What are the countermeasures for the risks of patent application?
The existence of patent right means that two or more units or individuals share a patent right. In view of the complex relationship between people and the characteristics of patent right itself, there are risks in the implementation, licensing, transfer, maintenance, judicial and administrative protection of patent right. This paper briefly analyzes the risks of patent right, and puts forward the corresponding preventive countermeasures in order to benefit the management of patent practice. 1 Patents * * * Patents * * * have their reasons, among which there are five main reasons: (1) Patents arising from cooperative inventions * * According to Article 8 of the Patent Law of People's Republic of China (PRC), "Unless otherwise agreed, the right to apply for a patent belongs to inventions completed in cooperation with two or more units or individuals, or by other units or individuals. After the application is approved, the unit or individual applying for it is the patentee. " Therefore, unless otherwise agreed in the agreement, the patent right of the invention and creation completed by cooperation belongs to * * * and the unit or individual that completed the invention and creation * * *. (2) Based on the fact that the patent right agreed by the parties is an important civil right, the law allows the parties to legally dispose of their ownership through contracts. According to the third paragraph of Article 6 of the Patent Law of People's Republic of China (PRC), "If an invention-creation is completed by using the material and technical conditions of the entity, the entity has a contract with the inventor or designer to stipulate the right to apply for a patent and the ownership of the patent, such agreement shall prevail". That is to say, if the unit has a contract with the inventor or designer, and the ownership of the patent application right and patent right is shared by the unit and the inventor or designer, then the patent right obtained at this time belongs to the unit and the inventor or designer. In addition, units or individuals entrusted by other units or individuals can also enjoy patent rights through contracts. (1) (3) Although the relevant laws and regulations of our country do not clearly stipulate the * * * relationship with the patent assignee, it is completely allowed in civil law theory and feasible in practice. At this time, the transferred patent right will be owned by several units or individuals. (4) If a legal person or other organization is divided or merged on the basis of the patent right inherited when the legal person or other organization is divided, its rights and obligations shall be enjoyed and assumed by the changed legal person or other organization. This acquisition method is also called inheritance acquisition. [2] If a legal person or other organization fails to make specific provisions on the ownership of the patent right when it is divided, it shall be deemed that the patent right belongs to the legal person or other organization after the division. Of course, because the patent right is the exclusive right granted by the state, it is necessary to register the patent registration items accordingly. (5) Based on the inheritance or partial donation of the patent right by the patentee, according to the provisions of Article 3 of the Inheritance Law of People's Republic of China (PRC), the property right in the patent right of citizens belongs to the legal property of individuals and can be inherited according to law. So if there are more than two heirs, when the estate is divided, there is no agreement that * * * has the property right of patent right, which will produce the de facto patent right. In addition, the patentee can donate part of his patent right to others, and a patent right will be generated between the donor and the donee. Of course, the gift of the patent right is only effective after the patent administration department makes corresponding changes to the registered items of the patent right according to the application of the donor (obligee). 2 Nature and Form of Patent Right Generally speaking, the nature of patent right shall prevail. [3] The so-called quasi-existence refers to the existence of two or more civil subjects with property rights other than ownership. [4] As for the form of * * *, it can be * * * or * * *. [5] This is because, in addition to the patent right directly stipulated by law, it may be difficult to determine the definite share of each owner of * * * because the parties have not agreed, so it is presumed that * * * is owned by * * *, and the parties can share the rights and obligations of * * * in full accordance with the definite share through the contract, that is, it can be owned by * * *. Moreover, no matter how the patent right is obtained, the law does not rule out that the parties agree on their ownership through contracts. Naturally, there is no need to limit whether the parties agree with * * * or by * * *. 3 The risk of patent right * * * is the same as that of quasi * * existence of other real rights and * * * existence of real rights. * * Someone's quasi-* * existence or * * * existence is more risky than a single right subject in the exercise of real right or real right. This is because the improper behavior of one * * * person may affect other * * * people, and even cause losses, so that the quasi-* * property right or * * * property right is always in the potential risk brought by the possible improper behavior of * * * people. * * * The same is true for some patent rights, but due to the technical and legal characteristics of patent rights, some risks of patent rights are greater and more complicated than other property rights. 3. 1*** Risk of someone implementing the patent right of * * * Generally speaking, unless otherwise agreed, every * * * obligee can independently implement the patent right of * * *. However, due to the differences in actual production capacity and market share of each * * *, the benefits obtained by each * * * through patent implementation are not necessarily equal to its contribution to patent technology research and development, and even obviously unfair. For example, a university and an enterprise in Wuhan jointly developed a technology and obtained a patent authorization. Enterprises have achieved great economic benefits through the implementation of patented technology, while colleges and universities cannot obtain benefits through patented technology because they do not have the implementation conditions. The reasonable compensation demanded by the university has not been realized because the law has not made a rigid provision on the benefit sharing between * * * and the patent right, and there is no relevant agreement between the two parties. In desperation, the university licensed the patent right to others, causing disputes, and the court ruled that the university lost the case. If the patent right is owned by multiple obligees, and each obligee has the ability to implement it, there will inevitably be competition between * * * people for the implementation of the patent right, and there is even the risk of turning into vicious competition. This also violates the original intention of granting exclusive patent rights to encourage inventions and protect the interests of investors in science and technology. 3.2*** Risk of someone licensing * * * Licensing by patent is based on the principle of consensus in our country, that is, the license must be agreed by all * * * people, except that * * * party is unable to license a third party. However, because some people in * * * have different views on the technical value and market value of some patented technologies, it is often difficult for many people in * * * to reach an agreement on whether to license, how to license and how much to license, and even some people in * * * deliberately prevent the implementation of * * * patent license for their own interests. Therefore, there is a risk that * * * patent rights are difficult to license or cannot meet the reasonable license implementation. Considering that some patents * * * have no enforcement ability, in order to safeguard their interests, the Supreme People's Court stipulated in the Summary of Several Issues Concerning the Trial of Technical Contract Disputes that when a party * * * with no enforcement ability gives a general license to a third party, it is not an infringement. [6] This may be beneficial to compensate the interests of the owners of * * * who have no execution ability, but because there is no exact definition of a third party, if the owners of * * * who have no execution ability license it to the competitors of other owners of * * *, and their market competitiveness is rapidly improved due to this license, such a result will definitely be unacceptable to other owners of * * *. 3.3 * * The risk of patent transfer For the transfer of * * * patent, China adopts the principle of consensus, that is, it shall not be transferred without the consent of other * * * people. However, because some people may have different views on the technical value and market value of patented technology, it is inevitable that many people cannot reach an agreement on the transfer fee, which will affect the transfer. What's more, it is impossible to prevent individuals from deliberately obstructing the transfer for their own interests. In a certain * * *, considering the market competition, some people are unwilling to transfer their * * * patent rights to competitors, resulting in the patent rights being idle or transferred to others at a low price, which will inevitably cause losses to other * * * obligees. At this time, if there is no agreement in advance, how to determine and bear the loss is a difficult problem to solve. For example, a research institute in Wuhan cooperated with enterprises to tackle key problems and obtained a patent right. The institute expects to make a profit by transferring patented technology. Considering the market competition, the enterprise disagrees with the transfer and then claims that it can only be transferred to itself. The institute is quite passive and has to be transferred to a cooperative technology research enterprise at a low price. 3.4*** As a legal right, the risk patent with patent maintenance must be obtained and maintained according to law. In order to protect the patent right continuously and effectively, the annual patent fee must be paid according to the regulations, otherwise the patent right will automatically become invalid. If some * * * people give up their * * * patent right through a written statement, then the part they give up shall be obtained by other * * * people. [7] Other * * * people may, according to their written statements, request the State Patent Office to make corresponding changes to the patent registration items, and delete this part of * * * people from the list of * * * patentees. However, if some * * * people give up the patent right by not paying the annual patent fee, then other * * * people will face an unfavorable situation: if they want to maintain the patent right, they must pay all the patent fees, but it is difficult to provide the necessary evidence for the change of patent registration items, and it is impossible to remove this * * * person from the list of patentees. In addition, when * * * owns the patent right and someone else applies to the Patent Reexamination Board to declare the patent invalid, the patentee shall state his opinions within a specified time limit according to the requirements of the Reexamination Board, or amend the patent claim, or attend an oral hearing at the request of the Reexamination Board. At this point, if some * * * people actively participate in the examination and some * * * people treat it negatively, it will have the same effect for all * * * people, no matter whether the patent is maintained or declared invalid in the end. However, it is very unfair that there are people in every room who make different contributions in material and spiritual aspects (even creative work). 3.5*** Risk of patent protection Once a patent right is infringed, each * * * has three possible choices. First, agree to sue or participate in litigation, and investigate the infringer's responsibility; The second is to explicitly give up substantive rights and not pursue the infringer's responsibility; Third, neither willing to participate in litigation nor giving up substantive rights. In the first case, it is natural that * * * participates in litigation, * * participates in paying litigation costs, * * participates in taking litigation risks, and * * * participates in sharing litigation benefits (tort damages). In the second case, if the person who belongs to * * * waives his rights, he shall be allowed and exempted from the obligation to pay litigation costs and bear litigation risks on the premise that he will no longer share the litigation benefits (tort damages).