| In the context of economic globalization, knowledge and high technology has shown great productivity. However, due to the lack of intellectual property innovation capacity the development and application of intellectual property, especially patent development has become the key point to enhance competitiveness of enterprises. Low intellectual property transformation rate has long been a bottleneck of enterprise development, while asset-backed securities as a new means of financing in nowadays market shows great vitality, the basis of asset securitization has also become extensive. More than ten years ago, the United States had already introduced intellectual property to asset backed security field which caused wide concern in both theory and practice circle. Intellectual property backed securitization has achieved effective integration of knowledge capital and financial capital, and greatly improved the utilization of intellectual property.As an innovative mean of financing, patent backed securitization could convert the fixed patent into productivity to solve the problem of low transformation rate and help small, medium enterprises and high-tech companies to solve their financing problems, it can also create a brand-new field of asset securitization. However, the birth of new thing always faces pain, few foreign experiences of asset securitization, slim domestic theoretical research, the highly professional feature of patent backed securitization which involves legal, accounting, financial knowledge and wide range of risks brought by the special nature of the underlying assets, all of these formed the legal obstacles of patent backed securitization in the existing domestic legal framework. In the background of innovation building country, the clarification legal problems involved in the issue has great significance in exploring the Chinese way of patent backed securitization.Aiming at the particularity of patent assets, this paper firstly explains legal relationships of asset backed securitization; analyzes practical legal barriers and risks of the process from external legal environment and the specific feature of patent. Then returns to the patent underlying assets, analyzes in-depth types and legal essence-right of credit of securitizable underlying assets, and the principles and technology of patent pool construction. On this basis, following the operation process of the patent backed securitization the paper then analyzes specifical legal issues related to underlying assets transfer and risk isolation from point to area, including the issues of the transferability of patent underlying assets, legal obstacles of various means of transfer, conditions of patent assets to achieve "true sale", potential post-transfer risks and special legal issues emerged in constructing and operating of SPV. Lastly, based on the conclusion of foreign experiences, the paper provides a patent backed securitization modes that the government should develop pilot pioneer and legislative should go ahead of the rest. |
