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Liu Bingzheng v. Beijing Kangda Automobile Installation & Repair Factory (A case about disputes over a Contract on Licensed Patent Implementation)
刘秉正诉北京市康达汽车装修厂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: 05-25-1989
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 3,1989

Liu Bingzheng v. Beijing Kangda Automobile Installation & Repair Factory (A case about disputes over a Contract on Licensed Patent Implementation)
(A case about disputes over a Contract on Licensed Patent Implementation)
刘秉正诉北京市康达汽车装修厂专利实施许可合同纠纷案

Liu Bingzheng v. Beijing Kangda Automobile Installation & Repair Factory
(A case about disputes over a Contract on Licensed Patent Implementation)

 

刘秉正诉北京市康达汽车装修厂

 专利实施许可合同纠纷案
BASIC FACTS 
Plaintiff (transferor): Liu Bingzheng, male, 51 years old, assistant engineer of Beijing Power Supply Bureau (now remaining at post without salary) 原告(转让方):刘秉正,男,51岁,北京市供电局助理工程师(现停薪留职)。
Attorney: Shi Zhiqing, lawyer of Beijing No.2 Law Office 委托代理人:史治清,北京市第二律师事务所律师。
Attorney: Cheng Yong, laboratory technician of the Analysis Office of the Mining & Metallurgy Research Institute 委托代理人:程勇,矿冶研究院分析室化验员。
Defendant (transferee): Beijing Kangda Automobile Installation & Repair Factory (former Beijing No.2 Orphanage Garage) 被告(受让方):北京市康达汽车装修厂(原北京市第二福利院汽车修理厂)。
Legal representative: Zhao Fugui, factory director 法定代表人:赵福贵,厂长。
Attorney: Jia Xiaomei, lawyer of Beijing No.3 Law Office 委托代理人:贾小梅,北京市第三律师事务所律师。
For disputes over a contract on licensed patent implementation, the plaintiff, Liu Bingzheng, brought a lawsuit against the defendant, Beijing Kangda Automobile Installation & Repair Factory, and Beijing Intermediate People's Court legally formed a collegiate bench and through an open trial found that: 原告刘秉正诉被告北京市康达汽车装修厂专利实施许可合同纠纷案,北京市中级人民法院依法组成合议庭,经公开审理查明:
On April 28, 1987, the plaintiff, Liu Bingzheng, entered into a contract with the defendant, Kanda Automobile Installation & Repair Factory, on licensed patent implementation of “heating stove using honeycomb briquettes” (patent number: 85201863.0), which provided that: the plaintiff should be responsible for providing the technical drawings and technical disclosure, and help the defendant produce independently the heating stoves using honeycomb briquette as soon as possible; the defendant should be responsible for investment, production facilities, material transportation and product sales, and pay an introduction fee of 400 yuan to the plaintiff each month for three years after the effective date of this contract; while the plaintiff was helping the defendant with work at the factory, the defendant should pay proper wages to him; after the sales of products, the defendant should pay patent technology royalties to the plaintiff calculated as per 4% of the sales revenue; the defendant should not transfer this technology to a third party; if any party to the contract breached any relevant provisions of the contract, the violating party should pay a default fine of 20,000 yuan to the opposite party. 1987年4月28日,原告刘秉正与被告康达汽车装修厂签订了“蜂窝煤采暖炉”专利实施许可合同(专利号:85201863.0),合同规定,原告负责提供技术图纸和技术交底,并尽快帮助被告能独立生产蜂窝煤采暖炉;被告负责投资、生产设备、材料运输和出售产品,每月给付原告入门费400元,从合同生产之日起3年为止;原告在被告厂帮助工作期间,由被告发给适当工资;商品销售后,提取销售额的4%作为专利技术实施费支付给原告;被告不得将该项技术转让给他方;合同当事人如有一方违反合同的有关条款,由违约方偿付对方违约金2万元。
After the conclusion of the contract, the plaintiff went to the factory of the defendant with the patent materials and technical drawings of this technology to perform technical instructions, and directly participated in the manufacture of heating stoves using honeycomb briquettes. On May 9, 1987, the plaintiff successively assembled the first sample stove with worn-out materials; and, on June 5, assembled the second sample stove. During this period, the defendant, under the direct instructions of the plaintiff, drew out new technical drawings on the basis of the original technical drawings and sample stoves. By then, the defendant had completely mastered the patent technology of manufacturing heating stoves using honeycomb briquettes. However, the defendant failed to pay the introduction fee as agreed upon in the contract to the plaintiff, and only paid a wage of 100 yuan. In July of the same year, disputes arose from the two parties. Thereafter, the plaintiff had never gone to the factory of the defendant to perform technical instructions. On November 10, 1987, with the participation of their attorneys, the two parties entered into a supplementary agreement through negotiation, which mainly provided that: both parties agreed to continue performing the contract; the plaintiff waived the introduction fees of 1,600 yuan for four months from May to August, and the defendant voluntarily proposed to pay the introduction fees of 1,200 yuan for three moths from September to November. Meanwhile, they expressly agreed that the defendant should pay an introduction fee of 400 yuan to the plaintiff as usual on the 5th day of each month; when the plaintiff received the introduction fee of 1,200 yuan, he should provide a set of latest drawings and a sample stove for manufacture reference to the defendant. They also agreed verbally to go to the Beijing Patent Agency to conduct the formal registration formalities for the aforesaid agreement on November 12, the plaintiff went there with the drawings as agreed upon, but the defendant neither showed up nor paid the introduction fees of 1,200 yuan. Therefore, the plaintiff brought a lawsuit in the Beijing Intermediate People's Court in January 1988, requesting the court to rule that the defendant should pay the introduction fees of 2,800 yuan from May to November and pay a default fine of 20,000 yuan according to the provisions of the contract; and the contract should be rescinded. The defendant contended that: the plaintiff had not presented any technical drawing of this product to the defendant since the conclusion of the contract, and only temporarily drew some sketches for demonstration, which caused that the already produced sample stoves could not be tested, and there lacked the standards for examining the eligibility of the technology and quality. For these reasons, they did not pay the introduction fees to the plaintiff. Because the failure of full performance of the contract was caused by both parties, and the liability of the plaintiff was greater than that of the defendant, the defendant requested that the plaintiff should pay a default fine and compensate for economic losses of 5,000 yuan. 合同签订后,原告即带着该项技术的专利资料、技术图纸到被告厂进行技术指导,并直接参与蜂窝煤采暖炉的制造。1987年5月9日,原告用废旧材料组装出第1台样炉;6月5日又组装出第2台样炉。在此期间,由原告直接指导,在原技术图纸、样炉的基础上,被告绘制出新的技术图纸。此时,被告已完全掌握了制造蜂窝煤采暖炉的专利技术。但合同规定给付原告的入门费,被告却分文未付,只给了100元工资。同年7月份,双方发生争议。从此,原告再未到被告厂进行技术指导。1987年11月10日,在委托代理人的参与下,经协商,双方又签订了一份补充协议,内容主要是:双方商定继续履行合同;原告提出放弃5至8月份4个月的入门费1600元,被告主动提出支付9至11月份的3个月的入门费1200元。同时明确议定每月5日被告照付原告入门费400元;原告收到1200元入门费的同时,交给被告最新图纸一套,并送一台样板炉供被告制造时参考。双方口头约定11月12日去北京市专利事务所对上述协议办理正式登记手续,原告按约带图纸前去,但被告未去,也未支付1200元入门费。为此,原告于1988年1月向北京市中级人民法院起诉,要求法院判令被告给付5至11月份入门费2800元;按合同规定偿付违约金2万元;并要求解除合同。被告答辩认为,合同签订至今,原告未向被告出示过该产品的技术图纸,只是临时画些草图示意,使已生产出来的样炉无法检验,技术、质量是否合格亦无标准。因此,未向原告支付入门费。合同没有全面履行的原因是双方造成的,而且原告责任大于被告,故要求原告偿付违约金和5000元经济损失。
PROCEDURAL POSTURE 
Through trial, in the opinion of the Beijing Intermediate People's Court: the contract on licensed patent implementation and the supplementary agreement, signed by the plaintiff and the defendant concerning the technology of “heating stove using honeycomb briquettes”, were concluded on the basis of equality, mutual benefits and consensus, and the contents of them were in conformity with the relevant legal provisions. When the “supplementary agreement” was concluded, the Law of the People's Republic of China on Technology Contracts (“Law on Technology Contracts”) had come into force, and according to the provision of Article 16北大法宝,版权所有 of this law that “As soon as a technology contract is formed according to law, it shall have the legally binding force”, this contract was a valid one. The relevant evidence proved that the plaintiff went to the factory of the defendant many times to offer instructions for the production and assembly of sample stoves, during the performance of the contract. On this basis, the plaintiff also instructed the defendant to draw out the new technical drawings and make them into blueprints with the patent documents as the foundation. The technical drawings and patent documents all could be taken as the standards for testing the technology and quality of products, and the defendant, after mastering this technology, failed to produce the “heating stove using honeycomb briquettes” in bulk for reasons of lacking raw materials, etc., not for technical reasons. Therefore, the plaintiff had performed all the obligations under the contract, and the arguments of the defendant were not tenable. The defendant's failure to pay the introduction fees according to the provisions of the contract constituted a breach of contract, and according to the provision of Article 24 of the Law on Technology Contracts that where a breach of contract by the other party had caused the performance of a technology contract to be unnecessary or impossible, a party should have the right to notify the other party of rescission of the contract, the grounds of the plaintiff for rescinding the contract signed with the defendant were legitimate and should be supported. According to the provision of Article 41法小宝(1) of the Law on Technology Contracts, for the defendant failed to pay the royalty according to the contractual provisions, it should pay a default fine according to the contract provisions. Hence, on June 30, 1988, this court ruled as follows: 北京市中级人民法院审理认为:原告和被告就“蜂窝煤采暖炉”技术签订的专利实施许可合同和补充协议,是在平等互利、协商一致的基础上签订的,内容符合有关的法律规定。因“补充协议”签订时,《中华人民共和国技术合同法》已经生效,依照该法第十六条关于“技术合同依法成立,即具有法律约束力”的规定,该合同是有效合同。根据有关证据证明,原告在履行合同的过程中,多次到被告厂指导生产、组装样炉。在此基础上,原告又指导被告绘制出新的技术图纸,并晒成蓝图,且有专利文件作为依据。该技术图纸、专利文件均可作为检验产品技术质量的标准,被告在掌握了该项技术后,未能批量生产“蜂窝煤采暖炉”,是因为缺少原料等,并非技术原因。因此,原告履行了合同规定的全部义务,被告答辩的理由不能成立。被告未按照合同规定支付入门费是违约行为,依照技术合同法二十四条关于由于另一方违反合同,致使技术合同的履行成为不必要或者不可能的,当事人一方有权通知另一方解除合同的规定,原告提出解除与被告签订的合同的理由是正当的,应予支持。依照技术合同法四十一条第一款的规定,因被告未按合同规定支付使用费用,应按照合同规定支付违约金。据此,该院于1988年6月30日判决如下:
1. The defendant, Kanda Automobile Installation & Repair Factory, should pay the introduction fees of 2,800 yuan from May to November 1987 to the plaintiff, Liu Bingzheng; 一、被告康达汽车装修厂给付原告刘秉正自1987年5月11月份的入门费2800元;
2. The defendant, Kanda Automobile Installation & Repair Factory, should pay a default fine of 20,000 yuan to the plaintiff, Liu Bingzheng; 二、被告康达汽车装修厂给付原告刘秉正违约金2万元;
3. The contract on licensed patent implementation signed by the plaintiff and the defendant should be rescinded; and 三、解除原告和被告签订的专利实施许可合同;
4. Other claims of the defendant should be dismissed. 四、驳回被告的其他诉讼请求。
The total amount in items 1 and 2 above was 22,800 yuan, which should be paid to the plaintiff by the defendant within ten days after the effective date of this judgment. 以上一、二项共计22800元,被告应自本判决生效后10日内付给原告。
The court costs of 252 yuan should be paid by the defendant. 诉讼费252元,由被告负担。
After the judgment of the first instance, the defendant, Kanda Automobile Installation & Repair Factory, appealed this judgment to the Beijing Higher People's Court on the ground that “the plaintiff, Liu Bingzheng, breached the contract first by failing to provide the technical drawings.” 一审判决后,被告康达汽车装修厂不服,以“原告刘秉正没有提供技术图纸违约在先”为由,向北京市高级人民法院提出上诉。
JUDGMENT'S REASONING 
Through trial, in the opinion of the Beijing Higher People's Court: the appellee, Liu Bingzheng, in the performance of the contract, went to the Kanda Automobile Installation & Repair Factory of the appellant with the patent materials and technical drawings, and instructed in person the defendant to implement this patent technology, produce two sample stoves and draw out the new drawings, which had enabled the transferee to master the patent technology for producing heating stoves using honeycomb briquettes. Meanwhile, after inquiry, the relevant state department on standards expressed the view that for an individual technical invention that lacked the conditions for making a blueprint, as long as it had detailed pencil drawings, such detained pencil drawings should be deemed as the formal drawings. The above facts showed that the appellee had performed his obligations in accordance with the contractual provisions. The appellant's appeal ground was not tenable. The supplementary agreement, signed by both parties on November 10, 1987, was concluded on the basis of equality, mutual benefits and consensus. This agreement, though not performed, had already been formed, and was a valid agreement. It was improper for the original judgment to still award the introduction fees of 1,600 yuan to the appellee, which had been waived by Liu Bingzheng in the supplementary agreement. 北京市高级人民法院审理认为:被上诉人刘秉正在履行合同中,带着专利资料和技术图纸到上诉人康达汽车装修厂,亲自指导实施该项专利技术,指导生产出两台样炉,并指导上诉人绘制出新的图纸,使受让方掌握了生产蜂窝煤采暖炉的专利技术。同时,经询问国家有关标准部门认为,个人的技术发明,缺乏晒制图纸的条件,只要有详尽铅笔绘图,应视为正式图纸。上述事实说明,被上诉人已经按合同规定履行了应尽的义务。上诉人的上诉理由不能成立。1987年11月10日双方签订的补充协议是在平等互利、协商一致的基础上签订的。该协议虽未履行,但已经成立,并且是有效协议。原审判决将刘秉正在补充协议中已主动放弃的1600元入门费仍判归被上诉人不当。
JUDGMENT 
On May 25, 1989, in accordance with the provisions of Article 151(1)(a) and (b) of the Civil Procedure Law of the People's Republic of China (for Trial Implementation), the Beijing Higher People's Court ruled as follows: 1989年5月25日,北京市高级人民法院依照《中华人民共和国民事诉讼法(试行)》第一百五十一条第一款第一、二项的规定,判决如下:
1. Items 2, 3 and 4 of the original judgment should be sustained; 一、维持原审判决第二、三、四项;
2. Item 1 of the original judgment should be revoked, and the appellant, Beijing Kanda Automobile Installation & Repair Factory, should pay the introduction fees for three months totaling 1,200 yuan to the appellee, Liu Bingzheng; and 二、撤销原判决第一项,改判上诉人北京市康达汽车装修厂给付被上诉人刘秉正三个月入门费共计1200元。
3. The court costs of 252 yuan for the trial of each instance should be paid by the Kanda Automobile Installation & Repair Factory.

 一、二审诉讼费各252元,均由康达汽车装修厂负担。
 

     
     
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