Ningbo divorce patent copyright income attribution 5 steps to determine

One party is a programmer, designer, R & D personnel or self-media author. Patents applied for, published works and software developed during marriage begin to generate income. Whether and how the money can be divided during divorce often becomes the focus of controversy. The problem with intellectual property rights is that the right itself has personal attributes, but the proceeds may belong to the joint property of the husband and wife. A clear separation of rights and benefits is the first step in dealing with such property.

1. the distinction between the proceeds of intellectual property rights and the rights themselves.

Article 1062 of the Civil Code classifies proceeds of intellectual property as joint property of the spouses. To be clear, it is the "benefits" that are divided here, not the "rights" themselves. Personal rights in copyright, signature rights in patent rights, and registered exclusive rights in trademark rights have personal exclusivity and belong to the individual right holder and cannot be divided in the event of divorce. Only property gains that have been acquired or have been explicitly available during the marriage are joint property of the husband and wife.

The legal logic of the separation of rights and benefits.

The creation of intellectual property rights often requires long-term investment, and there may be a time lag between the registration of rights and the realization of proceeds. If the right is acquired before marriage and the income is generated after marriage, whether the income is common property depends on whether the income is based on common labor or resources after marriage.

Time node of common property

the proceeds of intellectual property rights acquired during the existence of a marital relationship are, in principle, common property. The criteria for judging "acquisition" or "clear availability" include the fact that the contract has been signed, the authorization has been approved, the license fee has been determined, the work has been published and generates calculable income, etc. Proceeds that are only in the creative stage, have not yet signed a contract or have not been authorized, are generally not treated as realistically divisible property.

Marital attribution of 2. patent proceeds.

Patent revenue mainly includes patent transfer fees, royalties, operating income after patent implementation, and infringement compensation. If the patent application date is during the marriage and the relevant technology is completed after marriage using the common time, funds and equipment of the husband and wife, the proceeds generated by the patent are generally recognized as the joint property of the husband and wife.

The distinction between pre-marital research and development and post-marital realization.

If the technical scheme has been completed before marriage and the patent or authorization has been applied for after marriage, it depends on the formation time of the technical achievements. If the core research and development is completed before marriage, after marriage only for application and form maintenance, the proceeds may still tend to personal property.

Duty Invention and Enterprise Rights and Interests

if the patent belongs to the service invention, the right holder only enjoys the right of signature and part of the reward, and the main income belongs to the unit, then the husband and wife can divide the reward, remuneration and subsequent income share actually obtained by the individual. If a party holds an equity interest in an enterprise and receives dividends through the implementation of a patent by the enterprise, it is also subject to a separate judgment based on the value of the equity and the nature of the dividends.

The division of property income of 3. copyright.

Copyright proceeds include manuscript fees, royalties, license fees, network dissemination proceeds, adaptation licensing fees, etc. Works are created and published during the marriage, and the resulting proceeds are generally the joint property of the husband and wife. If the work is created before marriage, after marriage to generate income, and after marriage has not been substantially modified or promoted, the proceeds are more recognized as personal property.

Network Works and We Media Revenue

the processing of self-media accounts and their content proceeds is more complicated. Because the account itself has personal attributes, it usually belongs to the actual operator; the operating income generated by the account during the marriage relationship, such as advertising share, reward, platform incentive, etc., belongs to the common property. For long-tail gains that continue to be generated after divorce, a one-time buyout may be agreed or distributed in proportion to the term.

Software Copyright and Source Code

the personal rights of software copyright belong to the developer, and the property proceeds are enjoyed by the developer or agreed with others. If the software is developed and put into operation during the marriage, the income, license fees, equity replacement value, etc. obtained after the marriage can be divided as common property. The source code itself should not be forced to split and can be handled by way of discount compensation.

The reference of 4. trademark and trade secret proceeds.

The proceeds from the registration, renewal and licensing of trademark rights, as well as the competitive advantages and economic benefits brought about by trade secrets, can be dealt with by reference to the principle of division of intellectual property proceeds. If a trademark is registered in the name of an individual but is used by a husband and wife to jointly operate a business, its commercial value and trademark proceeds may be more included in the common property.

The distinction between trademarks and goodwill

trademark is the object of rights, and goodwill is the intangible asset accumulated by business operations. In the event of a divorce split, the trademark may be assessed separately; goodwill is usually attached to the equity of the business and is treated together through an equity valuation. The two should not be confused.

Trade Secret Valuation Difficulties

trade secrets are difficult to value because they are not disclosed and usually require reference to evidence of the actual benefits, cost savings, and market share gains they bring. If a party claims that the trade secret is of great value, it shall provide supporting evidence such as sales contract, financial data, industry comparison, etc., and apply for judicial audit or evaluation if necessary.

Treatment of 5. unrealized gains

for intellectual property rights that have been created during the existence of the marriage relationship but have not yet been realized after the divorce or the amount of realization is uncertain, there are usually two ways to deal with them in practice: one is not to divide them temporarily during the divorce and to claim them after the actual income is obtained; The second is a one-time discount compensation, in which the obligee pays part of the estimated income to the other party.

Writing of reservation clause

the divorce agreement may state that the proceeds of a patent or work obtained after the divorce, such as license fees and royalties, shall be distributed within a certain period of time after receipt in accordance with the agreed proportion, or it may be agreed that the right holder shall pay a fixed amount in one lump sum to buy out all the rights of the other party to the future income. The terms should specify the scope of income, calculation method, payment period and liability for breach of contract, so as to avoid future disputes.

Key points of proof in litigation

the party claiming to divide the proceeds of intellectual property rights is required to prove that the right was formed or the proceeds were obtained during the marriage, that the amount or calculation of the proceeds can be determined, and that the proceeds are derived from the intellectual property. Common evidence includes patent certificates, copyright registration certificates, licensing contracts, platform revenue statements, bank flow, tax records, and so on.

6. case proof

according to similar adjudication rules, if one party applies for a patent during the existence of the marriage relationship and licenses it to another person to implement it, and a license contract has been signed at the time of divorce and the amount of the license fee is determined, the court usually divides the license fee that the patent has determined to be available as the joint property of the husband and wife, and the obligee pays half to the other party; for the subsequent license fee that may arise after divorce, a one, a one-off, a one-time or a one-time, the amount depends on the value of the patent and industry practice in the range of tens of thousands to millions of dollars. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

According to similar judgment rules, online novels created and published during the existence of the marriage relationship will continue to incur manuscript fees and adaptation authorization fees after divorce. If the divorce is not dealt with and the other party files a separate lawsuit after discovering the income, the court usually reviews the publication time, income source and creative investment during the existence of the marriage relationship, and supports the division of income actually obtained or clearly calculated according to common property, uncertain gains that have not yet occurred are not supported. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

7. Risk Alert

• confusing rights and benefits: Personal rights are indivisible and can only be divided between property gains that have been made or have been made.
• Unretained contracts and revenue vouchers: license contracts, platform statements, and lack of bank flow, resulting in undetermined revenue amounts.
• Ignoring the time boundary before and after marriage: the proceeds of pre-marital research and development after marriage may be recognized as personal property as a whole due to insufficient evidence.
• No agreement on future earnings: When a long tail of earnings is generated after a divorce, the parties litigate again, which is time-consuming and labor-intensive.
• Underestimating the value of patents implemented by enterprises: patent income is reflected through corporate dividends, not combined with equity value assessment resulting in missing points.

8. FAQ

can patent rights be divided during divorce?

The personal right of a patent, such as the right of signature, cannot be divided, but property gains such as patent transfer fees, license fees, and operating income that are acquired or clearly obtainable during the marriage relationship belong to the joint property of the husband and wife and can be divided.

Books written before marriage are published after marriage to make money, is the income common?

If the main creation of the work has been completed before marriage and only published after marriage, it usually tends to be personal property.

How to divide the divorce from the media account income?

The account itself has personal attributes and is usually attributed to the actual operator; the proceeds from advertising, rewards, and platform sharing generated during the marriage are divided according to common property. A one-time buyout or pro rata distribution of future earnings may be agreed.

After the divorce only to find out that the other party has a patent income in the marriage, can it be re-divided?

You can. The other party may file a separate post-divorce property dispute lawsuit for intellectual property proceeds that were not processed at the time of divorce, provided that it is proved that the proceeds were formed during the marriage and the amount can be determined.

Practical Experience of 9. Lawyers

in dealing with this type of property, the first cut is between rights and proceeds. The part with personal attributes in patents, works and trademarks-signature, modification and protection of the integrity of the work-is the owner's own and is not divided in divorce. What can be divided is the property income that has been obtained or can be obtained clearly during the marriage. The so-called clear can be obtained, refers to the contract has been signed, the license fee has been fixed, the authorization has been approved such a visible and tangible situation. The parties often equate what they wrote after marriage with what the other party can share with me, which is too fast.

The point of forensics is the point in time. When the patent application was filed, whether the technology used common time, funds and equipment to polish after marriage, when the work was completed, when the publication and authorization contract was signed, and when the money arrived at the account, these nodes determine who the income belongs. The part that has not yet been realized should be extra cautious: it is just that it has ideas in mind, has not signed a contract and has not been authorized, and usually will not be divided as real property. The other party will take this to claim, and most of them will not get support. On the contrary, if the contract has been signed and the amount of remuneration is clear, there is still room for claiming the money even if it arrives after divorce.

The strategy of the other side and the strategy of the creator should be looked at separately. If one of the spouses advocates division, put the landing point on the contract, authorization documents and receipt records, speak with verifiable income, and do not fight for the right itself. If the creator wishes to keep the future income, he can make arrangements in writing before or during marriage to clearly state the ownership of the rights and subsequent income, the sooner the better. At the time of negotiation, the income that has been determined is suitable for a one-time discount, and if it has not yet been determined, you can consider staging or setting up a floating arrangement to force the uncertain value into the current figure, both sides are not convinced.

The division of the proceeds of intellectual property rights should firmly grasp the principle of "the right belongs to the individual, the income depends on the time. Personal rights are indivisible, and only property gains that have been obtained or are clearly obtainable during the marriage are the joint property of the husband and wife. When dealing with different types of patents, copyrights, trademarks, trade secrets, etc., specific judgments should be made based on factors such as the time of right formation, the way of income realization, and the structure of enterprise implementation. It is suggested that the divorce agreement should make separate arrangements for the generated income and future income: the immediate division of the determined income, the reservation or buyout clause of the uncertain income agreement, and the key evidence such as the license contract, platform statement and bank flow should be kept to prevent the difficulty of proof in the future.