The provisions of China's patent law on the attribution of service inventions: the patent law divides inventions into two categories: service inventions and non-service inventions. The right to apply for a patent for a service invention-creation belongs to the unit; The right to apply for a patent for a non-service invention-creation belongs to individuals. After the application is approved, the entity or individual 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. According to the Patent Law, if the patent application is rejected after substantive examination, the patent administrative department of the State Council shall make a decision to grant the patent right and issue a patent certificate. 199265438+Feb. 3 1 The protection period of the invention patent right applied before is fifteen years from the date of application, and the protection period of the utility model and design patent right is five years from the date of application. Before the expiration, the patentee may apply for an extension of three years. 1993 1 The protection period of the patent right for inventions applied since then is 20 years from the date of application, and the protection period of the patent right for utility models and designs is 10 year from the date of application.
Legal objectivity:
Article 6 of China's Patent Law stipulates: "An invention-creation completed by performing the tasks of the entity or mainly using the material and technical conditions of the entity 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 unit becomes 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. If the invention-creation completed by using the material and technical conditions of the unit has a contract agreement with the inventor or designer, and there is an agreement on the right to apply for a patent and the ownership of the patent right, such agreement shall prevail. " This article clarifies that the right to apply for a patent for a non-service invention-creation belongs to the inventor or designer himself, and the right to apply for a patent for a service invention-creation belongs to the unit. Where a unit has an agreement with the inventor or designer on the service invention completed by using the material and technical conditions of the unit, such agreement shall prevail. Therefore, to clarify the ownership of patent application right and patent right, we must first clarify whether the invention belongs to service invention. As can be seen from Article 6 of the Patent Law, there are mainly two kinds of service inventions: one refers to the inventions and creations completed by inventors and designers in the execution of their own tasks. According to the relevant provisions of Article 1 1 of the Detailed Rules for the Implementation of the Patent Law, the so-called "carrying out the tasks of one's own unit" refers to three situations: one is the invention and creation completed in one's own work; Second, the invention and creation made by the task other than the job entrusted by the executive unit; Third, inventions made within 1 year after resignation, retirement or job transfer, which are related to my work undertaken in the original unit or tasks assigned by the original unit. The other category refers to inventions made mainly by using the material and technical conditions of the unit. According to the relevant provisions of Article 1 1 of the Detailed Rules for the Implementation of the Patent Law, the so-called "mainly utilizing the material and technical conditions of the unit" refers to utilizing the funds, equipment, spare parts, raw materials or technical materials of the unit that have not been disclosed to the public. What needs to be explained here is that the invention and creation completed by the inventor or designer himself does not carry out the task of the unit. If it is mainly realized by using the material and technical conditions of the unit, it is also a service invention, that is to say, the material and technical conditions of the unit should be indispensable for completing the invention and creation. For a small amount of use or use that does not substantially help the completion of the invention and creation, it can be ignored. However, if the unit and the inventor or designer agree in the form of a contract that the invention is a service invention, then the invention is a service invention.