尽管世界上许多国家,包括中国在公司立法中都肯定了专利权可以作为公司设立时的一种出资形式,但是却都没有针对专利权的特殊性作出可资操作的规定。由于公司法在股份结构方面的规定只是指导性的,一个公司在设立时所采取的股份认购和分派方式完全由发起人来选择,面对专利权这样一种新的资本形式,由于其价值的不确定性和使用专利技术的风险性,使得企图以其专利权作价入股的专利权人和其它以货币资本作为股权对价的股东在股份比例的分配乃至利润的分配问题上不可避免地存在着矛盾,由于公司的资本构成实 Although many countries in the world, including China, have affirmed in the company’s legislation that patent rights can be used as a form of investment for the establishment of a company, none of them has made any operational provisions governing the particularity of patent rights. Since the provisions of the company law on the share structure are merely guiding measures, the way of subscription and distribution of shares taken by a company when it is established is entirely determined by the sponsors. In the face of the new capital form of patent rights, due to its value Uncertainty and the risk of the use of patented technology make it inevitable that the patentee attempting to make a share purchase at the price of his patent and other shareholders who use the monetary capital as the equity consideration will inevitably have the problem of the distribution of the shares and the distribution of profits , Due to the fact that the company’s capital constitutes reality