1 Shortcomings of the current patent law on the system of service invention
1. 1 emphasizing "unit priority" from the legislative guiding ideology does not conform to the principle of fairness and equality in civil law, and is not conducive to the transformation of scientific and technological achievements and encouraging inventors to innovate.
There is a labor relationship between the inventor and his unit. On the basis of labor relations, the inventor carries out related inventions and creations according to the task arrangement of the unit. Inventions and creations are formed in the post, which embodies the will of the unit and is classified as post inventions and creations. Inventors will inevitably rely on the existing material and technical conditions of their own units when carrying out service invention creation activities, but it cannot be said that inventions created by using the material and technical conditions of their own units must be service inventions. At the same time, Article 6 unilaterally emphasizes the important role of external conditions in invention and creation activities, while ignoring the core role of talents in creation activities. Inventions and creations made by inventors using the material and technical conditions of their own units when they are not performing the tasks of their own units are based on their own thoughts and creativity, and reflect the will of the inventors rather than the will of the units. According to the current patent law, the right to apply for a patent for this invention often belongs to the unit, which directly obtains the labor results other than the inventor's work, which obviously violates the principle of fairness and greatly reduces the inventor's enthusiasm for innovation.
1.2 the definition of "main utilization" in the material and technical conditions of the unit is vague, and it is difficult to quantify the difficulty of proof, which often leads to unfavorable judgments for inventors or designers in judicial practice.
According to Article 6 of the Patent Law, inventions made mainly by using the company's material and technical conditions belong to service inventions, among which "major utilization" has always been controversial, and the definition of "major utilization" and "non-major utilization" has never been conclusive. In judicial practice, the judgment of "major utilization" and "non-major utilization" is often subjective, and the relevant evidence is difficult to prove, which leads to the improper expansion of the scope of "major utilization" to varying degrees. After excluding "invention-creation activities carried out in the execution of the tasks of the company" from the dispute over the ownership of service inventions, most local courts did not strictly distinguish between "major utilization" and "non-major utilization" as stipulated in the patent law, and only confirmed that the inventor used the material and technical conditions of the company in the creation process through the evidence submitted by both parties, so the invention involved was judged to be a service invention with a high probability.
2. Comparative analysis of judgment and attribution of service inventions in major countries.
Due to the great differences in political, economic, cultural development and legal systems in different countries, the development and evolution of intellectual property systems are also different, and the criteria for judging service inventions and the provisions on the ownership of rights in different countries are also different. This paper analyzes and studies the specific legislation of service invention system in several major countries.
2. 1 Beauty _
Article11of the U.S. Patent Law (35th U.S.C.) stipulates that a patent application shall be filed by the inventor in writing with the Director of the Patent and Trademark Office, unless otherwise stipulated in this part. According to this regulation, in the United States, whether it is a service invention or a non-service invention, only the inventor can file a patent application, and the original right holder of the invention patent is also the inventor. According to this agreement, the employer may enjoy the right to develop any such invention in the pre-agreed field or the priority to choose an exclusive license. At the same time, the American government encourages employees and employers to negotiate on the distribution of rights and interests of inventions and creations through agreed forms, and encourages researchers to make use of employers' equipment and resources for scientific research and inventions and creations.
2.2 Japan
The legislation on service invention in Japanese franchise law mainly focuses on Article 35. With regard to the judgment of service invention, the scope of Japanese is narrower than that of China, and it emphasizes that two aspects are indispensable, one is the business scope, and the other is the invention of performing present or past duties. Regarding the attribution of service inventions, the first paragraph of Article 35 of the Franchise Law stipulates that the right to apply for a patent and the patent right belong to the inventor, but the employer "has the usual right to exploit the patent right". This is consistent with the ownership of the original right of American service invention. At the same time, the third paragraph of Article 35 stipulates that the right to apply for a patent for service invention, the patent right and the exclusive right can be changed from employee agreement to employer, but the employer must pay a reasonable consideration for it. This is quite different from the current patent law in China. The application right and patent right of service invention in China belong to the employer in law, and there is no situation that the ownership of service invention can be transferred from employees to employers.
2.3 Britain
Article 39 of the British Patent Law (1) stipulates the scope of service invention. This is similar to the judgment standard of "invention-creation completed by executing the task of the unit" in China's patent law. This clause also stipulates that the right of service invention belongs to the employer, which is consistent with the provisions of China on the right to apply for a patent for service invention and the right of patent to belong to the unit. The principle of "unit priority" is also reflected in Britain's judgment and attribution of service inventions. Articles 40 and 4 1 of the British Patent Law also stipulate that employees have the right to receive reasonable remuneration for their service inventions. For non-service inventions, if the patent right is transferred to the employer by agreement, if the employee thinks that "compared with the benefits obtained by the employer from the patent, the benefits obtained are not enough", the employer shall give the employee extra remuneration.
2.4 Germany
Germany has established an invention declaration system on the ownership of service inventions. After completing a job invention, employees are obliged to declare the invention to their employers immediately with a special written notice. The employing unit may claim the right of service invention-creation after receiving the declaration report, or may give up the right of service invention-creation within 4 months from the date of receiving the report. The employing unit obtains all the rights of the service invention through the patent claim, and is obliged to apply for the protection of domestic industrial property rights for the service invention declared by it. Under the service invention declaration system, the original right of service invention belongs to employees. Through the invention declaration, the employer can declare the right of invention, or give up the right of invention to the laborer to become a "free invention".
3. Provisions of the Revised Draft of the Patent Law on amending the analysis of service inventions
First, the amendment of this article changes the principle of "unit priority" in the current patent law to "agreed priority", which reflects the progress of the balance of rights and interests between units and inventors. First of all, there is a civil legal relationship between the unit and the inventor. Inventions and creations made by using the material and technical conditions of the unit should follow the principles of equality, voluntariness and equality, give the unit and inventor more freedom in the ownership of rights, and fully affirm and respect that "man is the most critical factor in scientific and technological innovation".
Second, we will no longer distinguish between "major utilization" and other situations, overcome the possible contradictions between the provisions of paragraphs 1 and 3 of Article 6, and eliminate the different understandings of whether "utilization" in the third paragraph includes "major utilization" in practice, and stipulate that in the absence of agreement, the right to apply for a patent for an invention-creation with the material and technical conditions of the unit belongs to the inventor. This not only solves the problem that the inventors and units rarely agree in advance, but also reduces the possibility of disputes to a certain extent, fully embodies the legal protection of individuals and respect for innovative workers, and plays a role in promoting scientific and technological innovation and social progress.
Third, it is conducive to gradually raising the proportion of non-service inventions to a reasonable level. Some scholars believe that Article 6 of the revised draft of the Patent Law is obviously inclined to guide non-service inventions, which is contrary to the principle that China should be inclined to guide service inventions at present. It is suggested that inventions made mainly by using the material and technical conditions of the unit should be regarded as service inventions, but inventors can contract non-service inventions or * * *. China National Intellectual Property Administration Annual Report shows that during the period from 20 12 to 20 16, the proportion of service inventions in domestic invention patent authorization increased year by year, reaching 9 1.4% in 20 16, while the proportion of non-service inventions was/kloc-from 20 12. The above data show that the proportion of non-service inventions under the current patent law is still very low, and the current national policy orientation is to encourage innovation, to actively provide a sound legal system and policy environment for talent innovation, to maximize people's subjective initiative, and to stimulate the innovation enthusiasm of the whole society.
The fourth is to provide legal protection for promoting the transfer and transformation of achievements. In practice, not every invention can be implemented and used for the right to apply for a patent or a service invention owned by a company. For universities or scientific research institutions, the number of patents is often linked to academic evaluation and scientific research funding application. And the implementation rate and transfer conversion rate of service invention patents are very low. In view of the above problems, the revised draft of the Patent Law has made separate provisions on the implementation of service inventions in research institutions and institutions of higher learning. If the patent is not implemented within a reasonable period of time, the inventor may negotiate with the unit to implement it himself.
4 conclusion
To sum up, the revised draft of the Patent Law has no clear provisions on the implementation of service inventions by enterprises. For enterprises, patent application is sometimes a supplement to their core patents to protect their core patent families. If the patent can't be implemented or transferred, the inventor can't get the corresponding rights and interests from it. The right to implement and license the service invention belongs to the unit, and the inventor can't implement it himself or license others to do so. In addition, enterprises often adjust the disposal of invention patents according to the internal intellectual property strategy of enterprises, such as not renewing patents, which leads to the invalidation of patents and then making them public, which is undoubtedly unfavorable to inventors. In view of this, it is suggested to stipulate in the patent law or detailed rules for implementation that the right of service invention-creation of an enterprise can be transferred to the inventor free of charge, so that the service invention-creation can be better implemented, and the inventor can truly turn the knowledge value into wealth through self-implementation, technological improvement or patent trading, which not only protects the rights and interests of the inventor, but also activates the vitality of a large number of service invention patents and the innovation vitality of the whole society.