Research On Legal Issues Of Investment Of Patent Use Right

As a prelude of the "plan for restructuring the state council and transforming function", the registered capital registration system reform and the new "company law" successively promulgated and implemented, target of "releasing regulation of market subjects access, optimizing business environment" is becoming brighter. In this context, the investment of patent use right is more and more practical. Although at present our laws do not expressly acknowledges the contribution form, but in practice, both domestic and outside all exist instances. We should respect their role in the social and economic life, and try our best to regulate and guide them, rather than strictly limit or even direct negation. Approving the validity of the capital contribution of patent use right, is also the inevitable requirement of maximizing economic benefits and promoting the commercialization and industrialization of intellectual property.Besides introduction and conclusion, this article is divided into four chapters. The first chapter discusses whether patent use right can be the capital contribution from three aspects:eligibility, legitimacy and necessity. Patent use right as a usufruct of intellectual property with use value and value, can achieve the function of capital appreciation; and there are only two essential eligibility requirements for non-cash contribution, those are independent "transferable" and "existing", which also meet the patent use right, so it acts as a company’s capital of congenital conditions. Patent use right can be paid in capital. Chapter Ⅱ mainly constructs specific rules of investing patent use right. The top issue of the investment is evaluation. It needs to identify the different forms under different influencing factors:inventions and utility models may be applied different evaluation methods depending on the different situation, while the appearance design is applied for cutting method. On the delivery, it needs to be done both law and the facts at the same time. Legal delivery is to sign license agreements and investment agreement, and to complete rights transfer procedures from the patentee to company; delivery of fact is to delivery technical materials, to provide necessary guidance, until the company can fully exploit the patent. Both parties may voluntarily go to the national Patent Office to record license contract to complete the capital contribution of the public, otherwise shall not constitutes a defense against a third person in good faith. The third chapter is trying to solve conflicts of interest in the process of patent use right investment through endogenous and exogenous paths from the perspective of balancing of interests. The endogenous mechanism is rooted in autonomy, respecting the parties voluntary choice in the situation of information symmetry; exogenous mechanism works when there is abuse of power in the information failure that needs legal intervention. Those external rules include information disclosure mechanism, dynamic value evaluation, and restrictions of patentee’s rights in order to curb the moral hazard in the process of capital contribution. The fourth chapter mainly discusses the civil liability of investors, evaluators and verification person. Patent holder as the investor violating the capital contribution obligations need to be liable for his breach of contract to other shareholders and the company, while liable to the creditor within the scope of such indirect infringement of tort liability to pay compensation. Evaluators and verification persons are be liable for breach of contract to the company and other shareholders within the scope of the assessment of false, and to the creditors bear tort liability to pay compensation. If the false assessment is made by evaluators and shareholders in common, they need to bear joint and several liability to the creditors.