1. According to the law, what is a service invention patent?
The patent for service invention is a service invention completed by the staff of enterprises, institutions, social organizations, state organs and other units. They perform their own tasks or mainly use their own material conditions. In the patent law, this relationship is reflected in the attribution of inventions completed by employees, that is, whether the inventions completed by employees are job inventions or non-job inventions. In principle, the solution to this problem should follow the principle of "contract is superior to law", that is, the ownership of the right of invention and creation should be solved first in accordance with the agreement in the labor contract.
Second, the angle of proof of service invention infringement
(A) the perspective of employee relations
The labor contract signed by R&D personnel and the original employer can not only prove the existence of labor relationship between R&D personnel and the original employer, but also if the work content of R&D personnel is clearly stipulated in the labor contract, the R&D achievements related to the work content will be locked by the employer to a certain extent. Secondly, the formal project task book signed by R&D personnel and the original employer.
Article 12 of the Detailed Rules for the Implementation of the Patent Law stipulates that inventions and creations made by actors in their own works; Inventions and creations made within 1 year after retirement, transfer from the original unit or termination of labor and personnel relations related to my work undertaken in the original unit or tasks assigned by the original unit. All belong to the category of service invention.
(2) Comparison of business scope
If the business scope of the last unit of R&D personnel is the same as or similar to that of the employer applying for a patent, it will be easy to guide the court to conduct further court investigation, and the subsequent evidence collection will be more convenient.
(3) Relevant business contracts and documents
Commercial contracts and invoices related to R&D projects can sometimes prove that the materials and technical conditions of the original employer were used in R&D projects. For example, the completion of a patented technology requires the purchase of corresponding R&D equipment and reagents. The actor's original employer has corresponding equipment purchase contract, R&D related reagent purchase agreement, supplier invoice, etc. During this period, it is very likely to provide material and technical conditions for the research and development of disputed patents.
(4) Relevant drawings
The relevant drawings provided by the original employer are related to the contents of the disputed patent, and the time point, purchased equipment and various test items confirm each other, which can point the evidence to the service invention.
Third, the criterion of service invention.
Generally speaking, there are some opinions.
1, divided by the business scope of the unit. In other words, all related inventions within the business scope of this unit are regarded as service inventions. From the point of view of the unit, the purpose of hiring employees is to develop business, and employees have the obligation to work hard for the business development of the unit. Therefore, all inventions and creations completed by employees within the business scope of the unit belong to the performance of their duties.
2, whether the completion of the invention has made use of the material and technical conditions of the unit as the standard for dividing service inventions and non-service inventions.
3. Whether the time to complete the invention and creation belongs to spare time is regarded as the standard to divide the service invention and creation from the non-service invention and creation.
4, whether the unit is established as a standard for dividing service inventions and non-service inventions.
5, according to the post responsibility system and the scope agreed in the employment contract as the division standard.
To sum up, service invention is also a kind of invention. As soon as the service invention product comes out, it is necessary to negotiate the ownership of the work to avoid disputes in the future. Therefore, the employer and the laborer should negotiate well when dealing with it, but the remuneration that the laborer should get cannot be refused.