Service inventions are inventions and creations made by the inventor to complete the tasks assigned by the company or by utilizing the material and technical conditions of the company.
The right to apply for a patent belongs to the company. Inventors enjoy authorship rights and the right to receive rewards from the company.
Service inventions play an increasingly important role in technological innovation.
Technological innovation has two basic elements, human creativity and capital investment. Among them, human creativity plays a decisive role. As technological competition intensifies, the depth of research and development increases, and the scale of research and development investment becomes larger and larger, requiring organized research and development to be completed. Therefore, service inventions play an increasingly important role in technological innovation.
In my country’s patent applications and authorizations, the innovation level of service patents is higher than that of non-service inventions, but the number of service patents is small. From 1985 to 2002, among domestic patent applications and authorizations, invention patents accounted for 22% of service patent applications, and invention patents accounted for only 14% of non-service patent applications. However, service patent applications only accounted for 1/3 of the total number of patent applications, and the rest were Personal non-service inventions. During the same period, service invention patents accounted for 95% of foreign patent applications. These phenomena reflect the need for us to learn from international experience, improve employee invention ownership policies, and improve national technological innovation capabilities and levels.
International experience: highlighting the role of employee inventors
To summarize the relevant laws of some countries and regions, the employee invention ownership policies have the following rules.
——There are two main ways to divide the scope of application of service inventions. One is based on the division of job responsibilities. Inventions completed by employees in the normal work specified in the employment contract or entrusted by the employer are service inventions. The other is based on the use of resources. In addition to the normal work agreed upon by the employee or the inventions completed by the employer, inventions that make use of the employer's experience, labor and facilities are also service inventions. The former division method is based on the responsibilities and tasks stipulated in the contract, and the boundaries are relatively clear. The second type of division has a relatively wide scope. If not mastered well, it may limit the space for employees to flexibly create.
—There are two broad categories of service invention patent rights. First, the principle of “employer priority” is adopted. Service invention patents belong to the employer, and service inventors have the right to share the remuneration of intellectual property rights. For example, French patent law stipulates that employees shall be remunerated accordingly under employment and commission contracts. The second is to adopt the principle of "inventor priority". The original power of a service invention patent belongs to the service inventor, and the employer enjoys the right to implement the patent. For example, Japan and Germany adopt this principle. Japanese Patent Law stipulates that the original right of a service invention patent belongs to the inventor, and the employer automatically enjoys the non-exclusive right to implement it; when an employee transfers the rights to a service invention patent to the employer, the inventor is entitled to reasonable remuneration from the employer.
——Balance the interests of employers and inventors, and highlight the status and role of service inventors. Regardless of priority given to employers or inventors, the patent laws of many countries and regions highlight the status of inventors in terms of patent application qualifications and clearly stipulate that patent applicants must be the inventor or his assignee (including legal persons). With this provision, employers must respect service inventors, who are also responsible for the innovativeness of their research results. For example, the United States implements the employer priority principle for service inventions, but its patent law stipulates that the patent applicant should be the inventor. When a non-inventor applies for a patent, he must hold the inventor's application assignment letter.
——Standardize the incentive mechanism for employee inventors funded by state-owned institutions and governments. Usually, the patent laws of various countries stipulate the basic principles of remuneration for service inventors, but do not stipulate the specific proportion or amount of remuneration. The actual remuneration is determined by the contract between the employee and the employer. Since government financial expenditures are public resources, many countries and regions have passed some special laws or administrative regulations to stipulate the proportion of employee inventor remuneration in government-affiliated institutions and government-funded institutions. The Federal Technology Transfer Act of the United States clearly stipulates the lower limit on the proportion of employee inventor commissions in the income from transferred federal technology.
The main problem in my country: Emphasis on employers over inventors
Compared with the international situation, the main problem of my country’s employment invention ownership policy is that emphasis on employers over inventors.
——Not enough attention is paid to the status and role of service inventors. Our country's service inventions adopt the principle of employer priority, and the patent law stipulates that the right to apply for service invention patents belongs to the employer. As a result, on the one hand, the employer directly controls the right to apply for patents for employee inventions, ignoring the rights and roles of employees; on the other hand, because the employee inventors do not have the right to apply, they do not have to be responsible for the innovativeness of the results.
——The incentive mechanism for job inventors is not in place. Although the Patent Law stipulates that service inventors have the right to distribute patent income, the "Several Provisions on Promoting the Transformation of Scientific and Technological Achievements" by the Ministry of Science and Technology and other departments also propose that the completers of professional scientific and technological achievements and other persons who have made important contributions to the transformation of achievements must be punished in accordance with the law. Staff are rewarded. However, due to the lack of specific operating methods, during implementation, enterprises and institutions often emphasize that service inventions belong to the unit, and lack the appropriate incentive mechanism for service inventors. In particular, the distribution system of state-owned enterprises and institutions is egalitarian. Most job inventors find it difficult to get their due remuneration, and employees are not highly motivated to innovate.
——The scope of service inventions is too broad, limiting researchers’ space for flexible creation. my country's patent law stipulates that service inventions refer to service inventions and creations completed by utilizing the material conditions of the unit. Including inventions and creations made in the course of one's own work; inventions and creations made in the performance of tasks other than one's own work assigned by the unit; inventions and creations made within one year after resignation, retirement or transfer of work that are different from the original work or work undertaken by the original unit. The original unit assigned tasks related to inventions and creations. The definition of service invention in my country is close to that in Germany, but the original right of a service invention patent in Germany belongs to the inventor, and the employer has the right to implement it. In our country, not only are service invention patents owned by employers, but the scope of service inventions is too broadly defined, limiting the initiative and flexibility of scientific and technological personnel.
——The intellectual property management system is not perfect. Since most scientific research institutions and universities, as well as national science and technology plans, have not established a standardized intellectual property management system, when it comes to the ownership of service inventions, on the one hand, the emphasis on institutional interests and the neglect of inventors' interests have inhibited the enthusiasm of scientific researchers to transform their achievements. On the other hand, due to poor management, there is a phenomenon that inventors convert service inventions into non-service inventions through various channels, and some public resources are converted into personal achievements. Some suggestions: Pay attention to the role of employee inventors
Establishing an incentive mechanism where scientific and technological personnel can freely display their talents is an important goal of the employee invention ownership policy. Due to the immaturity of my country's capital market and technology market, subsequent research and development and market development of individual patents are relatively difficult, and the degree of industrialization is low. Therefore, the ownership of employee inventions should be based on the principle of employer priority, but the role of employee inventors should be valued and the protection and incentives for inventors should be increased. The incentive mechanism for service inventors is not a simple issue of income distribution. It should be understood from the perspective of enhancing the country's innovation capabilities, and necessary legal and institutional protections should be provided.
The first is to clarify the patent application rights of service inventors. Highlight the role of inventors in patent application rights, enhance employers' awareness of respecting job inventors, and improve inventors' sense of responsibility for innovation.
The second is to appropriately narrow the scope of service inventions. The scope of application of service inventions is mainly determined based on job contracts and entrustment contracts, leaving more room for employees to create freely. At the same time, in order to protect the interests of the employer, the employer can be allowed to have priority in implementing employees' non-service invention patents.
The third is to standardize the compensation and reward system for job inventors in public institutions and implement an incentive mechanism for inventors. Formulate special supplementary regulations to detail the compensation and income distribution methods for service inventors in state-owned and government-funded research institutions. State-owned enterprises and institutions must get rid of the concept of egalitarianism and establish an incentive mechanism for job inventors. Private enterprises mainly rely on market competition mechanisms to determine incentives for service inventors.