the legal holder of the patent, whether there are other patentees, whether the patent is a service invention, and whether the transferor of the patent right is a state-owned enterprise. If it is a state-owned enterprise, it needs to go through the formalities for the transfer of state-owned assets in accordance with the provisions of the State-owned Assets Law of China.
Some technologies involved in patent rights may be of great significance to national interests, and if such technologies are transferred to foreigners, it may bring adverse effects to China's national interests. Therefore, according to the provisions of China's patent law, if a Chinese unit or individual transfers a patent right to a foreigner, foreign enterprise or other foreign organization, it shall go through the formalities in accordance with relevant Chinese laws and administrative regulations. The "laws and administrative regulations" mentioned in China's patent law mainly refer to foreign trade law and technology import and export management regulations.
A formal written transfer contract should be signed.
Patent right is actually a kind of property right, but the invention as the object of patent right is intangible and can't be actually possessed like tangible property, so the ownership of patent right is subject to the register of China National Intellectual Property Administration. Therefore, China's patent law stipulates that the parties to the patent right transfer shall conclude a written transfer contract and register it in China National Intellectual Property Administration in time. At the same time, it should be noted that the transfer of patent rights takes effect from the date of registration.
How to deal with the invalid patent.
Article 47 of China's Patent Law stipulates that the patent that has been declared invalid does not exist from the beginning, and the patent transfer contract that has been performed is not retroactive, and the patent transfer fee will not be returned, but it obviously violates the principle of fairness and should be returned in whole or in part.
From the transferee's point of view, the transferred patent right is not necessarily "absolutely" effective. It can be said that once the patent right is declared invalid, the transferred patent right will lose its meaning. According to the above provisions of China's patent law, the original patentee has no obligation to return the patent transfer fee. In the absence of other agreements, after the patent right is declared invalid, the assignee shall bear the responsibility. Therefore, before signing the patent transfer contract, the transferee should fully consider the "stability" of the patent to be transferred, the patent transfer fee, the economic benefit prospect of patent implementation and other factors, and agree with the patentee on different treatment methods after the patent is declared invalid in the transfer contract according to the specific circumstances.
Understand the implementation history of the patent to be transferred.
The transferred patent may have signed a license contract with others. If the previous licensing contract is not registered or filed in China National Intellectual Property Administration, the transferee has the right to request the licensee of the patent to stop the implementation; If the license contract has been registered or filed in China National Intellectual Property Administration and publicized, the licensee of the patent can enjoy the patent exploitation right, and the transferee has no right to prevent the licensee from implementing it. Therefore, before signing the patent right transfer contract, the assignee should carefully understand whether the patentee has signed a license contract with others for the patent; At the same time, the transferee should also know whether the patentee has implemented the patent to be transferred by himself, and specify the implementation of the patent before the transfer, the possible legal responsibilities and solutions in the patent transfer contract.
An agreement that infringes on the legitimate rights and interests of others
The implementation of the patent may infringe upon the legal rights of others. For example, the implementation of the design patent may infringe upon the copyright and portrait rights of others, and the invention and utility model patent may improve the basic patent put forward by others, so if the improved invention patent is implemented without the permission of the patentee of the basic patent, it may infringe upon its patent right. Therefore, in the patent right transfer contract, especially for the transferee, the way to bear tort liability in the above situation should be agreed.
It is worth noting that in addition to the above problems, the transferee should also pay attention to the difference between patent right transfer and implementation license. Patent transfer means that the patent right is transferred to others, and the assignee becomes the new patentee, while patent exploitation license means that the patentee allows others to exploit the invention protected by the patent under the agreed conditions, and the ownership of the patent right remains unchanged. Therefore, both parties should pay attention to the difference between patent transfer and implementation license, and choose a more favorable way according to the actual situation.
Patent transfer contract
(Trial)
Patent name
Patent number
Name of transferor
address
representative figure
Name of transferee
address
representative figure
Contract registration number
Signed on
Date of signing, year month day.
Made in China National Intellectual Property Administration, People's Republic of China.
Preface (in view of terminology)
Article 1 The transferor shall deliver the materials to the transferee.
Article 2 Time, place and method of delivering materials
Article 3 Patent licensing and treatment measures
Article 4 Transfer Fee and Payment Method
Article 5 Disposal of revocation and invalidation of patent right
Article 6 Transitional clause
Article 7 Taxes and fees
Article 8 Breach of Contract and Claims
Article 9 Settlement of disputes
Article 10 Others
Article 11 the contract comes into effect
Signature of transferor and signature of transferee
Signature of the legal representative of the transferor and the legal representative of the transferee
Year, month, sun, moon, sun.
turn
let
Name of the party concerned (or name) (signature)
Legal Representative (Signature) Entrusted Agent (Signature)
Contact person (signature)
residence
(mailing address)
Telephone suspension
bank of deposit
Account postal code
suffer
let
Name of the party concerned (or name) (signature)
Legal Representative (Signature) Entrusted Agent (Signature)
Contact person (signature)
residence
(mailing address)
Telephone suspension
bank of deposit
Account postal code
middle
intervene
Name of the party (official seal)
date month year
Legal Representative (Signature) Entrusted Agent (Signature)
Contact person (signature)
residence
(mailing address)
Telephone suspension
bank of deposit
Account postal code
Patent transfer contract
Signature guide
China National Intellectual Property Administration system of the People's Republic of China
Patent transfer contract
Signature guide
Preface (in view of terminology)
-In view of the fact that the transferor (name or name note: must be consistent with the legal documents of the transferred patent) owns the patent (patent name note: must be consistent with the legal documents of the patent), its patent number (nine digits), WeChat official account (eight digits including the last letter), announcement number (eight digits including the last letter), application date, authorization date and publication date, the validity period of the patent is.
-In view of the transferee's knowledge of the above patents, he hopes to obtain a patent right.
-Whereas the transferor agrees to transfer the patent right owned by it to the transferee.
Both parties agree to sign this contract.
Article 1 The transferor shall deliver the materials to the transferee.
1. All patent application documents submitted to the China Patent Office (attachment 1), including instructions, claims, drawings, abstract and abstract drawings, requests, statements of opinions, approval decisions to change recorded items, restoration after loss of rights, power of attorney, etc. (If the application is PCT, all PCT application documents should also be included).
2. All documents issued by China Patent Office to the transferor (Annex 2), including acceptance notice, intermediate documents, authorization decision, patent certificate and copies, etc.
3. The patent exploitation license contract licensed by the transferor to others, including the annexes to the contract (i.e., the technology, process and other documents related to patent exploitation).
4. A valid patent certificate issued by China Patent Office. Refers to the recent patent annual fee payment certificate (or the patent register of the patent office), and the decision made by the Chinese Patent Office, the Patent Reexamination Board or the people's court to maintain the validity of the patent right in the request for revocation or invalidation of the patent right.
5, the competent department at a higher level or the relevant competent department of the State Council approved the transfer of documents.
Article 2 Time, place and method of delivering materials
1, data delivery time
After the Contract comes into effect, the Transferor shall deliver all the materials mentioned in Article 1 of this Contract to the Transferee within days after receiving the transfer fee paid by the Transferee, or after the Contract comes into effect,
Within days, the Transferor shall deliver all (or part of) the materials mentioned in Article 1 of this Contract to the Transferee. If it is partial information, the Transferor shall deliver the remaining information to the Transferee within days after the Transferee pays the transfer fee to the Transferor.
2, the way and place of information transmission.
The Transferor shall submit all the above materials to the Transferee in person, by registered mail or by air transportation, and submit the list of materials to the Transferee in person, by mail or by fax, and submit the air waybill to the Transferee in person or by mail.
The delivery place of all materials is the location of the transferee or the place agreed by both parties.
Article 3 Patent licensing and treatment measures
Before the signing of this contract, the transferor has already exploited the patent, and this contract may stipulate that after the signing of this contract, the transferor 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 this 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 signing this contract.
Article 4 Transfer Fee and Payment Method
1. The patent transfer fee involved in this contract is (? , $ yuan), the transferee shall remit all the transfer fees to the transferor's account or remit or (transfer) them to the transferor in cash within days from the effective date of the contract or days after the announcement by the Patent Office.
2. The patent transfer fee involved in this contract is (? , USD), installment payment, within days from the effective date of the contract, or after the announcement of the Patent Office.
Within a few days,% (? , $) to the account of the transferor; Within days after the transferor delivers all the materials, the transferee will remit the remaining transfer fee to the transferor (or pay it in person);
Or pay within the day after the contract comes into effect (? , $) yuan,
Pay within the month (? , $) yuan, paid within a month (? , $) yuan, and finally pay off the remaining transfer fee within months.
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.
Article 5 Disposal of revocation or invalidation of patent right
According to Article 50 of the Patent Law, when the patent right of the transferor is revoked or declared invalid after the establishment of this 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 this contract obviously violates the principle of fairness, or the transferor intentionally causes losses to the transferee, the transferor shall return the transfer fee.
When others request the Patent Office to revoke the patent right, or request the Patent Reexamination Board to declare the patent right invalid or bring a lawsuit to the people's court against the decision of the Reexamination Board (for invention patents), after the establishment of this contract, the transferee shall be responsible for the defense and bear the resulting request or litigation costs.
Article 6 Transitional clause
1. After this contract comes into effect, the transferor shall keep the patent valid until the date of registration and announcement by the Patent Office. During this period, the annual fee and renewal fee (utility model and design applied before 1992 12 3 1) shall be paid by the transferor.
2. After the contract is registered and announced in the Patent Office, the transferee shall be responsible for maintaining the validity of the patent, such as handling the annual patent fee, renewal fee, defense of administrative cancellation and invalid request, and responding to invalid litigation.
(It may also be agreed that all expenses for maintaining the validity of the patent right shall be paid by the transferee after the signing of this contract. )
3. During the transition period, if the transferor or transferee fails to perform the contract due to force majeure, this contract will be terminated.
Article 7 Taxes and fees
1. If both the transferor and the transferee are China citizens or legal persons, the taxes payable for the transfer fee involved in this contract shall be paid by the transferor according to the tax laws of People's Republic of China (PRC) and the state.
2. If the transferor is an overseas resident or unit, the transferor shall pay taxes to the China tax authorities in accordance with the National Tax Law of People's Republic of China (PRC) and the Income Tax Law of People's Republic of China (PRC) on Enterprises with Foreign Investment and Foreign Enterprises.
3. If the transferor is a citizen or legal person of China and the transferee is an overseas unit or individual, the tax shall be paid in accordance with the tax laws of the other country or region.
Article 8 Breach of Contract and Claims
To the transferor:
1. If the transferor refuses to deliver all the information stipulated in the contract and go through the formalities of patent right transfer, the transferee has the right to terminate the contract and demand the transferor to return the transfer fee and pay liquidated damages.
2. If the transferor fails to deliver the materials for handling the patent right transfer formalities to the transferee without justifiable reasons (including changing the description items to the Patent Office), it shall pay liquidated damages every week overdue. If it is overdue for two months, the transferee has the right to terminate the contract and demand the return of the transfer fee.
According to Article 6, in case of breach of contract, the transferor shall pay liquidated damages.
To the assignee:
1. If the transferee refuses to pay the transfer fee, the transferor has the right to terminate the contract, demand the return of all information, and demand compensation for its losses or pay liquidated damages.
2. If the transferee fails to pay the transfer fee, it shall pay liquidated damages for each overdue period.
; If it is overdue for two months, the transferor has the right to terminate the contract and demand payment of liquidated damages.
3. In case of breach of contract according to Article 6, the transferee shall pay liquidated damages.
Article 9 Settlement of disputes
1. Any dispute arising from the performance of this contract shall be settled by both parties through friendly negotiation according to the terms of this contract.
2. If no settlement can be reached through negotiation, it shall be submitted to the patent administration authority in the place where the transferee is located or where the contract is signed for mediation. If you are dissatisfied with the mediation results, you can bring a lawsuit to the people's court.
3. In case of dispute between the two parties, if negotiation fails, they may bring a lawsuit to the people's court.
4. In case of dispute between the two parties, if negotiation fails, it shall be submitted to the Arbitration Commission for arbitration.
Note: Only one of 2, 3 and 4 can be selected.
Article 10 Others
What are not mentioned in the first nine articles, but need special agreement, including how to agree on unforeseen technical problems; How to reach an agreement on unforeseen legal issues, etc.
Article 11 the contract comes into effect
This contract is binding on both parties after being signed by both parties, and has legal effect from the date when the Patent Office registers and announces the changes made by both parties.
The above content is a model essay, please modify it according to the actual situation!