What are the conditions for a patent transfer contract to take effect
(1) For "registration and announcement" it is a patent transfer contract The effective condition is still the effective condition of "transfer act", and the opinions are not unanimous. One view is that registration and announcement are the conditions for the validity of a patent transfer contract. Without registration and announcement, the transfer contract is invalid and has no binding force; another view is that according to the principle of "freedom of contract", the transfer contract is invalid. The contract is valid, but without registration and announcement, the transfer of the patent right will not be effective, that is, the patent right will not be actually transferred, and the contract transferee cannot become a new patentee. However, the contract is still binding on both parties, and the party who breaches the contract shall bear liability for breach of contract. Since the patent law is not clear about this, both views have some merit. However, no matter which view is adopted, one conclusion can be drawn; without registration and announcement, the patent right will not be truly transferred, and the transferee cannot truly enjoy the patent right. The parties involved in the transfer of patent rights (especially the transferee) should pay special attention to this point.
(2) Since registration and announcement are parallel conditions for the transfer to be effective, and in practice announcement often lags behind registration, after the parties have completed the registration procedures, Before the announcement is made, the patent rights cannot be transferred. In response to these two issues, the Patent Law, which was revised for the second time on August 25, 2000, stipulates: “When transferring patent application rights or patent rights, the parties shall enter into a written contract and register it with the Patent Administration Department of the State Council. The administrative department shall make an announcement. The transfer of patent application rights or patent rights shall take effect from the date of registration."
Notes on the validity of the patent transfer contract
As for the transfer of patent rights, Article 10 of the original Patent Law Provisions have been made. Paragraph 4 of this article stipulates: "When transferring patent application rights or patent rights, the parties must enter into a written contract, which will take effect after being registered and announced by the Patent Office." This first requires the parties who transfer the patent rights, A written contract must be made, and if no contract is made or the contract is in oral or other non-written form, the assignment is void. Secondly, this article also requires that the transfer contractThe same shall be registered and announced by the Patent Office, otherwise the transfer will be invalid. The reason for this provision is that patent rights are reviewed and approved by the country's patent administration department, and their grant is registered and announced. At the same time, the legal status of patent rights not only involves the interests of the parties to the transfer contract, but also affects the interests of the public. Changes in the patent rights should be notified to the public through public announcements. In practice, some people believe that as long as both parties sign a transfer contract, the transferee will automatically enjoy the patent rights, and registration with the Patent Office is just a filing and is optional. This view is very wrong and will It will cause unnecessary contradictions and conflicts, and will also bring unnecessary trouble and losses to the parties involved (especially the transferee).
The editor reminds you that a purely verbal contract agreement cannot be effective. The law stipulates that the patent transfer contract must sign a written contract and go to the relevant department to take effect. Registration can truly take effect. The above is the relevant information summarized for you. I hope it can help you. This website is committed to building an excellent legal consultation platform. If you have any questions, you are welcome to consult with a lawyer.
