A, * * * and how to divide the ownership of the patent right of invention and creation?
(a), two or more units or individuals to complete the invention, can be the cooperation between units (such as scientific research institutions, universities and enterprises), can also be the cooperation between units and individuals, can also be the cooperation between individuals.
The mode of cooperation can be that each partner undertakes different parts or stages of an invention according to the division of labor, or that one or more parties are responsible for providing material conditions such as funds, equipment and venues, and the other party or parties are responsible for technology development activities. For the invention-creation completed by cooperation, the parties to the cooperation may agree on the right to apply for a patent, the ownership of the patent right after the application is approved, and other rights and obligations of the parties to the cooperation. If the parties to the cooperation fail to reach an agreement on the ownership of the patent application right and patent right for the invention-creation completed by cooperation, according to the provisions of this article, the patent application right and patent right obtained shall be owned by the party or parties that have completed or jointly completed the invention-creation. Where all parties to the invention-creation cooperation jointly participate in the completion, the right to apply for a patent and the patent right obtained shall be owned by all parties to the cooperation.
In this regard, the Civil Code (implemented from 20211) stipulates that,
Article 860 The right to apply for a patent for an invention-creation completed through cooperative development belongs to the parties involved in the cooperative development. If one party transfers its patent application right, under the same conditions, the other parties have the priority to be assigned. However, unless otherwise agreed by the parties.
If one party to a cooperative development waives its right to apply for a patent, it may apply separately by the other party or jointly by other parties, unless otherwise agreed by the parties. If the applicant obtains a patent right, the party who gives up the right to apply for a patent may exploit the patent free of charge.
If one party to the cooperative development does not agree to apply for a patent, the other party or other parties shall not apply for a patent.
For the invention-creation jointly completed by all parties in the cooperation, each party shall file a patent application as the applicant (of course, in practice, one party may be selected as the representative of the other party to handle related patent affairs), and one or more parties may not file a patent application without the consent of the other party. In this regard, the above provisions of the contract law stipulate: "If one party to the cooperative development does not agree to apply for a patent, the other party or other parties may not apply for a patent."
(2) the right to apply for a patent for the invention-creation entrusted by a unit or individual to another unit or individual and the ownership of the patent right after the application is approved.
According to the general principles of civil law, in the entrustment contract relationship, the trustee handles the entrusted affairs according to the entrustment of the entrusting party, and the risk of handling the entrusted affairs is borne by the entrusting party; At the same time, the results of handling the entrusted firm should also belong to the client. The trustor shall pay the fees and remuneration to the trustee in accordance with the agreement. Therefore, the laws of many countries stipulate that the invention-creation, the right to apply for a patent and the patent right obtained by entrustment belong to the entrusting party. In order to protect the interests of the party who actually completed the invention-creation, China's patent law stipulates that unless otherwise agreed by the parties, the right to apply for a patent and the patent right obtained belong to the party who completed the invention-creation, that is, the trustee. Of course, the right and patent right of the entrusting party and the entrusted party to apply for a patent according to the agreement are owned by the entrusting party or both parties, depending on the agreement.
In this regard, China's Civil Code stipulates that,
Article 859 Except as otherwise provided by law or agreed by the parties, the right to apply for a patent for an invention-creation commissioned for development belongs to the research developer. If the research developer obtains a patent right, the client may exploit the patent according to law.
Where the research developer assigns the right to apply for a patent, under the same conditions, the trustor shall have the priority to be assigned.
To sum up, a * * * invention is generally a work jointly invented by two or more people or two or more units. As for the ownership of its patent right, it needs to be determined by both parties before the invention to avoid any disputes afterwards. Therefore, it must be handled in accordance with the terms, so that the interests of both parties will be protected.
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