Technological innovation has two basic elements, human creativity and capital investment. Among them, human creativity plays a decisive role. With the intensification of technical competition and the deepening of R&D, the scale of R&D investment is also increasing, which requires organized R&D to complete. Therefore, service invention plays an increasingly important role in technological innovation.
In China's patent application and authorization, the innovation level of service patents is higher than that of non-service inventions, but the number of service patents is small. 1985 to 2002, in domestic patent applications and authorizations, invention patents accounted for 22% in service patent applications and only 14% in non-service patent applications, but service patent applications only accounted for13 of the total patent applications, and the rest were personal non-service inventions. In the same period, service invention patents accounted for 95% of foreign patent applications. These phenomena reflect that we need to learn from international experience, improve the ownership policy of service inventions, and improve the national technological innovation ability and level.
International experience: highlighting the role of service inventors
Summing up the relevant laws of some countries and regions, the policies on the ownership of service inventions are as follows.
-There are two main ways to divide the scope of application of service inventions. One is that according to the division of job responsibilities, inventions made by employees in the normal work agreed in the employment contract or entrusted by the employer belong to job inventions. The other is divided according to the use of resources. In addition to the normal work agreed by employees or inventions entrusted by employers, inventions that use the experience, labor and facilities of employers also belong to service inventions. The former division is based on the responsibilities and tasks stipulated in the contract, and the boundaries are relatively clear. The second division is relatively wide, and if it is not mastered well, it may limit the space for employees to create flexibly.
-Patent rights for service inventions are divided into two categories. First, the principle of "employer first" is adopted, and the service invention patent belongs to the employer, and the service inventor enjoys the right to share the intellectual property remuneration. For example, the patent law of France stipulates that employees get corresponding remuneration according to employment and entrustment contracts. Second, the principle of "inventor first" is adopted. The original right of the service invention patent belongs to the service inventor, and the employer enjoys the patent exploitation right. For example, Japan and Germany adopt this principle. Japanese patent law stipulates that the original right of service invention patent belongs to the inventor, and the employer automatically enjoys the non-exclusive right to use it; When the employee transfers the patent right of service invention to the employer, the inventor has the right to get reasonable remuneration from the employer.
-Balance the interests of employers and inventors, and highlight the position and role of job inventors. Regardless of the employer's priority or the inventor's priority, the patent laws of many countries and regions highlight the inventor's position in the patent application qualification, and clearly stipulate that the patent applicant must be the inventor or his assignee (including legal person). With this provision, the employer must respect the service inventor, and the inventor should also be responsible for the innovation of research results. For example, the United States implements the principle that employers give priority to service inventions, but its patent law stipulates that patent applicants should be inventors, and non-inventors must hold the inventor's application for transfer when applying for patents.
-standardize the incentive mechanism for job inventors funded by state-owned institutions and the government. Usually, the patent laws of various countries stipulate the basic principles of remuneration for service inventors, but they do not stipulate the specific proportion or amount of remuneration. The actual remuneration is determined by the contract between the employee and the employer. Because government financial expenditure is a kind of public resource, many countries and regions have adopted some special laws or administrative regulations to stipulate the remuneration ratio of job inventors in state-owned institutions and government-funded institutions. The Federal Technology Transfer Act of the United States clearly stipulates the lower limit of the commission ratio of service inventors in the federal technology transfer income.
China's main problem is: paying more attention to employers than inventors.
Compared with the world, the main problem of the ownership policy of service inventions in China is that employers are more important than inventors.
-Not paying enough attention to the position and role of service inventors. Our country adopts the principle that the employing unit gives priority to service inventions, and the patent law stipulates that the right to apply for a patent for service inventions belongs to the employing unit. As a result, on the one hand, employers directly control the patent application right of service inventions, ignoring the rights and functions of employees; On the other hand, because the service inventor has no right to apply, he is not responsible for the innovation of the results.
-the incentive mechanism for job inventors is not in place. Although the Patent Law stipulates that service inventors enjoy the right to distribute patent benefits, the Provisions on Promoting the Transformation of Scientific and Technological Achievements of the Ministry of Science and Technology and other departments also propose that those who have completed their service scientific and technological achievements and other personnel who have made important contributions to the transformation of achievements should be rewarded according to law. However, due to the lack of specific operation methods, in the implementation, enterprises and institutions often emphasize that the service invention belongs to the unit and lack the incentive mechanism for the service inventor. In particular, there is egalitarianism in the distribution system of state-owned enterprises and institutions, so it is difficult for most job inventors to get their due remuneration and employees' enthusiasm for innovation is not high.
The scope of service invention is too wide, which limits the space for researchers to create flexibly. According to the provisions of China's patent law, service invention refers to the service invention created by using the material conditions of the unit. Including inventions in their own work; Inventions and creations completed by performing tasks other than their own jobs delivered by their own units; Inventions and creations related to one's own work or tasks assigned by the original unit made within one year after resignation, retirement or transfer. The definition of service invention in China is close to that in Germany, but the original right of German service invention patent belongs to the inventor and the employer has the right to implement it. In China, not only the patent of service invention belongs to the employer, but also the scope of service invention is too wide, which limits the initiative and flexibility of scientific and technological personnel.
-The intellectual property management system is not perfect. Because most scientific research institutions and universities, as well as the national science and technology plan, have not established a standardized intellectual property management system, on the one hand, they emphasize the interests of institutions and ignore the interests of inventors, which inhibits the enthusiasm of scientific researchers to transform achievements; On the other hand, due to poor management, there is a phenomenon that inventors turn service inventions into non-service inventions through various channels, and some public resources into personal achievements. Some suggestions: pay attention to the role of job inventors
Establishing an incentive mechanism for scientific and technological personnel to give full play to their strengths is an important goal of the policy of ownership of service inventions. Due to the immaturity of China's capital market and technology market, the follow-up research and development and market development of a single patent are difficult and the degree of industrialization is low. Therefore, the attribution of service inventions should be based on the principle of giving priority to employers, but we should attach importance to the role of service inventors and increase their protection and encouragement. The incentive mechanism of job inventors is not a simple income distribution problem, but should be improved to enhance the national innovation ability and give necessary legal and institutional protection.
The first is to clarify the patent application of the service inventor. Highlight the role of inventors in patent application rights, enhance the awareness of employers to respect job inventors, and improve inventors' sense of innovation responsibility.
The second is to appropriately narrow the scope of service invention. The scope of application of service invention is mainly determined by service contract and entrustment contract, which leaves more room for employees to create freely. At the same time, in order to ensure the interests of employers, employers can be allowed to give priority to the implementation of employees' non-service invention patents.
The third is to standardize the salary reward system for inventors in public institutions and implement the incentive mechanism for inventors. Formulate special supplementary laws and regulations to refine the remuneration and income distribution methods for job inventors in state-owned and government-funded scientific research institutions. State-owned enterprises and institutions should break the egalitarian concept and effectively establish an incentive mechanism for job inventors. Private enterprises mainly rely on market competition mechanism to determine the incentive of job inventors.