Patent transaction refers to the exchange of patents between different economic entities in a paid manner. transfer.
Among them, the buyer obtains the right to use or ownership of the patent, and the seller obtains excess economic profit.
Patent transactions are property rights mediated by currency, Exchange of value for products and services that include property rights.
Patent transactions have the common characteristics of tangible property and service transactions, have strong policy orientation, and , along with the transaction of technical guidance, technical secrets and related equipment, and at the same time due to factors such as the characteristics of the patent itself, the patent transaction contains the following significant particularities.
I. The particularity of the subject of transaction patents
The subject of patent transaction is the subject of rights that should be determined first in the process of patent transaction, mainly involving the qualification of the subject of transaction, namely Whether the subject is eligible for transaction rights. If the subject of the patent transaction is unqualified, or its subject qualification is defective, it may directly lead to the invalidation of the patent transaction. Due to the diversity of patent transaction methods, it is determined that patent transaction subjects are relatively diverse, including patent sellers (mainly patent owners) and buyers, patent licensors and licensees, patent sponsors and recipients, patent Pledgor and pledgee and other rights subjects. Practice shows that, in the process of specific patent transaction activities, most of the patent rights subjects usually do not directly participate in the transaction, but entrust a third person with professional knowledge and professional qualifications to implement the transaction on their behalf. This virtually improves the professional quality of the subject of patent transactions and the professional ethics requirements of the third party with professional knowledge.
Second, the particularity of transaction patent objects
The characteristics of the patent itself fundamentally determine the particularity of the patent transaction object, in addition to intangibility and legal monopoly , there are also significant contradictions in the following aspects:
1. Contradictions between the sustainability of patent transaction subject information and the temporal and spatial validity of its legal effect. As a kind of knowledge information, patented technology cannot be generated without completely cutting off the historical connection, and it has "sustainability". However, the law imposes certain restrictions on the legal effect of patent rights in the scope of time and space;
2. The contradiction between the certainty of the transaction object and the relative uncertainty of the object's own right protection scope. The subject of patent transaction is premised on a clear transaction object. However, due to the practical difficulty in defining the protection scope of patent rights, the protection scope of patent rights involving transactions is relatively uncertain;
3. The contradiction between the specificity of transaction object cost maintenance and the transaction subject's striving for low total transaction cost. The patent maintenance cost is relatively specific, mainly composed of the following four aspects: the internal cost of the market entity, the maintenance cost of the patent itself, the patent judicial and administrative rights protection cost, and the patent social cost. The main body of patent transaction will try to control the transaction cost, but from any link of patent creation, application, protection and management, its cost is difficult to predict and control. Therefore, it runs counter to the original intention of market entities to obtain patent rights by creating benefits. In addition, there is an invisible loss of patents, and their value tends to decrease as a whole, resulting in a contradiction between the specificity of the maintenance of transaction object costs and the pursuit of low total transaction costs by transaction subjects.
III. Difficulty and high risk of trading patents
Just like the above-mentioned particularities of the subject and object of patent transactions, as well as the relative uncertainty of patent legal status, patent legal protection The relative flexibility of effectiveness and the two separations of patent power and carrier lead to high difficulty and high risk in the patent transaction process.
1. The legal status of a patent is directly related to the validity and stability of the patent right, but it is characterized by relative uncertainty , the five poles may lead to the risk of damage to both immediate and long-term interests. For patent option transactions, you should also pay attention to the great uncertainty in the patent application process. In addition to the application being rejected according to the law, it may also fail to be authorized due to defects in the drafting of the patent application documents, or the high-quality patent application may not be authorized. of patents but obtained relatively low-value patents;
2. The separation of the specific capabilities of patent ownership and use rights and the duality of each specific capability and tangible carrier intensifies The difficulty and risk of the patent transaction process. The former leads to the reproducibility and dissemination of patent transactions, which can meet the needs of different market entities in different time and space; the latter reflects that patent transactions do not rely on tangible carriers. At the same time, due to the instability and loss of patent value, it is difficult to assess accurately, and the information asymmetry between patent transaction subjects, coupled with the significant added value of patents, make it easier to induce patent transactions with significant professionalism. Infringement and being infringed, thus exacerbating the difficult and high risks that are difficult to predict in the process of patent transactions.
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