What circumstances does the achievement of service invention include?

(1) Information on service inventions and creations and confirmation of the provisions of Article 6 of China's current Patent Law that "inventions and creations that are performed by the entity or mainly by using the material and technical conditions of the entity are service inventions and creations." Therefore, the following situations belong to service invention-creation. 1. Inventions and creations made in carrying out the tasks of this unit. This situation can be divided into three situations: (1) Whether the inventions made in the course of their own work refer to the inventions made by employees of their own units who undertake their own tasks within their own work scope. Its judgment standard can refer to the work content or responsibility scope of the staff. (two) to complete the invention and creation other than the tasks assigned by the unit. The first situation is different from this one. The former is the invention and creation completed by the staff during their service; The latter refers to the short-term or temporary non-professional work undertaken by staff according to the arrangement of scientific research units, or the inventions and creations made by staff who are not engaged in scientific research design but are temporarily sent to engage in scientific research. (three) within one year of resignation, retirement or transfer, the invention and creation related to the job or the assignment undertaken by the original unit are completed. However, if the invention has nothing to do with the work or task undertaken by the original work unit, it will not be a service invention no matter when it is completed. 2, mainly using the material and technical conditions of the unit to complete the invention. This situation is different from the above 1. Although the inventor is not performing the duties or tasks of his own unit, he mainly uses the material and technical conditions of his own unit in the process of invention and creation, and cannot do without the material and technical help of his own unit. Without the material and technical help of the unit, it is impossible to complete the invention and creation. Among them, material and technical conditions refer to funds, equipment, spare parts, raw materials or technical data that are not disclosed to the public. The utilization of material and technical conditions is limited to "main". We believe that "mainly" should be understood as the completion of the invention and creation, mostly or mainly using the material and technical conditions of the unit. If it is only a small part or only the technical data of the unit is used as an auxiliary reference, or the utilization of this material condition does not play a decisive role in the completion of the invention, it should not be regarded as "main" utilization. 3, the use of the material and technical conditions of the invention, the unit has a contract with the inventor or designer, the right to apply for a patent and the patent right belongs to the unit. At the same time, it can also be agreed that the patent application right and patent right belong to the inventor, and the inventor pays the unit the cost of using the material and technical conditions. The significance of this situation lies in that it is not only conducive to giving full play to the advantages of the unit's material and technical conditions, but also respects the wishes of people who carry out creative work. To sum up, judging whether an invention is a service invention or a non-service invention can neither be simply divided by whether the invention is in working hours, nor can it be determined only by the job. This is determined by the characteristics of mental work. Mental labor is different from manual labor, not limited by time and place, and has certain continuity and creativity. It is unscientific to simply take working hours and working scope as the distinguishing standard. Therefore, to judge whether an invention is a service invention, we should focus on the characteristics of the service invention, and make a comprehensive judgment from the aspects of project source, invention conditions and process, and responsibility commitment. (2) There are usually two situations in the situation of job works and the confirmation of job works: first, citizens who create works only enjoy the right of signature, and other rights belong to job works enjoyed by the unit. This situation can be divided into two types: (1) engineering design, product design drawings and their descriptions, computer software, maps and other job works. , mainly created by using the material and technical conditions of the unit, and undertaken by the unit; (2) Work in the post where the copyright is enjoyed by the unit as stipulated by laws, administrative regulations or agreed in the contract. For example, according to article 14 of the Regulations on Software Protection, there are three kinds of software job works: (1) software developed by citizens during their employment at work; (2) The predicted results of citizens engaging in their own work activities (software) during their employment in the unit; (3) The employment of citizens in the unit is the natural result of their own work activities (software). Second, citizens who create works enjoy full copyright in job works. In addition to the above two cases, the job work belongs to the job work in which the citizen who created the work enjoys complete copyright. The copyright owner of a job work has the right to exercise the copyright of the job work, which is the general principle for the copyright owner to exercise his rights. However, when the copyright of a job work belongs to the citizen who created the work, the exercise of copyright by the copyright owner will be restricted to a certain extent: firstly, it will be restricted by the "priority right to use" of the unit. That is, when the obligee exercises or permits others to use his work, he should ask his own unit whether to use the work. Only when the unit gives up the right of priority can the obligee exercise or license others to use the copyright. Secondly, it is limited by time and usage. That is, within a certain period of time stipulated by law-two years, without the consent of the unit, the copyright owner may not permit a third person to use the work in the same way as the unit. The works created by the creators of post works are carried out as their own jobs or to complete the work tasks of their own units. If the works created by citizens do not belong to their own work or tasks, even if they belong to the business scope of the unit, they do not belong to job works. For example, a head nurse, whose job is to engage in nurses and their management, arranges and writes the "Head Nurse's Manual" after work. Although her job is related to the business of the hospital, it is not a post job. This is different from job invention and job technical achievements. Therefore, job works are mainly composed of two elements: first, there is a subordinate relationship between the author and the unit; Second, the work must be the result of completing the unit task. The so-called work task of the unit refers to the written or oral task assigned by employees or units to create works related to the work scope and business of the unit. Both are indispensable. There are also differences between professional works and legal works. A legal person's work refers to a work presided over by a legal person or entity without legal personality and created on behalf of the legal person or entity without legal personality, and the resulting responsibility is borne by the legal person or entity without legal personality and signed by the legal person. If an article is published in the journal of a university, the signature is: the office of the president of the university, and the work should be a legal person's work. If the signature is XXX of the president's office of a university, it should be determined according to the composition of the job, whether it belongs to the job or personal work. The spirit of the Supreme People's Court (1988) Minzi No.21Reply on Copyright of Speech Works Written and Published by Others in Their Personal Names is that the contents of the controversial works in this case basically reflect the will of the municipal government. The figures indicated in the article are provided by the Municipal Bureau of Statistics and stamped with the official seals of the municipal government and the Bureau of Statistics, and the article is also signed by the Linyi Municipal People's Government. Therefore, it is considered that the article is visible, and the Supreme People's Court mainly relies on it. Therefore, the identification of job works should also consider the materials and sources of the works, the will reflected by the works and the responsibilities of the works. (three) the situation of job-related technical achievements and the confirmation of job-related technical achievements relative to non-job technical achievements. Technological achievements include technological achievements that have not been patented and technological achievements that have not been approved for patent application. Compared with patented technology, technological achievements have their own characteristics: first, the scope of technological achievements is very wide, and it is not limited by any statutory provisions. No matter whether it is an invention in industrial production or a scientific discovery, it is not necessary to apply for registration. As long as the conditions of mature technology are met, almost all intellectual achievements can become technological achievements; Second, technological achievements are mainly protected by civil law, contract law and anti-unfair competition law, with a low degree of protection, focusing on stopping others from obtaining and using a technological achievement by unfair and illegal means; Third, there is no protection period for technological achievements. Theoretically, the right of technological achievements existed before it was made public, which is actually limited by the advanced nature of technology itself. Before the technological achievements are made public, some of them can become technical secrets. This part intersects with trade secrets; Fourth, technological achievements can be owned by multiple subjects at the same time, which is different from the exclusiveness of invention and creation. According to the provisions of the contract law, there are three kinds of job-related technical achievements: one is the technical achievements completed by executing the tasks of legal persons or other organizations; The second is the technological achievements made mainly by using the material and technical conditions of legal persons or other organizations. Carrying out the tasks of this unit includes: (1) On-the-job personnel undertake the scientific research and technology development projects of this unit (including the projects declared in the name of this unit) or perform their duties; (2) The retired and demobilized personnel continue to undertake the scientific research and technology development projects of the original unit or perform their original post responsibilities within one year after leaving the original unit. "Material and technical conditions" refers to the funds, equipment, equipment and undisclosed technical information and materials provided by the unit. The third is to use the material and technical conditions provided by the unit to return the technical achievements to the unit according to the prior agreement. However, the use of the material and technical conditions provided by the unit, in accordance with the prior agreement, the return of funds or the payment of royalties are not subject to this restriction. (4) There are usually two situations about the business secrets of the unit and the confirmation of the business secrets of the unit: one is the business secrets developed by the unit itself; Second, the business secrets acquired by the unit through public-private partnership, natural person investment, merger, transfer and other legal means. The specific contents include: first, technical information mainly based on non-patented technology. Patent-free technological achievements, patent-free technological achievements and patent-free technological achievements stipulated in the patent law are all among them. In addition, it should also include production technology, product formula, design drawings, models, practical operation skills, experience and test data, research reports, computer programs, etc. Second, business information. Refers to sales methods, customer lists, supply information, investment plans, advertising strategies, management experience, financial books, price lists, etc. Trade secrets have a wide range and various forms of expression. It is a combination of technical and non-technical intellectual achievements and a special intellectual property right. The characteristics of trade secrets are: first, they are not known to the public; Second, the obligee has taken necessary safety measures to protect it. The above two points are different from inventions, and inventions can only obtain exclusive rights under open conditions; The third is practicality, that is, it can be manufactured or applied to production, which has actual or potential economic value and can bring practical benefits to the obligee. The above characteristics of trade secrets are its basic characteristics, and also an important condition for judging whether a certain information can be a trade secret protected by law in judicial practice. To sum up, service invention is particularly important for our workers and employers. The results of this service invention will be handled according to different situations, but the final results generally belong to employers. Therefore, workers should handle it properly when negotiating with employers to avoid any major disputes.