Legal subjectivity:
1. What rights does the client have over the inventions and creations developed on commission?
For inventions and creations developed on commission, unless otherwise provided by law, Unless the parties agree otherwise, the right to apply for a patent belongs to the researcher and developer. If a research developer obtains a patent right, the client may implement the patent in accordance with the law.
If a research developer transfers the right to apply for a patent, the client shall have the priority to receive the transfer under the same conditions.
2. Sharing principles in technology development contracts
1. For inventions and creations completed through entrusted development, unless otherwise agreed in the contract, the right to apply for a patent belongs to the research and development party. If the research and development party obtains the patent right, the entrusting party can implement the patent free of charge. If the research and development party transfers the right to apply for a patent for its invention or creation, the entrusting party may have priority in receiving the right to apply for the patent.
2. For inventions and creations completed through cooperative development, unless otherwise agreed in the contract, the right to apply for a patent belongs to all parties involved in the cooperative development. If one party transfers its exclusive right to apply for a patent, the other party or other parties may have priority in transferring its exclusive right to apply for a patent. If one of the parties to the joint development declares to give up its exclusive right to apply for a patent, the other party may apply alone, or the other parties may apply jointly. After an invention is granted a patent, the party that gives up the right to apply for a patent can exploit the patent free of charge. Among the parties to the cooperative development, if one party does not agree to apply for a patent, the other party or other parties shall not apply for a patent.
3. The rights to use, transfer and benefit distribution of non-patented technological achievements completed through entrusted development or cooperative development shall be agreed upon by the parties in the contract. If there is no stipulation in the contract, all parties have the right to use and transfer it. However, the research and development party entrusting the development shall not transfer the research and development results to a third party before delivering the research and development results to the entrusting party.
3. Recognition conditions for technology development contracts
According to the "Technology Contract Recognition Rules" implemented in 2001, the conditions for recognition of technology development contracts are:
1. Have clear and specific scientific research and technological development goals;
2. The subject of the contract is a technical solution that the parties have not mastered when entering into the contract;
3. Research and development The work and its expected results have corresponding technological innovation content.
Determination of not being a technology development contract:
The "Technology Contract Determination Rules" also specifically stipulates that the following contracts are not technology development contracts:
1. Contract The subject matter is the technical solution that the parties have mastered, including products, processes, materials and systems that have completed industrial development;
2. The subject matter of the contract is simple changes in size. Parameters, arrangements, or product modifications, process changes, and material formula adjustments achieved through changes in similar technical means;
3. The subject matter of the contract is general inspection, testing, identification, imitation, and application.
According to legal provisions, it can be known that the client has the right to use the invention and creation entrusted to develop it. If the researcher and developer obtains the patent right, the client can implement the patent in accordance with the law. Legal objectivity:
The "Patent Law of the People's Republic of China" stipulates that "inventions and creations completed by cooperation between two or more units or individuals, inventions and creations completed by one unit or individual accepting the entrustment of other units or individuals" , Unless there is an agreement otherwise, the right to apply for a patent belongs to the unit or individual who completed it. "According to this legal provision, if there is no agreement or the agreement is unclear in the entrustment contract for the invention-creation completed by the entrustment, The right to apply for a patent belongs to the unit or individual who completed the patent; if both parties have a clear agreement in the entrustment contract, the ownership of the right to apply for a patent shall be performed in accordance with the agreement. To determine the ownership of the application right, it should be clear whether it is completed by an individual or by performing duties.
If the entrusted party is a legal person, and the person who completes the invention-creation is a staff member of the entrusted party, and the completed invention-creation uses the legal person's technical data and human and financial resources, then the invention-creation is an official act and the application for patent right is The rights should belong to the entrusted unit rather than the specific inventor and creator. However, the specific inventor and creator can receive bonuses and remuneration according to regulations, and can sign his or her name. If the entrusted party is an individual (including two or more people), the right to apply belongs to the individual. Under normal circumstances, when the entrusting party entrusts the entrusted party, the entrusting party will provide technical data, materials, funds, and remuneration, and the entrusted party will only invent and create within the scope of funds allowed based on the technical data and materials provided by the entrusting party. The rights and obligations are relatively complicated. For the right to apply for a patent for invention and creation, a written entrustment contract should be concluded in accordance with the provisions of the Contract Law of the People's Republic of China to clarify the rights and obligations of both parties and reduce the occurrence of patent disputes.