Research On Legal Issues Of Patent Securitization

With the vigorous development of the economy,enterprise financing has become more diverse.Asset securitization,a brand-new financing method,has developed rapidly in recent years in China.At the same time,the assets that can be used for securitization have become more and more abundant,including rental income,Hotel exhibition income,film box office income and so on.As a special intangible asset,patent is a magic weapon for enterprises to enhance their competitiveness.However,due to poor liquidity,it is difficult to commercialize and other congenital shortcomings,it can not provide the greatest value for enterprises.If the patent right can be used as the basic asset securitization,it will open up a new financing path for enterprises.It can not only solve the financing difficulties of countless small and medium-sized science and technology enterprises in China,but also bring the monopoly value of patents into full play.However,compared with traditional asset securitization,Securitization Based on patent rights may face more problems and risks.First,China's current legislation on patent asset securitization is significantly inadequate.Compared with developed countries such as the United States and Japan,China's asset securitization business started late,and the first practice of intellectual property securitization was just completed in 2018.There is no practical experience in the patent-based intellectual property securitization business.The lack of a sound legal system is the main reason for the slow development of China's asset securitization business.China's current "Patent Law" mainly focuses on the protection of patent rights,and there are no legal provisions related to the securitization of patent assets.Other rules and regulations related to asset securitization have no special provisions for securitization of patent assets.Second,the legal problems in the key link of asset transfer are urgently needed to be resolved.First of all,the basic assets in the process of securitization of patent assets are mostly future claims.China's "Contract Law" does not recognize the transfer of future claims.Secondly,"real sales" is the key to achieving risk isolation.At present,there is a lack of judgment standards for "real sales" in China.Finally,at present,China's asset securitization practice lacks control over the risks arising from asset transfer.As a special basic asset,patent rights may have transfer restrictions,and there are also large uncertainties in the evaluation of patent rights.It is impossible to clarify the legal issues in the process of transferring patent assets,which will become the biggest barrier to the development of patent asset securitization in China.Third,China's current law does not give a clear legal form to special purpose institutions.There is no clear provision for special purpose institutions in either the Company Law or the Trust Law.There is no bankruptcy law on whether a special purpose institution can go bankrupt.And detailed provisions on how to go bankrupt.These factors have brought many risks and uncertainties to the practice of securitization of patent assets.Based on the full introduction of the patent asset securitization,this paper puts forward the above three legal issues,and the main content of this paper revolves around these three legal issues.Firstly,in view of the lack of legislation related to patent securitization this problem,the author by reading literature,looking for information,study the United States,Japan and patent asset securitization legislation,and learn to Regulation in the United States AB laws and regulations,assets flowing law of Japan and so on all is the special legislation for asset securitization,and has been continually improved in practice.This paper takes this as a reference,combining with the actual situation and legislative mode of our country,puts forward legal Suggestions that we should start the special legislation of asset securitization.Secondly,in view of the legal problems in the key link of asset transfer,this paper tries to find out the root of the problems through the historical research method and literature research method,on the basis of the full study of the development history of asset securitization in China and the existing research.In patent evaluation of this aspect,the author understands the current worldwide still no unified standard about patent evaluation,this paper puts forward our country should introduce patent insurance system,and analyzes the patent value evaluation method to integrate in legal advice,further unified patent value evaluation standard,in the "true sale"judgment standard not clear this aspect,this article in the United States and Japan for"true sale" after the judgment standard,put forward the suitable for our country the status quo of the four "true sale" judgment.In the aspect of the risk of the transfer of patent assets,on the basis of the above Suggestions on launching the special legislation of asset securitization,this paper puts forward Suggestions on adding legal provisions related to the securitization of patent assets in China's contract law and patent law.Finally,in view of the legal problems of the special purpose vehicle,this paper first to our country in recent years,asset securitization practice case analysis,to understand the organization form of SPV in the current practice and the existing related risk,to study China's current relevant legal system of special purpose vehicle in draw lessons from foreign patent securitization,on the basis of mature practice,proposed our country should give special purpose vehicle clear legal status,to perfect the relevant legal provisions and special purpose vehicle of bankruptcy.