Invention is the result of intellectual labor. Invention is a factual act, not limited by the capacity for civil conduct. Therefore, no matter whether a person engaged in invention and creation has full capacity for civil conduct, as long as he has completed his own invention and creation, he should be recognized as an inventor or designer.
Inventors or designers include inventors or designers of non-service inventions and creations and inventors or designers of service inventions and creations. Non-service invention-creation refers to an invention-creation that is not completed by the unit, nor is it mainly accomplished by using the material and technical conditions provided by the unit. For non-service inventions, the right to apply for a patent belongs to the inventor or designer. No unit or individual may suppress an inventor or designer's application for a patent for non-service invention-creation. After the application is approved, the inventor or designer shall be the patentee. Where a non-service invention-creation is jointly completed by two or more inventors and designers, the person who completed the invention-creation is called a * * * co-inventor or a * * * co-designer. * * * The right to apply for a patent for an invention-creation and the patent right obtained shall be owned by * * *. For service invention-creation, the subject of patent right is the unit where the inventor or designer of the invention-creation belongs. The invention-creation by taking advantage of one's position refers to the invention-creation accomplished by performing the tasks of one's own unit or mainly using the material and technical conditions of one's own unit. The "units" mentioned here include domestic enterprises of various ownership types and properties, Sino-foreign joint ventures, Sino-foreign cooperative enterprises and wholly foreign-owned enterprises; In terms of labor relations, it includes both fixed work units and temporary work units.
Service inventions are divided into two categories:
1. Inventions and creations completed by executing the tasks of this unit. Including three situations: (1) made in the course of their own work.
Invention and creation; (2) Inventions and creations made by completing tasks other than one's own work entrusted by the unit; (3) Inventions and creations made within 1 year after resignation, retirement or job transfer, which are related to the work undertaken by myself in the original unit or the tasks assigned by the original unit. In the third case, a service invention-creation can only be constituted if two conditions are met at the same time: first, the invention-creation must be made within 1 year after the inventor or designer resigns from the original unit or transfers his job; Two, the invention is related to the work undertaken by the inventor or designer in the original unit or the task assigned by the original unit. 2. Inventions and creations mainly make use of the material and technical conditions of the unit. "The material and technical conditions of the unit" refers to the funds, equipment, spare parts, raw materials or technical data that are not disclosed to the public. It is generally believed that if all or most of the company's funds, equipment, spare parts, raw materials and undisclosed technical data are used in the process of invention and creation, this utilization plays an indispensable and decisive role in the completion of invention and creation, which can be considered as mainly utilizing the company's material and technical conditions. If only a small amount of material and technical conditions of the unit are used, and the use of such material conditions has nothing to do with the completion of the invention, it cannot be regarded as a service invention. Where an invention-creation is made using the material and technical conditions of the entity, 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.
The right to apply for a patent for a service invention-creation and the patent right obtained belong to the unit where the inventor or designer works. The inventor or designer enjoys the right of authorship and the right to receive bonuses and remuneration, that is, the inventor or designer has the right to declare himself as an inventor or designer in the patent application documents and related patent documents; The entity that has been granted the patent right shall, in accordance with the provisions, give a bonus to the inventor or designer of the service invention-creation; After the patent for invention-creation is implemented, the entity shall give the inventor or designer reasonable remuneration according to the scope of its popularization and application and the economic benefits obtained. The right of authorship of an inventor or designer may be waived by a written statement. The transferee refers to the unit or individual that obtains the patent right according to law through contract or inheritance. The right to apply for a patent and the patent right can be transferred. After the transfer of the patent application right, if the patent is obtained, then the assignee is the subject of the patent right; After the transfer of the patent right, the assignee becomes the new subject of the patent right.
Where two or more units or individuals cooperate to complete an invention-creation, or one unit or individual accepts the entrustment of another unit or individual to complete an invention-creation, and both parties agree that the application for patent right for invention-creation belongs to the entrusting party, according to their agreement, after the application is approved, the unit or individual applying for the patent right shall be the patentee. If there is no agreement between units or individuals, which constitutes entrusted development, the patent application and the patent right obtained shall belong to the trustee, but the trustee may exploit the patented technology free of charge.
The assignee shall not become an inventor or designer after obtaining the patent application right or patent right, and the inventor or designer of the invention-creation shall not lose his specific personal rights because of the transfer of the patent application right or patent right.
From the perspective of patent utilization right, the assignee also protects the assignee of patent utilization right, that is, the legal person or individual who obtains the patent utilization right through contract, including exclusive licensor, exclusive licensor and general licensor. Invention refers to a new technical scheme proposed for a product, method or its improvement. An invention must be a technical scheme, the result of the inventor's application and combination of natural laws in a specific technical field, not the natural laws themselves, so scientific discovery does not belong to the category of invention. At the same time, inventions are usually intellectual achievements in the natural sciences, and achievements in the fields of literature, art and social sciences cannot constitute inventions in the sense of patent law.
According to the provisions of the patent examination system, inventions can be divided into product inventions and method inventions, which can be original inventions or improved inventions. Product invention is about the invention of new products or new substances. This kind of product or substance has never been seen in nature, and it is the result of people using natural laws to act on specific things. If an article is completely in a natural state and exists without anyone's processing or transformation, it is not a product invention as stipulated in China's patent law and cannot obtain a patent right. Method invention refers to the invention of methods and steps to solve specific technical problems. Patentable methods usually include manufacturing methods and operating methods. The former includes product manufacturing technology and processing methods, while the latter includes testing methods and product use methods. An improved invention is a technical scheme with substantial innovation on the existing product invention or method invention. For example, Edison invented the incandescent lamp, which is an unprecedented new product and can apply for product invention; The method of producing incandescent lamps can apply for a method patent; Incandescent lamps are filled with inert gas, and their quality and service life are obviously improved. This is an improvement on the original basis and can be applied to improvement and invention. Utility model refers to a new technical scheme suitable for practical use for the shape, structure or combination of products. The utility model patent only protects the product. Products should be manufactured by industrial methods and occupy a certain space. All related methods (including the use of products) and natural objects that have not been artificially manufactured are not protected by utility model patents. The above methods include manufacturing methods, using methods, communication methods, processing methods, computer programs and using products for specific purposes. For example, the manufacturing method of a gear, the dust removal method in the workshop, the data processing method, the naturally occurring rain flower stone and so on. Can't be protected by utility model patent.
Product concept
The shape of a product refers to the definite spatial shape that the product has and can be observed from the outside. The technical scheme proposed for product shape can be the technical scheme proposed for product three-dimensional shape, such as the improvement of cam shape and cutter shape; It can also be a technical scheme of two-dimensional shape of products, such as the improvement of sectional shape of profiles. Gaseous, liquid, powdery, granular substances or materials, which have no definite shape, cannot be used as the shape characteristics of utility model products.
Patent description
The structure of a product refers to the arrangement, organization and interrelation of various components of the product. It can be a mechanical structure or a circuit structure. Mechanical structure refers to the relative position relationship, connection relationship and necessary mechanical cooperation relationship between the parts that make up the product; Circuit structure refers to the determined connection relationship between components that make up a product. Appearance design, also known as industrial product appearance design, refers to a new design with aesthetic feeling and suitable for industrial application based on the shape, pattern or their combination of products and the combination of color, shape and pattern.
The carrier of design must be the product. Product refers to any article produced by industrial methods. Handicrafts, agricultural products, livestock products and natural objects that cannot be produced repeatedly cannot be used as the carrier of design. Usually, the color of a product can't form a design independently unless the color change of the product itself has formed a pattern. The combinations that can constitute the design are: the shape of the product; The style of the product; The shape and pattern of the product; The shape and color of the product; Patterns and colors of products; The shape, pattern and color of the product.
Shape refers to the design of product modeling, that is, the appearance outline presented by the movement, change and combination of points, lines and surfaces outside the product, that is, the result of designing and manufacturing the product structure and appearance at the same time; Pattern refers to the pattern formed on the product surface by any arrangement or combination of lines, characters, symbols and color blocks. Patterns can be made by drawing or other ways that can reflect the designer's pattern design ideas. The pattern of the product should be fixed and visible, and should not be accidental and visible under specific conditions; Color refers to the color or color combination used in the product, and the natural color of the material used to manufacture the product is not the design color.