International Technology Transfer Trade
Technology transfer refers to the transfer of the knowledge of the technology supplier about the manufacturing of a certain product, the application of a certain processing method or the provision of a certain service system to the technology recipient, but does not include transactions involving only the sale of goods or only the lease of goods. The scope of technology transfer is very wide, including not only product manufacturing technology, but also the application technology of product processing methods or technological processes, as well as the provision of various independent or supporting technical services. The subject matter of technology transfer is intangible technical knowledge, including patented technologies and trademarks protected by the industrial property law, as well as proprietary technical secrets not protected by the industrial property law.
The so-called international technology trade refers to the behavior that the technology supplier transfers the technical knowledge related to the manufacturing of a certain product, the application of a certain processing method or the provision of a certain service system across the border to the recipient, and the technology recipient pays the supplier a fee, that is, commercial international technology transfer. International technology trade is mainly conducted between enterprises or governments. Since the development of science and technology has made significant progress in recent decades, its position in economic and social development has become increasingly important, and international technology trade has also made rapid development, which has exceeded the speed of the development of trade in tangible goods. In the actual international technology trade, there are basically three forms, namely, the transaction of pure introduction of technical knowledge, the transaction of combination of introduction of technology and imported equipment, and the transaction of combination of introduction of technology and introduction of foreign capital. The specific use of which is determined by both parties according to their own conditions and needs.
The parties to international technology trade mainly trade by signing technology transfer agreements or licensing agreements. The technology transfer agreement is generally used for the transaction of know-how. Because the proprietary technology secret does not belong to the industrial property technology and is not protected by the industrial property law, its obligee does not enjoy the exclusive right or exclusive right. If the technology is known to the public for some reason, such as disclosure, or other people obtain the same technology through independent research, the person who has mastered the technology can use it without obtaining the permission of others. Therefore, the license agreement should not be used for the sole transfer of know-how, but the technology transfer agreement should be used. In fact, most international technology trade is conducted by means of licensing agreements. The so-called license agreement refers to a contract in which the licensor agrees the licensee to use, manufacture or sell its patent, or agrees the licensee to use its trademark, and the licensee pays a certain amount of remuneration as the consideration for obtaining the right of use. As patents and trademarks are the objects protected by the Industrial Property Law, their obligees enjoy exclusive and exclusive rights. Anyone who needs to use them must obtain the permission of the obligee, or they will bear civil liability for infringement. According to the different degree of the licensor’s authorization to the licensee in the license agreement, the license agreement can generally be divided into three categories: first, the exclusive license agreement, that is, the licensee has the exclusive right to use, manufacture or sell the technology under the license agreement within the period of validity specified in the agreement and the designated region, and neither the licensor nor any third party can use the technology to manufacture or sell products in the region during the period of validity. The second is the exclusive license agreement, that is, the licensee has the exclusive right to use the technology under the license agreement within the validity period specified in the agreement and the designated area, and no third party is allowed to use the technology in the area within the validity period. The third is the general license agreement, also known as the non-exclusive license agreement, that is, the licensor allows the licensee to use the technology under the agreement in the specified region and within the specified period, but the licensor reserves the right to use the technology by itself or permit a third party to use the technology in the region. In these three types of license agreements, the license authorization and legal status obtained by licensees are very different, and the remuneration demanded by licensors is also different. In specific practice, the parties to international technology trade should decide which license agreement to sign according to their own needs, market prospects, competition and the nature of technology.
The license agreement is the legal basis for the parties to the international technology trade to determine their respective rights and obligations. The content of the license agreement is complex and involves many legal issues. Its main clauses include the preface, the definition of key words, the technical content and scope, the license and authorization clauses, the technical improvement and development clauses, the tying clauses, the technical service clauses, the guarantee clauses, the confidentiality clauses, the payment and liquidation of remuneration, the account book inspection, the most preferential treatment clauses Breach of contract and its remedies, force majeure and situation change clauses, dispute resolution and legal application, and the effectiveness, termination, expiration and extension of the agreement.