Unless otherwise agreed, the right to apply for a patent belongs to the invention-creation completed in cooperation with two or more units or individuals, or the invention-creation entrusted by other units or individuals; After the application is approved, the applicant unit or individual shall be the patentee.
Explain that this article is about the right to apply for a patent for a cooperatively completed invention-creation and a commissioned invention-creation and the ownership of the patent right.
1. Inventions and creations completed by two or more units or individuals can be cooperation between units (such as cooperation between scientific research institutions, universities and enterprises), cooperation between units and individuals, and 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, Article 340th of People's Republic of China (PRC) Contract Law stipulates: "Unless otherwise agreed by the parties, the right to apply for a patent belongs to the parties involved in cooperative development. If one of the parties transfers its patent application right, under the same conditions, the other parties have the priority to transfer it. " "If one party to the cooperative development waives its right to apply for a patent, it may apply separately by the other party or jointly by other parties. If the applicant obtains a patent right, the party who gives up the right to apply for a patent can exploit the patent for free. " 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. Entities or individuals entrust other entities or individuals to complete the invention-creation, the right to apply for a patent 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, Article 339 of China's Contract Law also stipulates: "Unless otherwise agreed by the parties, the right to apply for a patent belongs to the research and development person. If the research developer obtains a patent right, the client may exploit the patent for free. " Where the research developer transfers the right to apply for a patent, the client shall enjoy priority under the same conditions.