Pudong opens up new channels for the application and value realization of intellectual property rights, supporting the development of financing leasing
Intangible assets such as patents can also be leased through financing. Enterprises can rent the intellectual property rights they need for their operations from financing leasing companies, or exchange their own intellectual property rights for the "real gold and silver" needed for enterprise development through financing leasing. Recently, the fourth meeting of the 16th Standing Committee of the People's Congress of Shanghai passed the "Several Provisions on Promoting the Development of Financial Leasing in Pudong New Area in Shanghai", which will be officially implemented from October 1, 2023.
The reporter learned from the Pudong New Area Intellectual Property Bureau that the "Several Provisions" of this legislation, among which Article 7 involves intellectual property, allows Pudong New Area financing leasing companies to carry out intangible asset financing leasing business such as patent rights, and requires them to obtain relevant rights of leasing targets and establish an evaluation system.
Article 7 of the "Several Provisions" clarifies that "if a financing leasing company carries out financing leasing business for intangible assets such as patents in accordance with regulations, it shall obtain relevant rights to the leasing subject matter, establish a sound value evaluation and pricing system that adapts to the characteristics of intangible assets, and reasonably determine the level of rent. Financing leasing companies shall closely monitor the risk coverage level of intangible asset value on financing leasing claims, scientifically determine the value of intangible assets, and formulate effective risk response measures."
The relevant person in charge of the Intellectual Property Office of Pudong New Area stated that this clause includes four major breakthroughs and innovations. Firstly, it clarifies for the first time that intangible assets such as patents can be used to carry out financing leasing business, opening up new channels for enterprises to use and realize the value of intellectual property; The second is to determine for the first time the relevant rights of the leasing subject matter that need to be obtained in operation; The third is to clarify the value evaluation, pricing system, and rental level of intangible assets that are different from fixed assets; The fourth is to propose regulatory prevention and control measures for risk monitoring in response to the particularity of intangible assets. "The series of breakthroughs in legislation will lay a solid foundation and lay a solid foundation for further promoting the establishment of a sound system for intellectual property financing leasing."
For a long time, there have been significant controversies in judicial practice regarding the use of "intangible assets" as leased property. For example, the "Guidelines for Handling Cases of Financial Lease Contract Disputes" organized by the Shanghai High Court clearly pointed out that "using fee rights, trademark rights, and patent rights as leased property does not constitute a financial lease contract." Therefore, in the intellectual property securitization cases explored in various places throughout history, as long as the asset package constitutes a financial lease with intellectual property as leased property, there has been a lack of clear legal provisions and operational basis.
This "Several Provisions" to some extent breaks through the restrictions of the "Interim Measures for the Supervision and Administration of Financial Leasing Companies" and the "Interim Measures for the Supervision and Administration of Shanghai Financial Leasing Companies" on the need for leased property to be "fixed assets", reflecting the promotion and innovation of the "Several Provisions" to the development of financial leasing business, especially in the field of intellectual property rights.
Financial leasing is the third largest debt financing tool after bank loans and public market bond issuance. It is one of the industries that are most closely integrated with the real economy in the financial field, and also an important financial means to promote "Made in China" to go global and actively participate in international market competition. The Several Regulations will further promote the high-quality development of financing leasing and the high-level application of intellectual property rights in Pudong New Area, strengthen the function of financial services for the real economy, and have significant implications for promoting the construction of the core area of Shanghai International Financial Center and actively integrating and serving the construction of a new development pattern.
Text: Must be in pairs