An invention-creation made by carrying out the tasks of the unit or mainly using the material and technical conditions of the unit is a service invention-creation. The right to apply for a patent for a service invention-creation belongs to the unit; After the application is approved, the entity shall be the patentee.
The right to apply for a patent for a non-service invention-creation belongs to the inventor or designer; After the application is approved, the inventor or designer shall be the patentee.
Where an invention-creation completed by making use of the material and technical conditions of the entity has a contract with the inventor or designer to stipulate the right to apply for a patent and the ownership of the patent, such agreement shall prevail.
Explain that this article is about the right to apply for a patent for service invention-creation and non-service invention-creation and the ownership of their patent rights.
1. The "units" mentioned in this article include state organs, organizations, armed forces, enterprises, institutions and private non-enterprise units. The inventors and designers mentioned in this paper refer to those who have made creative contributions to the essential features of invention and creation, that is, those who have completed the invention of products and methods or the technical scheme of utility models and designs through their own intellectual labor. In the process of completing the invention and creation, those who are only responsible for the organization and management, those who provide convenience for the use of material conditions, and those who engage in other auxiliary work, such as computer entry personnel, experimenters, sketchers, etc. , should not be regarded as an inventor or designer. It should also be pointed out that legal persons or other organizations can be the subject of patent application rights and patent rights, but they cannot be inventors or designers. Inventors and designers can only be natural persons who complete inventions through their own wisdom and talents.
Two, in accordance with the provisions of the first paragraph of this article, an invention-creation that falls under one of the following two circumstances is a service invention-creation, and the right to apply for a patent belongs to the unit where the inventor or designer works; After the application is approved, the unit is the patentee:
1. Inventions and creations completed by executing the tasks of this unit. For example, the inventions made by researchers in scientific research institutions after completing the scientific research tasks assigned by their own units; New product design or new process method completed by enterprise engineers and technicians within their own scope of work. According to the detailed rules for the implementation of the Patent Law, an invention-creation completed by an inventor or designer belongs to one of the following situations: (1) an invention-creation completed in the course of his own work; (2) Inventions and creations completed by completing tasks other than their own work assigned by their own units; (3) Inventions and creations related to one's own work or tasks assigned by the original unit made within one year after resignation, retirement or transfer.
2. Inventions and creations mainly make use of the material and technical conditions of the unit. The material conditions of the unit mentioned here include the use of funds, instruments, equipment and raw materials. ; Technical status, including undisclosed technical data of the unit, etc. Inventors and designers mainly use the material and technical conditions of their own units to complete their inventions. Although it does not belong to the task performed by this unit, it should also be regarded as a service invention creation, and the right to apply for a patent and the patent right belong to this unit. However, unless otherwise stipulated in the third paragraph of this article. According to the laws of many countries, the right to apply for a patent and the patent right are owned by the employer for the service inventions and creations made by employees of companies and enterprises in the course of performing their duties or in the work specially assigned to them by the employer. The provisions of China's patent law on the ownership of service invention-creation patents are basically the same as those of other countries. As for the interest relationship between the unit and the inventor and designer of the service invention, it belongs to the internal relationship of the unit and should be properly handled by the unit.
3. Except for the service invention-creation specified in the first paragraph of this article, the invention-creation completed by the inventor or designer belongs to the non-service invention-creation, and the right to apply for a patent and the patent right after the application is approved belong to the inventor or designer.
Four, in accordance with the provisions of the first paragraph of this article, mainly using the material and technical conditions of the unit to complete the invention-creation, in principle, belongs to the service invention-creation, the right to apply for a patent and the patent right after the application is approved. However, if an inventor or designer who has made use of the material and technical conditions of his own unit has entered into a contract with his own unit to stipulate the ownership of the right to apply for a patent and the patent right, for example, the unit and the inventor or designer agreed in the contract that the inventor or designer should pay the fee for the use of the material and technical conditions to his own unit, but the right to apply for a patent and the patent right belong to the inventor or designer, or both parties agreed in the contract that the right to apply for a patent and the patent right belong to both parties, this provision will be added when the Patent Law is amended. This provision is conducive to encouraging the enthusiasm of individuals for invention and creation, giving full play to the material and technical conditions of the unit and avoiding idleness.
5. Before this revision, the Patent Law stipulated that the patent right for service invention-creation obtained by a unit owned by the whole people shall be held by that unit; The patent right for service invention-creation obtained by a unit that is not owned by the whole people shall be owned by the unit. According to the Decision on Several Issues Concerning the Establishment of the Socialist Market Economic System of the Third Plenary Session of the 14th CPC Central Committee and the Decision on Several Major Issues Concerning the Reform and Development of State-owned Enterprises of the Fourth Plenary Session of the 15th CPC Central Committee, the ownership of state-owned enterprises is separated from the property rights of enterprise legal persons. State-owned enterprises operate independently in accordance with the law with all their corporate property, are responsible for their own profits and losses, pay taxes according to regulations, bear the responsibility of maintaining and increasing the value of assets to investors, and bear civil liability independently. Therefore, it is not necessary to stipulate that state-owned units are only the "holders" of their patents and other units are the "owners" of their patents according to different ownership systems, but only need to clarify who is the "patentee". Therefore, the revised provisions stipulate that the patent right obtained by a unit for service invention creation is no longer divided into the "holder" or "owner" of the patent right because of the different nature of the ownership of the unit, but is called the "patentee".
In view of your above situation, I personally think it is a non-service invention. I hope it will be helpful to you and I hope it will be adopted.