If the written contract should be adopted but not adopted, it will bring the risk of dispute and the difficulty of proof for the establishment of contract relationship and the determination of contract type. However, even if laws and administrative regulations stipulate that a contract should be concluded in the form of a title, the absence of a written form by the parties does not mean that the contractual relationship between the parties cannot be established.

According to Article 490 of the civil code, the contract shall be concluded in written form according to the provisions of laws, administrative regulations or the agreement of the parties. If the parties do not adopt the written form, but one party has fulfilled its main obligations and the other party accepts it, the contract is established.

However, it should be noted that if the contract should be in written form is not in written form, there will be a heavy burden of proof in practice. The party who advocates the establishment of the contract should prove that he has fulfilled his obligations and the other party has accepted it, which increases the risk of disputes over whether the contract is established and what kind of contract is established. Therefore, we should understand and grasp the contracts that are clearly stipulated by law and should be concluded in written form.

The following is the contract and basis that should be concluded in written form in the field of intellectual property after the implementation of the Civil Code:

1. Transfer contract of copyright

Copyright law of the people's Republic of China (revised for the third time on November 11, 2020)

Article 27 a written contract shall be concluded for the assignment of the rights specified in items 5 to 17 of the first paragraph of Article 10 of this law.

The contract for transfer of rights includes the following main contents:

（1） The name of the work;

（2） The types and geographical scope of the transferred rights;

（3） Transfer price;

（4） The date and manner of delivery of the transfer price;

（5） Liability for breach of contract;

（6） Other contents to be agreed by both parties.

2. Application right and patent right transfer contract

Patent Law of the people's Republic of China (the fourth amendment on October 17, 2020)

Article 10 the right to apply for a patent and the patent right may be transferred.

Where a Chinese entity or individual transfers the right of patent application or patent right to a foreigner, foreign enterprise or other foreign organization, it shall go through the formalities in accordance with the provisions of relevant laws and administrative regulations.

Where the right to apply for a patent or the patent right is transferred, the parties concerned shall conclude a written contract and register it with the administrative department for patent under the State Council, which shall make an announcement. The transfer of the right to apply for a patent or the patent right shall take effect from the date of registration.

3. Development contract, technology transfer contract and technology license contract

Civil code of the people's Republic of China (effective on January 1, 2021)

Article 851 a technology development contract is a contract concluded between the parties for the research and development of new technologies, new products, new processes, new varieties or new materials and their systems.

Technology development contract includes commission development contract and cooperation development contract.

A technology development contract shall be in written form.

Civil code of the people's Republic of China (effective on January 1, 2021)

Article 863 a technology transfer contract includes a contract for the transfer of patent right, patent application right and technical secret.

Technology license contract includes patent license, technology secret license and so on.

Technology transfer contracts and technology license contracts shall be in written form.

[warm tips] source: Judicial Case Research Institute of the Supreme People's court. The copyright belongs to the original author. If there is something wrong, please contact to inform us of modification or deletion. Thank you.