How does the law stipulate inventors of service inventions
Article 6 of the Patent Law implements this Inventions and creations that are completed by the unit's tasks or mainly by utilizing the unit's material and technical conditions are service inventions and creations. The right to apply for a patent for a service invention-creation belongs to the unit; after the application is approved, the unit becomes the patentee.
For non-service inventions and creations, the right to apply for patents belongs to The inventor or designer; after the application is approved, the inventor or designer is the patentee.
Achieved using the material and technical conditions of the unit In the case of inventions and creations, if the unit has a contract with the inventor or designer and agrees on the right to apply for a patent and the ownership of the patent right, such agreement shall prevail.
Recognition of service inventions
(1) Perform the tasks of the unit Completed inventions
If it falls into one of the following circumstances, it is a service invention-creation ：
1. Inventions made by the inventor or designer in the course of his or her job. This job is the job scope of the inventor or designer, which falls within the scope of daily work responsibilities. It does not refer to the business scope of the unit or the scope of the individual's major. Inventions and creations completed while engaged in daily work are service inventions and creations.
2. Perform one of the duties assigned by the unit Inventions and creations completed for external tasks. The "unit" here includes: the employee's personnel affiliated unit and the temporary work unit (such as the unit where seconded personnel are employed, the unit where professionals are employed, etc.) "Tasks other than their own work" refers to the staff's tasks outside of their own work. Arrangements for short-term or temporary tasks. If the unit arranges specific personnel to participate in research and development tasks for specific purposes other than their own work, they should sign an agreement to clarify the scope of the tasks and keep relevant evidence to avoid confusion between the two parties about whether the invention is a service invention after the invention is completed. Disputes arise due to creation.
3. After resignation, retirement or job transfer1 Inventions and creations made during the year that are related to the work performed by the original unit or the tasks assigned by the unit. It should be noted that inventions and creations made after resigning, retiring, or transferring work must meet two conditions at the same time in order to constitute service inventions and creations.
1) The invention must be designed by the inventor Made within 1 year after the person resigned, retired or transferred from the original unit;
2) The invention-creation is related to the inventor’s or designer’s own work or assigned tasks in the original unit.
(2) Mainly make use of the material and technical conditions of the unit The completed inventions
In practice, many The completion of inventions and creations all utilizes the material and technical conditions of the unit. However, according to the provisions of the Patent Law, it does not mean that the inventions and creations are made by utilizing the material and technical conditions of the unit. The inventions and creations must meet the following conditions: p>
1. The completion of the invention takes advantage of the “material and technical conditions” of the unit . The so-called material and technical conditions refer to the unit’s funds, equipment, parts, raw materials, or technical data that are not disclosed to the public.
2. The completion of the invention and creation utilizes the material and technical conditions of the "own unit". This unit refers to the unit to which the inventor is affiliated, the seconded unit, and the employing unit. If If the material and technical conditions used by the subject in the process of completing the invention have nothing to do with the unit, they are not considered to be service inventions.
3. The completion of the invention and creation "mainly" utilizes the material and technical conditions of the unit. What is emphasized here is that the material and technical conditions of the unit are in The role and proportion in the process of completing the invention and creation. The Patent Law does not provide detailed provisions on this point. The material and technical conditions of the utilization unit refer to the use of all or most of the unit's funds, equipment, parts, components, etc. in the process of invention and creation. Raw materials and technical data not disclosed to the public. If such use is essential and decisive for the invention and creationIf the conditions for the invention to function are met, the invention-creation should be a service invention-creation. If the inventor or designer only makes limited use of the material and technical conditions of the unit, and this use has little bearing on the completion of the invention or does not play a decisive role, the invention will not be considered a service invention.
It should be noted that only those who meet the above three Only if the invention is completed "mainly by utilizing the material conditions of the unit" can it be recognized as a service invention under certain conditions. The reason is that the completion of this invention and creation is inseparable from the material help of the unit. Without this material help, the invention and creation would not be completed.
The determination of whether it is a service invention-creation does not depend on Whether the invention and creation is made within the unit or outside the unit does not depend on whether it is made during working hours or in spare time outside working hours, as long as it is part of the execution of the unit's tasks or mainly utilizes the unit's material and technical conditions. , even if the invention is completed at home in spare time, it is still considered a service invention. Because mental work is different from physical work, it can not be restricted by specific places and commuting times.
Rights of inventors of service inventions
span>The Patent Law stipulates that the right to apply for patents for service inventions and creations belongs to unit. In this case, the inventor or designer himself enjoys the following two rights:
(1) After the invention is completed, the inventor or designer enjoys personal rights. Personal rights mainly have two aspects. First, the inventor or designer enjoys the right of signature, that is, the right to state that he or she is the inventor or designer in the patent document. Second, after the patent right is granted, the inventor or designer enjoysThe right to receive rewards, including spiritual rewards and material rewards. This kind of spiritual reward also belongs to personal rights and can take the form of granting a copy of a patent certificate, a medal, giving praise, etc. These personal rights belong to the inventor or designer and are inseparable from his or her person. Therefore, they cannot be transferred or inherited, nor can anyone usurp or plagiarize them.
(2) The inventor or designer also enjoys certain property rights. This property right is expressed as material rewards, which can be bonuses or other forms of material benefits. Material rewards are issued in two stages: after the patent right is granted, the owner or holder of the patent right shall pay funds to the inventor or designer; if the unit implements or licenses other units or individuals to implement, the unit shall pay an after-tax fee. Different proportions of the profits are paid to the inventor or designer as a reward (called one reward and two rewards). The inventor or designer has worked hard to create an invention and made a contribution to society, so he should be rewarded. This is in line with the socialist principle of distribution according to work and is conducive to mobilizing the enthusiasm of scientific and technological personnel and employees to engage in invention and creation.
In order to facilitate implementation, the Patent Law Implementing Rules or relevant The Regulations provide specific provisions on the form, content, standards and payment methods of the various rewards mentioned above.
The above content is the legal provisions on service inventions and creations After understanding the relevant regulations for inventors, engineers who have been working on the front line for a long time can better protect their rights, and units can better work in accordance with the law if they understand them. If your application is more complicated, the Legal Savior Network also provides online lawyer consultation services. You are welcome to seek legal consultation.
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