A brief analysis of the newly revised Patent Law and Implementing Rules: Adding oil of profit to the fire of wisdom

Editor's note: The newly revised "Patent Law of the People's Republic of China" (referred to as the "Patent Law") and the newly revised "Implementing Rules of the Patent Law of the People's Republic of China" (referred to as the "Implementing Rules") were implemented on October 1, 2009 and Effective on February 1, 2010. The newly revised "Patent Law" highlights the theme of encouraging innovation, refines the provisions on service inventions, and improves the reward and remuneration system for Inventors of service inventions, with the purpose of further improving the quality of inventors and designers engaged in service inventions. Initiative to protect the interests of inventors from a legal perspective.

The author of this article summarizes the relevant provisions on service inventions, patent application rights or the ownership of patent rights in the newly revised Patent Law and the newly revised Implementing Rules, as well as The protection of relevant interests of inventors of service inventions and other contents are introduced and analyzed, which can be used as a reference for relevant units and individuals.

The newly revised "Patent Law of the People's Republic of China" and the newly revised "Implementing Rules of the Patent Law of the People's Republic of China" have been implemented. The author has specially sorted out and analyzed the aspects that are most closely related to relevant units and individuals, as follows:

1. The new Patent Law’s treatment of service inventions The regulations are more specific and more in line with the reality of social and economic development.

The new "Patent Law" stipulates: Service inventions refer to inventions and creations completed by performing the tasks of the unit, or mainly using the material and technical conditions of the unit. Service inventions generally refer to:

1. Inventions made by the inventor in the course of his or her job;

2. Inventions and creations made by the inventor while performing tasks other than the duties assigned by the unit;

3. The inventor retired, transferred from the original unit, or For inventions and creations made within one year after the termination of the labor and personnel relationship, if the invention results are related to the inventor's own work performed by the original unit or the tasks assigned by the original unit, the invention and creation are classified as service inventions, and the original unit shall enjoy the right to apply for a patent or the patent right. . The rights and obligations are equal, and the unit must also give corresponding rewards and remuneration to the inventor in accordance with the law.

The so-called unit includes temporary work units, such as consulting units and secondment units. The unit's material and technical conditions refer to the unit's funds, equipment, parts, raw materials, or technical data that are not open to the public.

These detailed regulations originally originated from judicial trial practice, were later incorporated into judicial interpretations, and are now clearly stipulated in the implementation rules, which are more conducive to actual work operations.

2. The ownership of patent application rights or patent rights can be agreed upon.

The new "Patent Law" stipulates: the use of the substance of the unit For inventions and creations that are completed based on technical conditions, if the employer and the inventor have a contract that stipulates the right to apply for a patent or the ownership of the patent rights for the result, such agreement shall prevail. For example, if the inventor borrows the laboratory, instruments and equipment of the employer, or uses If you have obtained the unit’s raw materials, etc., you can agree with the unit that the inventor will pay a certain fee to the unit, and the patent application rights or patent rights for the results will belong to the inventor.

3. Enterprises' rewards and remuneration for employees' service inventions shall be based on the agreement if there is an agreement; if there is no agreement, it shall be statutory.

1. The "Implementation Rules" stipulates the rewards and remuneration for service inventions "Principle of Priority of Agreement". Enterprises can make an agreement with employees in advance on the amount and method of rewards and remuneration after patent application and patent authorization. This agreement can be for specific employees, or it can be in the rules and regulations formulated by the enterprise in accordance with the law. Riga stipulates.