China`s patent law was first passed in 1984 and amended twice since then, in 1992 and 2000. China passed the third amendment to the PRC Patent Act in 2008, which came into force in 2009. One of the significant changes to this amendment was co-ownership, as the current legislation did not address the rights of patent co-owners. The new law now contains a provision that defines the rights of patent co-owners. It provides that a co-owner, unless the co-owners agree otherwise, has the right to operate the common patent alone or to grant a non-exclusive licence to a third party for the operation of that patent, and that all royalty taxes resulting from such a licence must be distributed among all co-owners. All other types of common patent operations must be agreed upon by all co-owners. Therefore, under this new law, the granting or issuance of an exclusive license for a common patent must be agreed upon by all the co-owners of that patent. It is important that intellectual property is agreed in a cooperation agreement before work takes place, although I accept that this is often not possible. At least intellectual property should be discussed and agreed upon before money is spent on the patenting process.
When a company pays for innovative external work that is done, it generally expects to own any intellectual property. It can also expect to manage patent filings with the Patent Office and maintain all patents issued at its own expense. As a general rule, a company will attempt to own all the inventions relevant to its activities, but it must accept that the other party, particularly when it is a university, may have intellectual property. In this case, the company will generally apply for exclusive access rights for a trading period. Intellectual property rules may vary depending on different national laws and it is therefore important to take this into account. Ownership of the work product is one of the central themes of independent contracting. As a general rule, the work of an independent contractor is the property of the contractor and not the company. An exception is that it is considered a “work for rent” described in the next section. IPAG recommends the following model agreements, which can be used at different stages of technology research and marketing transactions. These agreements are available in English and German.
These include dispute resolution clauses relating to WIPO mediation and WIPO Expedited Arbitration. The intellectual property clause contained in an independent contractual agreement could also be characterized as a ownership clause or a clause relating to labour products. Here, the clause states that it is the company, not the contractor, that owns the working product – and all the intellectual property rights on the working product – of the agreement. The easiest way to do this is to give the company ownership of the work product, including intellectual property rights. The parties may also include a “Work Made For Hire” clause which states that the work product should be considered work owned by the company and not by the contractor. For more information on working product ownership, see our discussion section below. In addition, the clause may indicate how the changes to the ip granted are in possession. On the one hand, if the taker alters or improves intellectual property, who owns this change? If the licensee is the owner, is the licensee required to license the licensee for the use of this amendment? On the other hand, the licensee automatically receives a license for this change or must obtain a new license if the donor changes or updates the intellectual property during the agreement (for example. B if a new version of the licensed software is released).
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