Research On The Legal Issues Of Patent Transfer Contracts In Chinese Universities

Today,with the continuous development of market economy and technological innovation,the number of patents,the quality of patents,and the degree of industrialization has become important indicators for measuring the level of scientific and technological development in various countries and regions.Colleges and universities have the advantages of disciplines,talents,basic research,and academic environment,and play a major role in patent R&D and technological innovation.The revision of the Law of the PRC on Science and Technology Progress and the Law of the PRC on Promoting the Transformation of Scientific and Technological Achievements listed "colleges and universities" as one of the most important subjects of patent R&D and patent transfer,highlighting the prominent role of this subject in the transfer of scientific and technological achievements.The Contract Law and the Patent Law have put forward basic requirements for transferring patents in colleges and universities.A series of laws and regulations that promote the transformation of scientific and technological achievements have pointed out the direction for the transfer of patents in universities,but there are still problems.Based on the existing laws and regulations,this paper takes the patent transfer contract of colleges and universities as the research object.Firstly,through the definition of patent transfer and university patent transfer,it analyzes the concept of patent transfer contract in colleges and universities and clarifies its characteristics.Secondly,it analyzes the problems existing in the patent transfer contract of colleges and universities: First,the ownership is unclear.Whether the state,the university or the inventor owns the patent is controversial;Second,the distribution system of patent transfer income still need to be improved.The Contract Law regards income allocation as one of the main contents in the chapter of technical contract.According to the current law,reward and remuneration are the determined income distribution methods.However,problems such as unclear distribution objects,incomplete distribution of subjects and inappropriate distribution ratios are still existed after patent transfer.The third is that when the patent as the subject of the contract is invalid,the validity of the patent transfer contract is controversial in the theoretical circle,and there are conflicts in the legal provisions,which cannot provide certain guidelines for the effectiveness of the patent transfer contract of colleges and universities.Thirdly,Through the introduction and analysis of the patent transfer system of foreign universities and the effectiveness of contracts when patents are invalid,the practices of some developed countries and developing countries such as the United States,Japan,and the United Kingdom are listed,and the best experience suitable for China is selected for learning: The ownership model enjoyed by colleges and universities,the income distribution is reasonably divided,and the validity of the contract after the patent is invalid is determined to be effective.Finally,it puts forward some suggestions for perfecting the patent transfer contract of colleges and universities in China: First,it determines the patent ownership model of colleges and universities in China.The state gives “decentralization” to university patents.The state only has patent rights in the case of national security,national interests and major social public interests.The university has ownership of patents arising from service inventions and financial fund establishment projects,and the inventor enjoys the transferring rights under the limited conditions.Second,the country has “returning profits” on the patent transfer income,and the university has the right to inherit the patent transfer.The income distribution should follow the concept of autonomy of will,and the prioritizing agreement.At the same time,improve the income distribution system of patent transfer in colleges and universities,and make sure that the object of income distribution is net income,and the main body of distribution is the multi-party subject related to patent rights,especially to increase the distribution proportion of inventors.The third is to restrict the public power.Based on the principle of encouraging transactions,it is necessary to make sure that whether the university or the inventor is the transferor,the patent transfer contract of the university should be valid even though the university patent is invalid.At the same time,this paper proposes amendments to Article 47 of the Patent Law.Through the research,the article hopes to solve the many confusions in the patent transfer contract of colleges and universities in China,and expect it help the relevant legislation and practice of patent transfer contracts in colleges and universities.