American patent law fully embodies the above principles. The patent application must be filed by the inventor, and he must swear that he is the original and original inventor of the invention-creation requested for protection. In other words, not only the inventor has the right to apply for a patent, but also the invention must be conceived by himself, not from others. The so-called "idea" refers to an idea with specific content and realization, that is, the inventor can only say that he has an idea after he has mastered all the knowledge and details about the invention.
The so-called inventor or designer in China's patent law refers to the person who makes creativity in the essence of invention and creation. That is to say, as an inventor, it should be the person who puts forward a new technical scheme for a product, a certain method or its hairstyle, or the person who puts forward a new practical technical scheme for the shape and combination of a product; As a designer, you should be a person who makes a new design for the shape, pattern, color or their combination of products that is aesthetic and suitable for industrial application. In the process of completing the invention-creation, a person who is only responsible for organizing the work, providing convenience for the use of material conditions or engaging in auxiliary work cannot be recognized as an inventor or designer.
The so-called full-time invention-creation refers to the invention-creation made by workers with working conditions who do not perform tasks other than those entrusted by their own units, nor mainly use their own material conditions-their own funds, equipment, spare parts, raw materials or technical materials that are not disclosed to the public; Or 1 year later, the unemployed individuals who resigned, retired or changed jobs made inventions unrelated to their own work or tasks assigned by their original units. The inventors and designers of the above inventions are the creators of these inventions and intangible property, and of course they are also the owners of these intangible property. Article 6 of China's patent law clearly stipulates that the right to apply for a patent for a non-service invention-creation belongs to the inventor or designer. After the application is approved, the patent right belongs to the inventor or designer.
Similarly, non-service inventions with the same inventor or designer can also be used as patent applicants and patentees. If the creation is done by two or more people, they all have the same idea and have made creativity. In the case of non-service invention, there will be problems in the relationship between * * * and the inventor or * * * and the designer. In this case, * * * is usually the same inventor or * * * and designer, * * * *
An invention is often completed by several people or even more people. It is particularly important to point out that not all the people involved in the work are * * * the same inventor or * * * the same designer. The * * * co-inventor or * * * co-inventor or * * * co-designer mentioned here refers to the person who is responsible for organizing the work, providing convenience for the use of material conditions or engaging in other auxiliary work in the process of substantially participating in the invention and creation activities, and should not be recognized as a * * * co-inventor or engaging in other auxiliary work. On this basis, it can be confirmed that the overall management of its research and design personnel did not put forward specific ideas, but only put forward topics. Or people who only make some general suggestions in the process of invention and creation; A person who provides funds to the inventor (designer) or provides convenience in terms of equipment and technical funds; And those who do experiments, drawing and data processing according to the requirements of researchers and designers are not the same inventor or designer. According to the patent law of our country, the inventor or designer of non-service invention-creation enjoys the right of patent application and patent right. At the same time, it is stipulated that the patent application right and patent right can be transferred. The inventor or designer's ownership of the non-service inventor's creation can be transferred to others through legal channels, such as buying and selling, gift inheritance, etc. Through the transfer, the buyer, the donee or the successor become the legal transferee of the invention and creation, and the embezzlement enjoys its ownership. Therefore, the legal assignee must enjoy the right to apply for a patent for invention and creation and the patent right. To transfer the right to apply for a patent and the patent right, the parties concerned must submit a written contract or its legal documents, which will take effect after being registered and announced by the Patent Office; At the same time, the name of the inventor or designer shall be stated in the patent application request. Because the personal rights in the patents of inventors and designers cannot be transferred.
For a * * * co-invention-creation, the consent of other * * * people-* * co-inventors or * * co-designers shall be obtained in advance, and other * * * co-inventors or * * co-designers shall have the priority to be assigned under the same conditions. /kloc-since the second half of the 0/9th century, with the rapid development of science and technology, it often takes more money, longer time and advanced equipment to complete an invention. More and more inventions are not done by independent inventors or designers as in the past, but by legal persons-companies, enterprises, scientific research institutions and other staff in the process of performing their duties. In this case, who has the right to apply for and obtain the space patent right? This is not only related to the economic interests of the service inventor's unit, but also to the industrial policy of the relevant countries.
According to Article 6 of China's Patent Law, the right to apply for a patent belongs to the unit that performs the task or the service invention-creation mainly made use of the material conditions of the unit. After the application is approved, if a unit owned by the whole people applies, the patent right shall be held by the unit; Where an entity under collective ownership, a diplomatic enterprise or a Sino-foreign joint venture applies, the patent right belongs to the applicant (or enterprise).
The so-called service invention-creation mainly refers to the invention-creation completed under the following two circumstances:
1. Inventions and creations completed by performing the tasks of the unit.
1. Inventions at work
This refers to the completion of inventions as activities within the scope of staff duties. Therefore, judging whether an invention belongs to a service invention can be considered with reference to the scope of responsibilities and the nature of work of the staff. In addition, the positions of staff members are not only their current positions, but also the positions they used to hold. Item 3 of Article 10 of the Detailed Rules for the Implementation of China's Patent Law stipulates that "inventions made within 1 year after resignation, retirement or transfer of work related to the work undertaken by myself in the original unit or the tasks assigned by the original unit" also belong to service inventions. Because this invention was made within 1 year after leaving the company, it is actually closely related to the original position. During his tenure, he has already started research work, even nearly finished it, so it should be a service invention.
2. Inventions and creations other than those delivered by the unit.
The above work is generally a long-term work undertaken by the staff according to the requirements of the unit. Tasks other than those delivered by the unit mentioned here. It is a short-term or temporary post delivered by the staff according to the requirements of the unit. Inventions and creations made by temporary or specially hired personnel shall also be included in the scope of application of this item. Inventions and creations related to the original assigned tasks within 1 year after the transfer of the unit are basically the same as those related to the original post within 1 year after the retirement of the staff, and should also be recognized as service inventions and creations.
Two, mainly use the material conditions of the unit to complete the invention.
This refers to the invention and creation completed by the staff, which is neither their own work nor the tasks assigned by the unit, but they are carried out automatically. Of course, this kind of invention belongs to the business scope of the unit, mainly using the material conditions of the unit-funds, equipment, spare parts, raw materials or technical information that the unit does not disclose to the outside world. Without these material conditions, invention and creation cannot be completed. As for how to judge whether to "mainly" use the material conditions of the unit, it needs to be analyzed according to the specific situation and decided appropriately.
The invention completed in the above two cases is a service invention. The right to apply for a patent for a service invention-creation belongs to the unit. After the application is approved, the patent right shall be owned or held by the unit. It should be noted that the property of enterprises owned by the whole people, that is, state-owned enterprises, whether it is tangible property such as machinery, equipment and factories, or intangible property such as trademarks and patents, belongs to the state. In other words, the state has the ultimate ownership of these properties, while the enterprise enjoys the legal person property right (operational autonomy). Therefore, Article 6 of the Patent Law stipulates that "holding" the patent right for the service invention-creation completed by the staff of a unit owned by the whole people actually belongs to the state.
According to China's Patent Law and its detailed rules for implementation, the patent owner shall reward the inventor or designer, including funds and remuneration. The capital of an invention patent shall not be less than that of 200 yuan; The capital for a patent for utility model or a patent for design shall not be less than that of 50 yuan. Bonuses can be included in the cost, and enterprises and institutions can be charged from business expenses. Within the validity period of the patent right, after the patent for invention-creation is implemented, 0.5-2% of the profit from the implementation of the invention or utility model or 0.05-0.2% of the profit from the implementation of the design shall be paid to the inventor or designer as remuneration every year; Or give the inventor or designer a one-time reward with reference to the above ratio. Where an inventor holds or each unit permits others to exploit his patent, it shall extract 5% of the after-tax royalties collected and send them to the inventor or designer as remuneration. These remuneration shall be paid from the profits and royalties obtained from manufacturing patented products and using patented methods, and shall not be included in the total bonus of the unit. However, the personal income of the inventor or designer shall be taxed according to law.
In the service invention-creation, if two or more units cooperate or one unit accepts the research and design task entrusted by other units, how to solve the problem of patent application right and patent ownership? According to the provisions of Article 8 of the Patent Law, if both parties agree otherwise, such agreement shall prevail. If there is no agreement between the two parties, the exclusive right to apply belongs to the unit that has completed or jointly completed the invention and creation. After the application is approved by criticism, the relevant units may also agree that the entrusting unit has the right to implement it, without paying the use fee, and it is non-transferable and indefinite. Or entrust the unit to obtain the patent right, and the unit that has completed the invention and creation shall obtain the right of free, non-transferable and indefinite exploitation. Foreigners refer to natural persons with foreign nationality and legal persons established in accordance with foreign laws and registered in foreign countries. In order to thoroughly implement the policy of opening to the outside world, expand international scientific and technological exchanges and cooperation, and accelerate the introduction of foreign advanced science and technology, China has adopted the internationally accepted principle, that is, foreigners are allowed to apply for patents and obtain patent rights in China on the premise of adhering to the principles of sovereignty and parallel and mutual benefit. Reflected in China's patent law, including the following two situations. First, foreigners with habitual residence in China, as well as Sino-foreign joint ventures and foreign-funded enterprises in China. According to the "national treatment principle" stipulated in the Paris Convention for the Protection of Industrial Property, the second paragraph of Article 6 of China's Patent Law stipulates that the right of a foreign-funded enterprise or a Sino-foreign joint venture to apply for a patent for its service invention-creation in China belongs to the enterprise; After the application is approved, the patent right belongs to the applicant enterprise. As for foreign natural persons who have lived in China for a long time, whether they work in foreign capital, Sino-foreign joint ventures, or in state-owned enterprises, collective enterprises or private enterprises in China, if they are service inventions, the right to apply for patents belongs to them. After the patent application is approved, the patent right belongs to the enterprise or unit applying for the patent. If it is a non-service invention-creation, the right to apply for a patent and the patent right belong to the foreigner who is the inventor or designer. Second, foreigners who have no habitual residence in China and foreign enterprises or other foreign organizations outside China. Article 19 of China's patent law stipulates: "If a foreigner, foreign enterprise or other foreign organization without a habitual residence or business office in China applies for a patent in China, it shall be handled in accordance with the agreement signed between his country and China or the international treaty to which * * * is a party, or in accordance with the principle of reciprocity." March 1985 China officially became a member of the Paris Convention for the Protection of Industrial Property. Article 2 of the Paris Convention provides for the national treatment of this intelligent member state; Article 3 stipulates that nationals belonging to non-union countries shall enjoy the same rights as nationals of that country if they have their domicile or business office in the union country. Therefore, all natural persons and legal persons who are parties to the Paris Convention can apply for and obtain patents in China. Similarly, China's natural persons and legal persons can also apply for patents in other States parties to the Paris Convention and obtain patent rights.
As for countries that have not acceded to the Paris Convention, foreigners can apply for and obtain patent rights by signing bilateral agreements or according to the principle of reciprocity. In other words, if a country's patent law unconditionally gives foreigners patent protection, then China also gives its own nationals national treatment; If the patent law of a country stipulates that nationals of other countries are allowed to apply for patents in that country on the condition of reciprocal treatment of other countries, then China can also grant patent protection to nationals of that country.
The above provisions of China's patent law focus on the international nature of industrial property protection and the principles of safeguarding national sovereignty, equality and mutual benefit.