科技企业破产阶段专利拍卖模型及启示

专利权的有效性以按时缴纳年费为前提，一旦企业破产清算完毕主体资格将被注销，虽然专利仍有价值，但却将因无人缴纳年费而终止。在破产阶段，专利拍卖能够实现技术转移。通过对专利特征、拍卖动机、拍卖模型、多竞拍者拍卖等因素的研究，得出结论：如果破产后企业所有者希望继续使用专利技术，则其不会启动专利拍卖程序；如果专利拍卖的成本低于专利拍卖的成交额，债权人委员会将启动专利拍卖程序；专利的前期研发成本越高，则拍卖成交的概率越大；参与竞拍的企业数量越多，则拍卖获得较高成交额的概率越大；以竞拍联盟形式参与专利拍卖，能够降低每家竞拍企业的成本和风险。由此提出明确专利强制拍卖情形、降低专利拍卖成本、鼓励专利组合拍卖、采用集中竞拍、多形态专利拍卖等建议。

Patent auction model in the bankruptcy period of technology companies and enlightenment

    The validity of patent right is based on timely payment of annual fee. Once the patentee goes bankruptcy, the qualification of enterprise entity will be cancelled. Although the patent itself still has value, patent right will be terminated because no one pays annual fee after bankruptcy. During bankruptcy period, patents can be used to realize the technology transfer through auction procedure, which can not only repay the debts of enterprises to maximum extent, but also extend the validity and value of these patents. This article focuses on the question: how to achieve the continuation of patent value through patent auctions during the bankruptcy period of technology companies.     Patent is different from general property, auction is different from bilateral negotiation, bankruptcy is different from enterprise existence, so it is necessary to fully consider the cross areas formed by these three differences. Recent academic research has clearly demonstrated three levels: first, patent is a property right that can be transferred through auction; second, the disposal of patent rights should be carefully considered during bankruptcy period; third, the auction method can maximize the benefits during bankruptcy period, and different auction method greatly affects the probability of final transaction. On the basis of existing research, this article focuses on next level: establishing a patent auction mechanism during the bankruptcy period.    Through the study of patent characteristics, auction motivation in bankruptcy period, basic patent auction model and multi bidders auction model, five basic propositions are obtained. First, if the business owner wishes to continue using the patented technology after bankruptcy, he will not initiate patent auction procedure by his own. Second, if the cost of the patent auction is lower than the revenue of patent auction, patent auction procedure should be activated by creditor committee. Third, the higher R&D cost of a patent, the greater probability of patent will be sold by auction. Fourth, the more companies that participate in patent auction, the greater probability of patent to obtain a higher revenue. Fifth, allowing to participate in patent auctions in form of alliances can reduce the cost and risk of each company members.    Based on the research design above, five proposals are proposed. First, clarify the situation of compulsory patent auction. For state-owned enterprises, state-funded projects, and debt enterprises, there should be considered to start a compulsory patent auction procedure during bankruptcy period. Second, reduce the cost of patent auctions. The delivery of auction information can be achieved through industry associations, patent union organizations and other organizations. Internet companies have established auction platforms in recent years, and competition between auction platforms will also help reduce the cost of patent auction. Third, patent portfolio auction should be encouraged. Patent portfolio has more patent types, covers a larger scope of protection, and reduces the duplication cost in evaluating each patent. Fourth, use centralized bidding instead of single inquiry. In the specific auction process, try to use the mode of centralized bidding by multiple companies, which can not only create an auction atmosphere, but also help to get a higher revenue. Fifth, encourage a multi-modal patent auction model. British auction mode, Dutch auction mode, First-Price auction mode and Second-Price auction mode can be introduced to patent auction procedure, which can be able to find the most suitable model for patent auction during bankruptcy period in practice.   On June 18, 2020, the China Auction Industry Association issued the "Intellectual Property (Patent) Auction Regulation", which is implemented on October 1, 2020. This regulation fills the gap in China′s patent auction standards and speed up the transfer of patent rights. For bankrupt enterprises, patent assert can be auctioned in accordance with this regulation during bankruptcy period, which can not only realize the continuation of the patent value, but also be beneficial to repay debts to creditors.