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Dayang Company v. Huanghe Company (Dispute over the Contract on Patent Licensing)
大洋公司诉黄河公司专利实施许可合同纠纷案
【法宝引证码】
  • Type of Dispute: IPR-->IPR Contract
  • Legal document: Judgment
  • Judgment date: 06-16-2004
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 9,2004

Dayang Company v. Huanghe Company (Dispute over the Contract on Patent Licensing)
(Dispute over the Contract on Patent Licensing)
大洋公司诉黄河公司专利实施许可合同纠纷案

Dayang Company v. Huanghe Company

 

大洋公司诉黄河公司专利实施许可合同纠纷案@#

(Dispute over the Contract on Patent Licensing)@# [裁判摘要]@#

@#

 专利技术实施许可合同生效后,专利技术许可方按合同的约定,向专利技术接受方提供包含专利技术的专用生产设备,使其用于生产和销售专利产品的,不构成合同法三百二十九条规定的“非法垄断技术、妨碍技术进步”的情形。@#

@#

 中华人民共和国最高人民法院民事判决书@#

Final Civil Judgment of the Supreme People's Court

@#

 (2003)民三终字第8号@#

No. 8 [2003] of the Third Civil Tribunal@#

 @#
BASIC FACTS@# 上诉人(原审原告):厦门大洋工艺品有限公司,住所地:厦门市思明区曾厝埯。@#

Appellant (Plaintiff of the First Instance): Xiamen Dayang Arts and Crafts Co., Ltd., situated at Zengcuoan, Siming District, Xiamen Municipality.@#

 法定代表人:陈建玲,该公司总经理。@#
Legal Representative: Chen Jianling, general manager of the company.@# 委托代理人:刘豫衡,福建天衡联合律师事务所上海分所律师。@#
Authorized Agent: Liu Yuheng, Attorney-at-law of Shanghai Branch of Fujian Tenet and Partners Law Firm.@# 委托代理人:白劭翔,福建天衡律师事务所律师。@#
Authorized Agent: Bai Shaoxiang, Attorney-at-law of Fujian Tenet and Partners Law Firm.@# 被上诉人(原审被告):厦门市黄河技术贸易有限公司,住所地:厦门市思明区龙虎南三里大洋山庄7号楼105室。@#
Appellee (Defendant of the First Instance): Xiameng Huanghe Technology Trade Co., Ltd., situated at Room 105, Building No. 7, Dayang Mountain Villa, Longhu Nansanli, Siming District, Xiamen Municipality.@# 法定代表人:吴骏琛,该公司董事长。@#
Legal Representative: Wu Junchen, board chairman of the company.@# 委托代理人:庄瑞明,福建厦门明嘉律师事务所律师。@#
Authorized Agent: Zhuang Ruiming, Attorney-at-law of Fujian Xiamen Mingjia Law Firm.@# 委托代理人:吴达新,厦门市黄河技术贸易有限公司总经理。@#
Authorized Agent: Wu Daxin, general manager of Xiameng Huanghe Technology Trade Co., Ltd.@# @#
PROCEDURAL POSTURE@# 上诉人厦门大洋工艺品有限公司(以下简称大洋公司)与被上诉人厦门市黄河技术贸易有限公司(以下简称黄河公司)专利实施许可合同纠纷一案,不服福建省高级人民法院(2003)闽知初字第2号民事判决,向本院提起上诉。本院依法组成合议庭公开审理了本案。本案上诉人大洋公司和被上诉人黄河公司的法定代表人均未到庭,双方当事人的委托代理人到庭参加诉讼。现案件已审理终结。@#
Xiamen Dayang Arts and Crafts Co., Ltd. (hereinafter referred to as Dayang Company) was not satisfied with the Civil Judgment No. 2 [2003] of the First Instance of the Higher People's Court of Fujian Province and appealed to this Court for the case concerning the dispute over the contract on paten licensing with Xiameng Huanghe Technology Trade Co., Ltd. (hereinafter referred to as Huanghe Company). This Court legally convened a collegial panel and publicly heard this case. The legal representatives of both parties did not appeare in court, but the authorized agents of both parties appeared in the court for litigation. This case has now been finalized.@# @#
BASIC FACTS@# 福建省高级人民法院审理查明:1999年11月19日,厦门市黄河贸易有限公司(甲方)与大洋公司(乙方)签订“专利技术合作及专利技术实施许可合同”一份,约定:乙方实施甲方拥有的专利技术项目是石材切压成型机,机器品牌为“黄河”牌NEW—668型石板材一次压制成型机;技术实施许可范围为甲方许可乙方在福建省范围内与甲方共同实施,并许可乙方同时独家在上海地区及日本国开发、生产、销售甲方拥有的专利项目及产品,乙方可以在日本国申请专利,独家生产销售;签订本合同后,乙方派员到甲方工厂由甲方负责对其进行技术培训,有关费用由甲方负责;合同签订后的10天内,乙方向甲方支付定金人民币50万元,甲方在收到定金后100天内,分批负责制造出本合同应供给乙方的生产线,并运抵乙方指定的工厂。机械设备在乙方所在地安装调试前支付30万元,安装调试合格后支付20万元;除上款规定付清100万元货款外,其余人民币400万元由乙方用厦门市湖滨北路建业西路阳明楼房产折人民币3724050元整。甲方同意上述款项抵本合同货款,但乙方应在本合同签订的两天内与甲方签订上述单元的购房合同并办理公证及产权变更手续。@#
Upon trial, the Higher People's Court of Fujian Province found that: On November 19, 1999, Huanghe Company (Party A) concluded a Contract on Patent Technological Cooperation and Patent Licensing (hereinafter referred to as the Contract) with Dayang Company (Party B), which stipulates that, Party B is allowed to exploit the patent of Party A, namely, the stone cutting, pressing and moulding machines, with the trademark of “Yellow River” NEW-668 One-off Stone Pressing and Moulding Machines; the patent licensing scope includes: Party A permits Party B to jointly exploit the abovementioned project within Fujian Province, to solely develop, produce and sell the patent project and products of Party A in Shanghai and Japan, and to apply for the patent and solely produce and sell patent products in Japan; after this Contract is concluded, Party B will assign its employees to Party A's factories, and Party A should be responsible for technical trainings of these employees, and the relevant fees incurred therefrom should be borne by Party A; within 10 days after this Contract is concluded, Party B should pay 500,000 yuan of earnest money to Party A, and Party A should, within 100 days upon receipt of the earnest money, manufacture production lines by batches that should be provided to Party B under this Contract, and transport these production lines to the factories as designated by Party B; and Party B should pay 300,000 yuan before the machines and equipment are installed and debugged at its place, and 200,000 yuan after the machines and equipment are found to be qualified after installation and debugging; except for the 1 million yuan that should be paid off under the aforesaid paragraphs, the remaining 4 million yuan should be offset by the 3,724,050 yuan converted from Party B's Yangming Real Estate situated at Western Jianye Road, Northern Hubin Road, Xiamen Municipality. Party A agrees to offset the contractual price with the aforesaid money, but Party B should conclude the contract on purchasing houses of the aforesaid units and handle the formalities for notarization and property right alteration within two days after this Contract is concluded.@# 合同签订后,大洋公司按合同约定将阳明楼房产交付给厦门市黄河贸易有限公司抵合同款,但未按照合同约定支付定金。@#
After the Contract was concluded, Dayang Company transferred Yangming Real Estate to Huanghe Company for offsetting the contractual price, but did not pay the earnest money as stipulated.@# 1999年11月25日,厦门市黄河贸易有限公司与泉州市丰泽区北峰液压机械厂签订“委托加工合同”,委托其生产黄河牌NEW-668A型石板材一次压制成型机50台及黄河牌特种模具250付,并已支付合同款项。1999年12月23日,厦门市黄河贸易有限公司与厦门阳兴兴业输送机有限公司签订“产品制造协议书”,订制重型悬挂输送机3条,当挂物输送线运抵大洋公司的生产基地安装时,遭到大洋公司项目负责人王冠的阻拦,导致输送线无法安装,后来依大洋公司通知,厦门阳兴兴业输送机有限公司又将输送线运回。因大洋公司不允许安装设备,时任厦门市黄河贸易有限公司法定代表人吴达新只好通知泉州市丰泽区北峰液压机械厂暂停生产机器及模具等。双方签订的专利技术合作及专利技术实施许可合同停止履行。@#
On November 25, 1999, Huanghe Company concluded a Contract on Entrusted Processing with Quanzhou Fengze Beifeng Hydraulic Pressure Machinery Factory (hereinafter referred to as Beifeng Factory) and entrusted it to produce 50 “Yellow River” NEW-668 One-off Stone Pressing and Moulding Machines and 250 special “Yellow River” moulds, and paid the contractual price. On December 23, 1999, Huanghe Company concluded an Agreement on Product Manufacturing with Xiamen Yangxing Xingye Conveyor Co., Ltd. (hereinafter referred to as Xingye Company) for booking three heavy overhead conveyors. When the overhead conveyors were transported to Dayang Company's production bases for installation, Wang Guan, the person in-charge of the project in Dayang Company, stood in the way, which resulted in the failure to install transmission lines. Afterwards, Yangxing Company transported back the transmission lines upon the strength of the notice of Dayang Company. Since Dayang Company did not permit the installation of machines and equipment, Wu Daxin, the legal representative of Huanghe Company at that time, had to notify Beifeng Factory of suspending the manufacturing of machines and moulds, etc. And both parties ceased the performance of the Contract.@# 2000年1月21日,厦门市黄河贸易有限公司致函大洋公司,认为其已经按合同约定履行了相关义务,要求大洋公司支付定金50万元。2000年1月26日,针对厦门市黄河贸易有限公司的来函,大洋公司复函,提出对方的产品没有专利权保障,且由于市场其他供货商每一平方米的产品市价仅为25元等因素,将导致其无法实现合同目的,要求厦门市黄河贸易有限公司提出解决方案,否则将依合同法规定申请法院予以撤销或变更合同。2000年1月28日,针对大洋公司1月26日来函,厦门市黄河贸易有限公司又函告大洋公司,辩驳大洋公司终止或变更双方签订的合同无理。2000年3月1日,厦门市黄河贸易有限公司再次致函大洋公司,要求大洋公司立即履行双方所签的合同。此后,双方没有再为履行合同等问题进行过接触或协商,厦门市黄河贸易有限公司也没有向法院申请撤销或变更讼争的合同。@#
On January 21, 2000, Huanghe Company sent a letter to Dayang Company and expressed that it had fulfilled the corresponding duties as stipulated and asked Dayang Company to pay 50,000 yuan of earnest money. On January 26, 2000, Dayang Company gave a reply, in which it said that Huanghe Company's products were not guaranteed by patent, and the market price of the products of other suppliers for each square meter was only 25 yuan, thus the contractual purpose could not be realized. So it requested Huanghe Company to put forward a solution, otherwise, it would apply to the court for rescinding or altering the Contract according to the Contract Law. On January 28, 2000, Huanghe Company answered Dayang Company's letter and refuted that the rescission or alteration of the Contract was unreasonable. On March 1, 2000, Huanghe Company sent another letter to Dayang Company and requested it to immediately perform the Contract. Afterwards, both parties no longer contacted or consulted with each other for the performance of the Contract, and Huanghe Company also did not file any complaint with the court for the rescission or alteration of the Contract.@# 一审法院审理认为,1999年11月19日,大洋公司与厦门市黄河贸易有限公司签订的“专利技术合作及专利技术实施许可合同”系双方自愿签订的专利技术实施许可合同,合同内容没有违反法律、行政法规的强制性规定,是有效合同,应受法律保护。合同签订后,大洋公司虽然已将厦门阳明房地产开发有限公司的房产抵作合同款项履行合同部分义务,但其未依合同规定交付定金并继续履行完付款义务,已构成违约,而厦门市黄河贸易有限公司在履行合同部分义务后,因遭到大洋公司的无理阻拦而被迫停止合同的继续履行。现大洋公司以黄河公司没有履行合同等为理由要求解除合同没有事实依据,讼争合同尚不具备《中华人民共和国合同法》规定的解除合同的条件,双方签订的“专利技术合作及专利技术实施许可合同”也没有特别约定合同解除的条件,据此,在厦门市黄河贸易有限公司不同意解除合同的情况下,大洋公司单方解除合同及返还款项的请求不应得到支持。合同双方停止履行合同至本案起诉时期间虽已达三年多,但《中华人民共和国合同法》并没有规定提出解除合同应受诉讼时效的限制,因此,厦门市黄河贸易有限公司答辩认为本诉已经超过诉讼时效缺乏依据,其主张不予采纳,但其认为大洋公司要求解除合同无理应予驳回诉讼请求的答辩,应予支持。综上,依据《中华人民共和国民事诉讼法》第六十四条第一、二款,及《中华人民共和国合同法》第八条的规定,判决:驳回原告厦门大洋工艺品有限公司的诉讼请求。案件受理费35010元由原告厦门大洋工艺品有限公司负担。@#
Upon trial, the court of first instance held that, the Contract concluded between Dayang Company and Huanghe Company On November 19, 1999 was out of the free will of both parties, and the contents therein did not conflict with the compulsory provisions in the laws or administrative regulations, so the Contract was valid and should be protected by the law. Although Dayang Company had offset the contractual price by the real estate of Xiamen Yangming Real Estate Development Co., Ltd. and had partly performed the Contract after the Contract was concluded, it did not pay the earnest money and continue to pay the remaining price under the Contract, which had constituted a breach of contract. At the same time, Huanghe Company was forced to terminate the performance of the Contract after having partly performed his duties because of Dayang Company's irrational hindrance. There was no factual basis for Dayang Company's request to rescind the Contract for the sake of Huanghe Company's failure to perform the Contract, and the conditions for rescinding contracts as prescribed in the Contract Law were not met, and the Contract did not specially stipulate the conditions for the rescission thereof, so the claims of Dayang Company for unilaterally rescinding the Contract and refunding the contractual price could not be supported since Huanghe Company was unwilling to rescind the Contract. More than three years had elapsed since the date when both parties suspended the performance of the Contract to the date when this case was filed, but the Contract Law does not prescribe that the claim for rescinding contracts shall be governed by the limitation of action, so the argument of Huanghe Company that the limitation of action has expired is groundless and could not be adopted. However, the argument of Huanghe Company that the claim of Dayang Company for rescinding the Contract was unreasonable and should be rejected should be supported. Based thereon, it was adjudicated according to Paragraphs 1 and 2 of Article 64 of the Civil Procedure Law of the People's Republic of China and Article 8 of the Contract Law of the People's Republic of China that: the claims of Dayang Company should be rejected. The 35,010 yuan of case acceptance fee should be borne by Dayang Company.@# 厦门大洋工艺品有限公司不服福建省高级人民法院的一审判决,向本院上诉称:1.本案讼争的“专利技术合作及专利技术实施许可合同”无效,理由是:(1)该合同违反了法律强制性规定。被上诉人实施专利许可的目的是为了强制并高价销售并非实施该专利必不可少的设备,属于“非法垄断技术、妨碍技术进步”的行为。(2)被上诉人通过欺诈手段,诱使上诉人做出错误的意思表示,与之签订技术合同是无效的民事行为。被上诉人不是专利权人,声称是专利权人,导致了上诉人作出签约的错误意思表示。2.一审法院的判决显然是不合理的,且与合同法规定不符。双方已经停止履行合同三年多,合同目的即实施专利技术的目的已经失去,要求各方回到合同签订当时的状况,继续履行合同显然是不合理的。应该判决解除合同。请求二审法院撤销原判,改判被上诉人向上诉人返还因合同所取得的财产,判决由被上诉人承担本案全部诉讼费用。@#
Dayang Company was not satisfied with the judgment of the first instance rendered by the Higher People's Court of Fujian Province and appealed to this Court by alleging that: 1. The Contract should be invalid because: (1) It violated the compulsory provisions of law. Huanghe Company exploited the patent for the purpose of selling at high prices by force the equipments which were indispensable for exploiting the patent, so it was an act of illegally monopolizing technology and impeding technological progress. (2) Huanghe Company induced Dayang Company to make a misrepresentation by fraudulent means, so the technology contract as concluded should be invalid. Huanghe Company caused Huanghe Company to make a misrepresentation and conclude the Contract by alleging it was the patent holder when it was not. 2. The judgment of the first instance was clearly improper and was contradictory to the Contract Law. Both parties had ceased the performance of the Contract for more than three years and it was no longer possible to realize the contractual purpose of exploiting the patent, so the judgment of the first instance was clearly improper by requesting both parties to resume the situation when the Contract was concluded and to continue the performance of the Contract. On the contrary, it should adjudicate to rescind the Contract. Therefore, Dayang Company motioned the court of the second instance to overrule the original judgment and to order Huanghe Company to return the property obtained under the Contract and assume all the legal costs for this case.@# 被上诉人黄河公司答辩称:1.上诉人主张本案诉争合同“非法垄断技术、妨碍技术进步”而无效没有法律依据,该合同是合法有效的。本案诉争的合同目的是专利技术产品的销售及使用许可,设备是合同的必然组成部分,石材切压成型机是包含着被上诉人的专利技术的机器,是专用设备。上诉人要使用被上诉人的专利技术,购买该机器是必需的。2.上诉人主张被上诉人通过欺诈手段,诱使上诉人做出错误的意思表示签订合同没有事实依据。3.一审法院以讼争合同不具备合同法解除合同的条件,驳回上诉人解除合同的诉讼请求符合法律规定。上诉人有关合同目的已经丧失且无法履行的主张不能成立。4.上诉人一审起诉已经超过了诉讼时效,其民事权利不应受到保护。请求二审法院维持一审判决。@#
Huanghe Company responded that: 1. There was no legal basis for Dayang Company to claim that the Contract should be invalid for the reason that it illegally monopolized technology and impedes technological progress; on the contrary, this Contract should be valid and effective. The purposes for concluding the Contract in question were to sell and use the patent products and use of the licensed patent, while the equipment was a necessary part of the Contract, and the stone cutting, pressing and moulding machines were the machines on which Huanghe Company's patent was used, and hence a special equipment. So, Dayang Company must purchase such machines if it wanted to use Huanghe Company's patent technology. 2. There was no fact that can prove Dayang Company's claim that Huanghe Company induced Dayang Company to make a misrepresentation and conclude the Contract. 3. The judgment of the first instance court was consistent with the legal provisions whereby it overruled Dayang Company's claim of rescinding the Contract on the ground that the Contract did not meet the conditions for rescinding contracts as prescribed in the Contract Law. Dayang Company's claim that it was no longer possible to realize the contractual purpose and the Contract could not be performed could not be established. And 4. The limitation of action had expired when Dayang Company brought the case to the first instance court, so its civil rights should not be protected. Therefore, it motioned the court of the second instance to sustain the judgment of the first instance.@# 本院二审期间,经询问当事人和庭前交换证据,确认本案双方当事人争议焦点如下:1.本案讼争合同是否存在《中华人民共和国合同法》第三百二十九条规定的“非法垄断技术、妨碍技术进步”的情形,该专利实施许可合同是否因此导致无效?2.本案是否因被上诉人黄河公司的欺诈行为导致合同无效?3.《中华人民共和国合同法》第一百一十条第(三)项的规定是否适用于本案合同的解除?4.本案被上诉人黄河公司是否全面履行合同约定的义务?@#
During the second instance hearing, this Court inquired the parties involved and arranged for them to exchange evidences before trial, and confirmed that the focuses of dispute between both parties were: 1. Whether the Contract in question is an act of illegally monopolizing technology and impeding technological progress as prescribed in Article 329 of the Contract Law and should thus be invalidated? 2. Whether the Contract should be invalidated due to Huanghe Company' frauds? 3. Whether the provisions in Item (3) of Article 110 of the Contract Law should be applied to the rescission of the Contract in question? And 4. Whether Huanghe Company had fully performed the duties as stipulated in the Contract?@# 本院经审理查明,一审法院所查明的事实属实,双方当事人的诉讼代理人对一审法院查明的事实没有异议。@#
Upon trial, this Court found that: the facts as verified by the court of the first instance were true, and the authorized agents of both parties had no objection to any of them.@# 本院另查明厦门市黄河贸易有限公司名称变更情况:1994年11月2日,厦门市黄河贸易有限公司成立,2001年2月19日,经厦门市工商行政管理局批准,变更企业名称为厦门市黄河技术贸易有限公司,营业期限自1994年11月2日至2009年11月2日。@#
This Court also investigated into the alteration of Huanghe Company's name: On November 2, 1994, Xiamen Huanghe Trade Co., Ltd. was established, and on February 19, 2001, it changed its name into Xiamen Huanghe Technology Trade Co., Ltd. upon approval of the Bureau of Industry and Commerce of Xiamen Municipality, and its term of business started from November 2, 1994 and would end on November 2, 2009.@# 本院还查明,上诉人大洋公司在一审起诉时,以厦门市黄河贸易有限公司未履行合同义务为由,要求解除与之签订的“专利技术合作及专利技术实施许可合同”,判令返还因该合同取得的财产。在一审开庭时,大洋公司委托代理人请求变更诉讼请求为确认双方签订的“专利技术合作及专利技术实施许可合同”无效。一审法院以大洋公司变更诉讼请求已经超过举证期限为由,对大洋公司变更诉讼请求不予允许。@#
In addition, this Court found that, when Dayang Company filed the lawsuit in the first instance court, it claimed to rescind the Contract for the sake of Huanghe Company's failure to fulfill the contractual duties and pleaded the court to order Huanghe Company to return the property obtained under the Contract. During the court session of first instance, the authorized agent of Dayang Company requested to change the claim into the confirmation of the Contract as invalid. The court of the first instance rejected Dayang Company's request for altering the claim because the aforesaid request was put forward after the time limit for producing evidence.@# 本院认为:根据已经查明的事实,被上诉人黄河公司已经履行了双方所订立合同约定的大部分义务,其尚未履行的部分也是由于上诉人大洋公司的阻拦而造成。上诉人大洋公司未支付50万元定金等行为违反合同约定,导致了本案专利实施许可合同未全面履行完毕。对此,上诉人大洋公司应当承担违约责任。@#
This Court holds that: in light of the facts as verified, Huanghe Company has fulfilled most of its duties as stipulated in the Contract, and the remaining duties have not been fulfilled because of Dayang Company's impediment. Dayang Company has violated the Contract by failing to pay the 500,000 yuan of earnest money, which results in the incomplete performance of the Contract. So, Dayang Company shall assume the liabilities for breach of contract.@# 上诉人大洋公司一审中先是主张解除该专利实施许可合同,后又超过期限要求变更诉讼请求确认合同无效,未得到一审法院的允许。在二审中,上诉人大洋公司再以合同存在非法垄断技术、妨碍技术进步为由,请求确认合同无效。这一诉讼请求本不属于上诉人大洋公司起诉的诉讼请求范围,但鉴于被上诉人黄河公司在二审中针对上诉人大洋公司提出的导致本专利实施许可合同无效的理由,作了实质性答辩,并同意将此作为本案争议焦点,因此,二审法院在庭审过程中对此问题也进行了法庭调查,双方当事人也发表了法庭辩论意见。@#
During the course of first instance trial, Dayang Company first claimed for rescinding the Contract and then requested to alter the claim and to affirm the Contract as invalid after the time limit expired, which was not permitted by the court of the first instance. During the course of second instance trial, Dayang Company requested to affirm the Contract as invalid by alleging that the Contract illegally monopolized technology and impeded technological progress. This claim could not have been put forward by Dayang Company, but considering that Huanghe Company has made a substantial defence in the second instance trial with regard to the reasons for invalidating the Contract as put forward by Dayang Company, this Court consents to take this problem as a focus of dispute of this case. Therefore, this Court has conducted inquiries about it, and both parties have also delivered their opinions in court debate.@# 根据《中华人民共和国合同法》第三百二十九条规定,“非法垄断技术、妨碍技术进步”的行为,是指要求技术接受方接受非实施技术必不可少的附带条件,包括购买技术接受方不需要的技术、服务、原材料、设备或者产品等和接收技术接受方不需要的人员,以及不合理地限制技术接受方自由选择从不同来源购买原材料、零部件或者设备等。本案讼争专利实施许可合同涉及的石材成型机是包含专利技术的专用设备,上诉人实施该技术,购买该机器设备是必需的。依据专利实施许可合同的约定,实施该专利技术所使用的设备包括主机、特种模具及传送带,以建立造价为人民币五百万元的生产线。上诉人大洋公司从被上诉人黄河公司处约定获得的专利实施许可,并不是制造专利产品(即石材切压成型机),而是通过使用该专利产品生产、销售最终产品石材。因此,在专利实施许可合同中约定由技术许可方提供履行合同所需要的专用设备并不违反法律、法规的规定。上诉人大洋公司称这些设备是被上诉人强加于上诉人的,但未举证证明其主张。故其以“非法垄断技术、妨碍技术进步”的上诉理由确认合同无效不能成立。@#
Pursuant to Article 329 of the Contract Law, the act of “illegally monopolizing technology and impeding technological progress” means that the transferee of the technology is required to accept the incidental conditions unnecessary for exploiting the technology, including the purchase of technologies, services, raw materials, equipment or products which are unnecessary for the transferee, the acceptance of the personnel unnecessary for the transferee, and the irrational restrictions over the transferee's free choice and purchase of raw materials, accessories and parts or equipment, etc. As the stone moulding machines involved in the Contract are the special equipments that contain the patent in question, so it was necessary for Dayang Company to purchase these machines for purpose of exploiting the patent technology. According to the Contract, the equipment for exploiting the patent technology includes the mainframes, special moulds, conveyor belts, as well as the production lines whose costs are 5 million yuan. The patent license obtained by Dayang Company from Huanghe Company is not used for manufacturing patent products (namely stone cutting, pressing and moulding machines) but for producing and selling final stone materials by using the patent products. Therefore, the stipulations in the Contract that the technology licensor provides special equipment necessary for performing the Contract are not contradictory to the provisions of any law or regulation. Although Dayang Company claimed that these equipments were imposed on it by Huanghe Company, it failed to prove this with evidence. So, the reasons for affirming the Contract as invalid on the ground that the patent illegally monopolized technology and impeded technological progress could not be established.@# 本案诉争的专利实施许可合同第三条写明了涉案专利的申请日、专利申请号、专利号、专利有效期、专利证书号等涉及该专利技术的有关真实信息。该合同签订时,被上诉人黄河公司(其前身为厦门市黄河贸易有限公司)的法定代表人吴达新即为石材切压成型机实用新型专利权人。黄河公司作为本案讼争合同的许可方,并没有实施未经专利权人许可的侵权行为,其当时的法定代表人亦为合同许可方的签字人即专利权人,合同所约定的权利义务也未侵害专利权人或他人合法权益。所以认为该合同系被上诉人欺诈而订立理由不足。作为专利实施许可合同的被许可方,在合同中已经写明涉及专利相关信息的情况下,也有义务审查合同内容的真实性,避免不必要的商业风险。根据现有的证据,本专利实施许可合同是双方当事人的真实意思表示,合同内容亦未违反国家法律法规规定,应当认定为有效合同。上诉人大洋公司认为被上诉人黄河公司的欺诈行为导致合同无效的上诉理由不能成立。@#
Article 3 of the Contract in question clearly states the relevant true information about the patent technology involved in this case, such as the date of application, number of application, serial number, valid term and serial number of the certificate of the patent involved in this case, etc. When the Contract was concluded, Wu Daxin, the legal representative of Huanghe Company, was the patent holder of the utility model of stone cutting, pressing and moulding machines. Huanghe Company, as the licensor of the Contract, has not committed any infringement without the patentee's licensing, and its legal representative at that time was also the signatory of the contractual licensor, and the rights and obligations as stipulated in the Contract have not damaged the lawful rights and interests of the patent holder or any other person. Therefore, the reasons for the claim that the Contract was concluded out of Huanghe Company's fraud are insufficient. The licensee of the patent also has the duty to examine the authenticity of the contents in the Contract and avoid unnecessary commercial risks under the circumstance that the Contract has clarified the relevant information about the patent. In light of the available evidence, the Contract should be affirmed as valid because it was concluded under the true will of both parties and its contents are not contradictory to the laws or regulations of the state. The reasons of Dayang Company for the invalidation of the Contract due to Huanghe Company's frauds could not be established.@# 上诉人大洋公司在一审提起诉讼时,其诉讼请求仅为解除该专利实施许可合同,被上诉人黄河公司也未提出过追究对方违约责任的诉讼请求。一审法院根据合同的效力、履行情况、大洋公司的违约责任及当事人的诉讼请求等,判决驳回大洋公司诉讼请求并无不当。本院考虑本案所涉石板材一次压制成型机实用新型专利仍然为有效专利,且上诉人大洋公司已经支付了大部分的合同款项,许可方黄河公司亦履行了提供合同约定的设备等义务,只要双方当事人本着重合同守信用的原则,平等协商,经过努力合同目的亦可以实现。即使双方当事人今后根据情况拟终止履行合同,也应在依法承担相应责任的基础上,对善后事宜另行平等协商。@#
Dayang Company filed the lawsuit in the first instance court only for rescinding the Contract, and Huanghe Company also did not claim for holding Dayang Company liable for the breach of contract. Thus, it is correct for the court of the first instance to reject the claim of Dayang Company on the basis of the effectiveness and performance of the Contract, the liabilities of Dayang Company for breach of contract as well as the claims of the parties involved, etc. This Court holds that the purpose of the Contract can be realized if both parties try their best according to the principle of strictly abiding by the Contract and being trustworthy since the patent of utility model involved in this case is still effective, Dayang Company has paid most of contractual price, and Huanghe Company has also performed the obligation of providing the equipment as stipulated in the Contract. Even if both parties plans to terminate the Contract afterwards in light of the actual situation, they can separately negotiate equally about the follow-up matters on the basis of assuming corresponding liabilities according to law.@# @#
JUDGMENT@# 综上所述,一审判决认定事实清楚,适用法律正确。依据《中华人民共和国民事诉讼法》第一百五十三条第一款第(一)项之规定,判决如下:@#
In conclusion, the facts were clearly ascertained and the law was correctly applied in the judgment of the first instance. This Court adjudicates as follows according to Item (1) of Paragraph 1 of Article 153 of the Civil Procedure Law of the People's Republic of China:@# 驳回上诉,维持原判。@#
The appeal should be overruled and the original judgment should be sustained.@# 一审案件受理费35010元,二审诉讼费35010元,共计70020元由上诉人厦门大洋工艺品有限公司承担。@#
The 35,010 yuan of case acceptance fee for the first instance and the 35,010 yuan of litigation costs for the second instance, totaling 70,020 yuan, should be borne by Dayang Company.@# 本判决为终审判决。@#
This judgment shall be final.@# 审 判 长  王永昌@#
Chief Judge Wang Yongchang@# 代理审判员  段立红@#
Acting Judge Duan Lihong@# 代理审判员  李 剑@#
Acting Judge Li Jian@# 二00四年六月十六日@#
June 16, 2004@# 书 记 员  崔丽娜@#
Court Clerk Cui Lina

 

     
     
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