Release Act [2004] on the 20th
On November 30, 2004 the Judicial Committee meeting of 1335,
Since January 1, 2005 has come into effect.
In order to correctly dealing with technical contract dispute cases, according to the "Contract Law", "Patent Law of the PRC" and "The PRC Civil Procedure Law," and other relevant provisions of the law, the context of judicial practice, it is on this issue the following explanations.
A general rule
The first of the technical achievements, and refers to the use of scientific and technical knowledge, information and experience relating to products, processes, materials and the improvement of the technical program, including patents, patent applications, technical secrets, computer software, integrated circuit design, new plant varieties.
Technology secret, is not known to the public, with a commercial value and by the right to take security measures of technical information.
The second law of the contract, paragraph 2 of the 326th "the Executive legal persons and other organizations on the tasks," including :
(1) performing legal persons or other organizations posts assume their duties or delivery of the other technology development;
(2) within one year after separation to continue with its original host legal persons and other organizations of their duties or delivery of the mission of the technical development work, but laws, administrative regulations, unless otherwise stipulated.
Legal or other organizations with employees working on the staff leave during or after completion of the technical interest in the outcome of the agreement, the people's courts should be recognized in accordance with agreed.
The third of the Contract Law Section 2 of the 326th alleged "material and technical conditions," including funds, equipment, tools, materials, undisclosed information and technical information.
The fourth of the contract, paragraph 2 of the Act 326th alleged "main use of legal persons or other organizations in the material and technical conditions", including the technical staff of the outcome of the research and development process, the use of all or most of the legal persons or other organizations of the funding, equipment, raw materials, equipment or material conditions and these substances to create the conditions for technological achievements have substantive implications; The technology also includes the results of the substantive content of legal persons and other organizations have not yet made technological achievements, interim technical achievements on the basis of completed cases. But except in the following situations :
(1) the use of legal persons or other organizations to provide material and technical conditions, and they agreed to the return of funds or to pay fees;
(2) technological achievements in use after the completion of legal persons or other organizations in the material and technical conditions for technical certification program, tests.
The fifth completion of the individual technological achievements, which belongs to the implementation of the original legal persons or other organizations in the task, the main use of which is legal persons or other organizations in the material and technical conditions, it should be in accordance with the original natural host is the host and legal persons or other organizations confirmed the agreement reached interests. Unable to reach an agreement, based on complete technical achievements size of the contribution by the two sides to share.
The sixth of the Contract Law of the 326th, 327th of the alleged completion of the technical outcome of the "personal", including the technological achievements made individually or jointly contribute to the creative people, and technological achievements that the inventor or designer. The People's Court in the creative contribution identified, it should be involved in decomposition technology substantive outcome of the technical components. Substantive technical components and technology from the program, who are the creative contribution of the people.
Provide funding, equipment, materials, test conditions, organizational management, assisted in the preparation of technical drawings and collate information, such as translation of literature, not completion of the technical achievements of individuals.
Seventh not have the qualification of civil Research Organization, the technology contracts, legal persons or other organizations authorized or recognized as legal persons or other organizations contracts entered into by legal persons or other organizations take responsibility; Without legal persons or other organizations authorized or approved by the research group Weaving members shared responsibility, but legal persons or other organizations for the benefit of the contract, the benefit should be undertaken within the corresponding responsibility.
The preceding paragraph is not alleged civil qualifications of research organizations, including legal persons or other organizations engaged in the establishment of research and development in technology transfer activities in the topic group, workrooms.
The eighth of the production of goods or services in accordance with the law shall be subject to approval of the relevant departments or administrative license, and without the approval or permission will not affect the conclusion of the technical contract's effectiveness.
The parties shall be referred to obtain approval or permission from the obligation not agreed or agreed not clear, the people's courts should be implemented by the ruling party of charge, but the legal and administrative regulations, unless otherwise stipulated.
9 party to fraudulent means to take on its existing technology as a research and development results with others made the subject commissioned development contract research and development charge, or on the same research topic and has two or more clients commissioned by the respective development contract duplication charge of the research and development costs , the injured party to the contract in accordance with Article 54, paragraph 2, Act to request the change or rescind a contract, the people's court should be supported.
The 10th of the following cases, contract law 329th of the alleged "illegal monopoly on the technology, hinder technological progress" :
(1) to limit the party is the subject of the contract based on technical research and development of new or restrict their use of improved technology, or the two sides exchanged technical improvement of the conditions of inequality, including one of its own to improve the technology available to the other free of charge, non-reciprocal transfer to the other side, free exclusive or shared the improved technology of intellectual property;
(2) to limit the party is obtained from other sources and technology to provide similar technology or to compete with the technology.
(3) obstructing the party is based on market demand, in accordance with a reasonable way to implement fully the subject of the contract, including the patently unreasonable restrictions on technology acceptable contract subject to the implementation of technologies for the production of goods or services in volume, variety, price, distribution channels and export markets;
(4) require the recipient to accept technology is not essential to the implementation of technical conditions, including the purchase of non-essential technology, raw materials, products, equipment, services and receive non-essential personnel;
(5) unreasonable restrictions on technology recipient to purchase raw materials, components, products or equipment of the channel or source;
(6) prohibit the technical side to accept the contract intellectual property subject to the validity of the objections raised objections or additional conditions.
Article 11 of the technical contract invalid or has been lifted, technology development contract research and development, technology transfer contracts grantor, technical advice and technical contract services contract have fulfilled the trustee or partial fulfillment of the obligations under the agreement, as well as to void the contract was revoked, or the fault of the other side, right it had fulfilled its part should receive research and development funding, technical fees, the provision of advisory services rendered, the people's courts can be identified as a result of other reasons for the contract invalid or revoked for the damage they caused.
Technology contracts invalid or revoked, the performance of the contract performed by the fruits of new technologies or technological achievements of the others on the basis of improved technology to complete the follow up the outcome of the rights and interests of share ownership, the parties agreed not to re-establish the people's courts can impose a complete technical achievements by the party to enjoy.
According to Article 12 of the Contract Law of the 329th against the technology of others, the secret was confirmed technical contract invalid, apart from the legal and administrative regulations as otherwise provided in the goodwill of the technology made a secret of the party can be obtained within the scope of the continued use of the technology secret, but it should be the right to pay reasonable royalties and assume obligation of confidentiality.
Both parties malicious collusion or party knows or should know that the other party is still Instead of tort or contract, tort belong to the common people's court should order the infringer bear joint liability and confidentiality obligations, access to technology secrets shall not be subject to use the technology secret.
In accordance with Article 13 of the former first paragraph can continue to use the technology secret and the right people on the use of payment disputes, the parties concerned any party may request a people's court to be addressed. Continued use of secret technology but refused to pay the toll, according to the people's court may request the right to use the ruling to stop using.
The People's Court in determining the use of time-consuming, often right under external license the technology secret royalty or the use of the technology were made secretly paid by user fees, and to consider the technology secret cost of research and development, transformation and application level and the use of the use of scale, economic benefits for in determining reasonable.
Regardless of whether the continued use of secret technology, the people's courts should have the right to order their pay has been in use during the royalties. People used to void the contract of the grantor to pay the tolls should be responsible for the return of the grantor.
Article 14 of the technical contract price, compensation and user fees, the parties agreed or not agreed not clear, the people's court in accordance with the following principles :
(A) contract for technical development and technology transfer contracts, according to the results of the technical research and development costs, advanced, and the implementation of the transformation and application level, the parties have the rights and responsibilities, and the results of cost-effective technologies such as determining reasonable;
(2) contract for technical advice and technical services contract, according to the advisory services of technical content, quality and quantity, and has produced and the economic benefits expected to flow from such established.
Technology contract price, compensation, toll includes non-technical funds, it should be calculated breakdown.
The 15th of the technical contract party to delay performance of the main debt, in the Urgency after 30 days have remained unfulfilled, and the other based on contract law, article 94 (3) of the decision to cancel the advocates, the people's courts should be supported.
Parties in the Urgency attached to fulfill the notification time limit for the more than 30 days, the people's court should be satisfied that the deadline for fulfilling the Contract Law article 94 (3) provides a reasonable time period.
The 16th of the parties to technology results but not funded enterprises granted expressly agreed to receive funded enterprises advocate of the technological achievements under their enjoyment of the people's courts generally should be supported, but the value of the technical achievements of the technical achievements and contributions to the share ratio is obviously unreasonable harm the interests of the investors except.
Parties to the outcome of the technical agreement has been granted to the proportion, as in common, their right to use and the distribution of benefits by the total results of the technical provisions, but otherwise agreed by the parties, from the agreement.
Parties to the outcome of the technical right to use a proportion of the agreement, the people's courts can be regarded as parties to implement the technical achievements of the proceeds from the distribution ratio, but otherwise agreed by the parties, from the agreement.
Two, technology development contract
Article 17 of the Contracts Act 330th alleged "new technology, new products, new processes, new materials and system," including the parties to formulate technology contracts are not yet available products, processes, materials and systems technology program, but no technical innovation of the products available remodel Technological change, materials and the adjustment of the formula for technical outcome of the certification, testing and use of the exception.
Article 18 of the Contracts Act, paragraph 4, of the 330th "between the parties on the value of industries with the transformation of scientific and technological achievements made by the implementation of" the transformation of technology contracts, is between the parties on the practical value industries have yet to attain the industrialized application of scientific and technological achievements, including initial technical results, so achieving the industrialized application of scientific and technological achievements of the goals, and they agreed to follow-up testing, development and application of the contents of the contract.
Article 19 of the Contracts Act 335th alleged "participation in the division of research and development work", including the parties in accordance with the agreed plan and the division of the respective common or design, process, test, prototype work.
Technology development contract party is only provided funds, equipment, materials and other material support or commitment collaboration matters and the other for research and development work, is commissioned development contract.
Article 20 of the Contracts Act 341st asserted "the parties have the use and transfer of rights", including both the parties without the consent of the other party or to their common use of the license permits the use of secret technology, and thus the advantage gained exclusive rights. A party will be the outcome of the secret technology transfer and the right to let others, or to exclusive or exclusive license to use the technology permits the use of secret, without the consent of the other party or the audacity to be so identified with the act invalid or permission.
Article 21 of the technology development parties to the contract in accordance with the provisions of the contract or agree to the use of the patent or technology secrets, but because it did not have an independent patent or the use of technology secret conditions to a general license or permit others to commit the use of the permit.
3, the transfer of technology contract
Article 22 of the Contracts Act 342nd of the "technology transfer contract", which means the legal owner of rights, including the right to other external transfer of technology, the existing specific patents, patent applications, technology secrets related rights and let others, or permit others to commit. use established by the contract. But on the research and development of outstanding technological achievements or not patents, patent applications or technology secret knowledge, skills, experience and information entered into the contract except.
Technology transfer contracts to the assignee of the grantor for the implementation of special equipment, raw materials, or provide relevant technical advice, technical services agreement, the transfer of technology is an integral part of the contract. Occurred as a result of disputes, in accordance with the contract to deal with the transfer of technology.
Technology shares subject to conclusion of the joint venture contract, but technology shares were not participate in the consortium operating management, and provisions to protect the end of the joint venture agreement on the form of joint venture or other pay its price or technology fees, as technology transfer contracts.
Article 23 patent applications parties to a contract to transfer the right to patent applications have been rejected or withdrawn as requested on the grounds of breach of contract, the facts in accordance with the Patent Law article 10, paragraph 3 provides for the assignment of patent applications prior to the registration, the people's court should be supported; The transfer occurred after the registration , does not support it, but otherwise agreed by the parties with the exception.
Patent applications for the right of patent application assignment contract established that there is not yet open to the same invention prior to the patent application was rejected, the parties based on contract law, Article 54, paragraph 1 (b) of the request be modified or revoked contract, the people's court should be supported.
The 24th set of the contract or the transfer of the franchise the right of patent application assignment contract, the grantor's own invention has been implemented, the date of the contract, the assignee requests to stop the implementation of the grantor, the people's courts should be supported, but otherwise agreed by the parties with the exception.
Set the grantor and the assignee of patents, patent applications assignment contract, without prejudice to the contract before the establishment of the grantor with others made by the relevant patent licensing contracts or technical secret transfer the validity of the contract.
The 25th of patent licensing include the following manner :
(1) exclusive licensing, refers to the grantor in the patent license agreement, within the context of this patent only permit the implementation of an assignee, according to the grantor implementation of the agreement shall not be patented;
(2) exclusive licensing, refers to the grantor in the patent license agreement, within the context of this patent license only one assignee, but it can be agreed according to the grantor to the implementation of the patent;
(3) The general license, is the grantor of the patent license agreement within the scope of license others to commit the patent, and its own implementation of the patent.
Parties to patent license agreement or no agreement is not clear, identified as ordinary license. Patent licensing contractual assignee others can license the patent, finds that the re - permission for the implementation of the general permit, but otherwise agreed by the parties with the exception.
The technology permits the use of secret manner, in the light of this article first, the provisions set.
The 26th of patent licensing contracts with the grantor of the contract period to maintain effective patent obligations, including the patent law to pay an annual fee and others made a positive response patents declared invalid request, but otherwise agreed by the parties with the exception.
Article 27 of the exclusive licensing contracts grantor does not have an independent implementation of its patent conditions for a general permit others to license the patent, the people's court can be identified as the grantor own patent, but otherwise agreed by the parties with the exception.
Article 28 of the Contracts Act 343rd alleged "use of the patent or the scope of secret technology", including the use of the patent or technological secrets period, place, manner and exposure to technology secrets staff.
Parties to the implementation or use of technology patents secret no deadline agreed or agreed not clear, the assignee or the use of the patent technology secret unlimited duration.
The 29th of the Contract Law of the 347th secret technology transfer contracts grantor's "obligation of confidentiality" is not to restrict their patent applications, but the parties have agreed not to apply for a patent for the grantor with the exception.
Between the parties to apply for a patent on the technical achievements made by the licensing contract, patent applications public before the transfer of secret technology applicable to the relevant provisions of the contract, the invention patent applications public after the previous authorization, which applies patent licensing provisions of the contract; After authorization, the original contract namely patent licensing contracts, the applicable patent licensing provisions of the contract.
The People's Court is not subject to patent applications have been authorized but not yet made the technology patent licensing contracts grounds that finds contract invalid.
4, technical consulting contracts and technical services contract
Article 30 of the Contracts Act, the 356th of the first alleged "specific projects", including the Science, Technology and coordinated economic and social development of soft scientific research projects and promote scientific and technological progress and modern management, improve economic and social benefits, such as use of scientific knowledge and technical means to investigate, Analysis, demonstration, evaluation, forecasting the number of technical projects.
31 parties to the contract technical advisory trustee conduct surveys and research, analysis and appraisal, as measured by the cost burden not agreed or agreed not clear, by the Trustee commitment.
Clients contract for technical advisory clients with the technical information and data or the Trustee of the advisory report and the comments had not agreed confidentiality obligations, a party is invoked, or delivered to a third person, not identified as violations, but against the other party to this the legitimate rights and interests and should When the law of civil liability.
32 of the technical advisory contract trustees found the information provided by the client, the data is obvious errors or defects, not within a reasonable time to inform clients of their right as a client to provide the technical information, data, etc. be permitted. Trustees of the client received notice of the correction in the not reply within a reasonable period of time and to rectify, the loss borne by the client.
Contract Law Article 33, paragraph 2 of the 356th alleged "specific technical issues," including the need to use technical expertise, experience and information solutions to improve the product mix, improving processes, improve product quality, reduce production costs, save energy resources and protect the environment to achieve safe operation and improve economic and social benefits such as professional and technical problems.
The 34th of the party is to provide technology transfer in the name has entered the public domain technology, or in technology transfer contract performance contract bid process technology into the public domain, but the technology provider for technical guidance and technical expertise for the other to address specific technical problems with the agreed conditions according to technical services contract, the agreement can be seen as a technology transfer fee for technical services rendered and costs, but laws, administrative regulations unless otherwise stipulated.
In accordance with the preceding section, the transfer fees as the provision of technical services and the cost of remuneration is obviously unreasonable, the people's court in accordance with the parties to determine a reasonable request.
The 35th of the parties for technical services contract to provide services trustee burden of the cost of agreed or not agreed not clear, by the Trustee commitment.
Technical services clients trustees found the information, data, samples, materials, and so on working conditions not agreed, not within a reasonable time to inform its clients, as its clients with the right conditions to be approved. Trustees of the client received notice of the correction in the not reply within a reasonable period of time and to rectify, the loss borne by the client.
Article 36 of the Contracts Act 364th of the "training contracts", which means the party is entrusted to the other students designated for a specific project professional technical training and technical guidance established by the contract, not including vocational training, culture and learning in accordance with industry, corporations or other the organization plans to launch a union-time education.
The 37th of the parties to the technical training necessary venues, facilities and test conditions, such as working conditions for the provision and management responsibility not agreed or agreed not clear from the client responsible for the provision and management.
Technical training contract client sent students do not meet agreed conditions, affecting the quality of training, in accordance with the agreement by the client paid.
Trustees with the teachers do not meet agreed conditions, affecting the quality of training, or not in accordance with the scheme trustees and training projects, leading to achieve the agreed goals should be to reduce or waive the reward.
The trustees found that students do not meet agreed conditions or clients found teachers do not meet agreed conditions, not within a reasonable time to inform the other party, or the party received no notification within a reasonable time frame agreed by Hashimoto, should have to fulfill obligations by the parties to undertake corresponding liability.
Article 38 of the Contracts Act 364th provides "technical intermediary contract," is a party to knowledge, technology, experience and information to the other party and the third person to enter into a contract for technical links on the performance of the contract and to provide specialized services established by the contract.
Article 39 of the intermediaries engaged in activities of the intermediary, the intermediary refers clients and the third person to enter into technology contracts, contacts, activities expenditure on communications, transport and the necessary study and other expenses. Intermediaries are paid to intermediaries is the third client and the technology to enter into contracts and to fulfill the contract for services should be the proceeds.
Parties to intermediaries and intermediaries to the cost burden not agreed or agreed not clear from intermediaries commitment. The parties have agreed that the costs borne by the clients but have not agreed on specific amount or method of calculation from the client to pay intermediaries intermediaries expenditures necessary expenses.
Parties to intermediaries no amount of remuneration agreed or agreed not clear, and should be based on intermediaries for the services reasonably determined by the client commitment. Only the client and the third person to enter into the technical contract terms agreed intermediary, but did not agree to pay or agree to pay intermediaries is not clear, it should be the remuneration paid by the client and the third the average bear.
The 40th was supposed to be intermediaries client and the third between the technical contract established, it would be paid at the request of the people's courts will not support; His request to pay its clients and intermediaries to request the necessary expenses and should be supported, but otherwise agreed by the parties with the exception.
Intermediaries hide technology contract with the formation of important facts or providing false information against the interests of the client, should be free of compensation and liability.
41 intermediaries to create client and the third between the technical contract invalid or revoked without fault, and the technology contracts invalid or revocation does not affect the provisions or intermediary technology intermediary contracts remain in force and intermediaries in accordance with the agreement or the interpretation of the relevant provisions involved in payment intermediation costs and compensation, and the people's courts should be supported.
Intermediaries and intermediaries to collect fees and compensation should not be regarded as client and the third between the technical contract disputes party losses.
5, and the hearing of the technical contract dispute on the procedural issues
42 parties to the contract and other technical content of the contract or to the different types of technology contracts, as provided in a contract, the parties shall, in accordance with the rights and obligations of controversial content, determine the nature and causes.
Names and technical contract agreement between the rights and obligations of inconsistency, it should be in accordance with the rights and obligations of the agreement, which established the type of contract and brief.
Technology transfer contract for the underwriting agreement grantor or repurchase assignee implementation contract bid technology products, not only because of the grantor or unable to fulfill all subscribe or repurchase obligations arising from the dispute, do not involve technical problems, it should be in accordance with the terms of the underwriting agreement, or repurchase the rights and obligations as indeed by finalized.
43 of the technical contract dispute cases are generally from the Intermediate People's Court over jurisdiction.
The Higher People's Court, according to the actual situation of the area reported to the Supreme People's Court approved, may designate certain jurisdiction of the People's Court of First Instance grassroots technology contract dispute cases.
Other judicial interpretation of the technical contract disputes jurisdiction, unless otherwise stipulated by regulations.
Contract both technical content of the contract, there are other contract, the parties on the technical content of the contract and other contract were contentious, with the technical contract disputes jurisdiction of the courts accept.
The 44th of the party to litigation over technical contract against others requested on the grounds of technical results confirmed the contract invalid, or the people's court in dealing with technical contract disputes that may exist found invalid before the people's court should notify the relevant stakeholders in accordance with the law, as an independent claim the third party to the proceedings or the law of the people's courts have jurisdiction to prosecute separately.
Interested in after receiving the notice is not filed within 15 days of proceedings does not affect the people's court in the hearing of cases.
The 45th of the third to the admissibility of the technical contract dispute cases People's Court on the subject of technology, contract or tort granted at the request of this subject v. People's Court has jurisdiction, can be granted or infringement disputes and contract disputes before the merger; By v. People's Court did not have jurisdiction and should be tell them to the people's court has the jurisdiction to prosecute or otherwise admissible to have ownership or infringement dispute the jurisdiction of the case to the People's Court. Ownership or infringement disputes separate case admissible, the contract dispute should discontinue proceedings.
Patent licensing contracts proceedings, the assignee or the third person to the Committee requested the patent reexamination patent declared invalid, the people's court may not stay proceedings. The trial process patent has been declared invalid, according to the Patent Law Article 47, paragraphs 2 and 3 of the regulations.
Six other
The 46th of the layout design of integrated circuits, new plant varieties permits the use and transfer of such contract disputes, the relevant administrative regulations, unless otherwise stipulated by the application of its provisions; No requirements applicable to the general principles of contract law, and can refer to the 18th chapter of contract law and the interpretation of the relevant provisions.
Computer software development, licensing and transfer of contractual disputes, copyright law and other laws and administrative regulations, as otherwise provided in accordance with its provisions; No requirements applicable to the general principles of contract law, and can refer to the 18th chapter of contract law and the interpretation of the relevant provisions.
This interpretation of the 47th since January 1, 2005 has come into effect.
