Study On The Distribution System Of Rights And Interests In Service Invention

As a social game rule,institution plays an important role in shaping people’s interaction and improving economic performance.The distribution system of rights and interests in service invention is an important part of the patent system,it undertakes the important task of stimulating innovation and promoting transformation of scientific and technological achievements.However,the overall conversion rate of service inventions in China is low,and even lower in universities and research institutes where a large number of patents are "shelved" and failed to be transformed into real productivity.As a result,the purpose of patent authorization comes to nothing.To a large extent,the power and efficiency of achievements transformation is determined by the distribution system of rights and interests.As the service inventions occupy the majority of inventions in China,it is necessary to take the distribution system of rights and interests in service inventions as an important starting point to promote the transformation of scientific and technological achievements.The core of the distribution system of rights and interests in service invention is to allocate the rights and interests between the inventor and his workplace,its essence is to define the property rights,to allocate the property rights and to distribute the interests of service invention.In view of this,the author attempts to take "property incentive" as the main line to theoretically explain,empirically test and improve the distribution system of rights and interests in service invention from the perspective of law and economics.The article is divided into five chapters:After briefly defining the research scope,the first chapter makes a theoretical explanation from three aspects which are institutional change,theoretical basis and legislative design.It is found that the institutional change of distribution system of rights and interests in service invention is the process in which the property rights are granted to service invention achievements and the property right structure is adjusted continuously,which reflects the legislative idea of encouraging innovation with "property right".Following this idea,we can refine the incentive theory of entitlement by combining the theory of property right and incentive theory.The incentive theory of entitlement is highly consistent with distribution system of rights and interests in service invention,so it is legitimacy and realistic necessary to be the theoretical basis.The incentive theory of entitlement aims to maximize the efficiency of resource utilization by allocation of entitlement,which should be internalized into institutional rules so as to make clear its natural structure of distribution system of rights and interests in service invention.The second chapter tests the incentive effect of the distribution system and analyzes its causes with the incentive theory of entitlement.The conclusion are as followed: the patent quality is uneven,the motive power of collaborative innovation is insufficient,the implementation rate and industrialization rate of effective invention patents are low as a whole,which shows that the current incentive effect of Chinese distribution system of service invention is insufficient.The reason for the lack of incentive lies in the imperfect incentive mechanism of property rights,which is embodied in the unclear delineation of property rights,unreasonable allocation of property rights and unsmooth operation of property rights.The third chapter compares and analyzes the distribution mode of service invention from the perspective of efficiency of property right.After successive analysis,it is pointed out that the common ownership mode of service invention should not be stipulated as a legal form of property right because it is fair but inefficient;The unilateral ownership mode of service invention can effectively realize the incentive effect,but we should pay attention to the balance of rights and interests;The national ownership mode of service invention brings great negative externalities.We should actively seek alternative solutions and straighten out the interest relationship among the state,units and individuals.After comprehensive comparison of the above distribution modes,it is concluded that the appropriate distributive mode at present is "separation and balance of powers".The forth chapter offers some suggestions on improving the system from three aspects: the delineation of entitlements,the allocation of rights and the distribution of interests.In terms of the delineation of entitlements,"Task-based" inventions should be attributed to employer preferentially;"Conditional utilization type" inventions should be attributed to the inventor preferentially;inventions funded by financial support should be attributed to the project undertaker unless the inventions are involved in major interests and national security.In terms of the allocation of rights,when the employer owns the patent right,the inventor should be empowered the priority to obtain the assigned patent in the same circumstances,the right to implement patents with agreement and the right to claim remuneration for service invention.When the inventor owns the patent right,the employer should be entitled the non-exclusive exploitation right in free of charge,the right of subsequent acquisition of patent right or its competency.When the patent right for invention-creation of a financially funded project belongs to the project undertaking entity,the state shall be allocated with the right of intervention and non-exclusive right of free implementation,and the inventor shall be allocated with the right of patent application and agreement implementation after obtaining consent.In terms of profit distribution of service invention remuneration,make clear that the obligation of payment of remuneration is not conditional on patent implementation.When determining the amount of service invention remuneration,such factors as profits earned by the entity,contribution of both parties,staff treatment and risk bearing should be taken into account.Statutory procedures shall be followed when remuneration is prescribed for inventions by contracts or internal regulations,otherwise,the amount of remuneration will be deemed "unreasonable".The fifth chapter puts forward some corresponding improvement countermeasures from the perspective of system guarantee,so as to ensure the operation of the system which is constructed in the fourth chapter.Firstly,we should establish such corresponding systems as following:the reporting system,Information disclosure system,and the arbitration system of service invention.the above systems are to reduce the possible moral hazard and the cost of rights protection.Secondly,we should get rid of the institutional obstacles to the exercise of the property rights of state-owned service inventions,so as to smooth the operation mechanism of property rights.The distribution system of rights and interests in service invention is a long-standing topic.From the perspective of entitlement incentive,this paper may have the following innovations:firstly,refine the incentive theory of entitlement on the basis of property right theory and incentive theory,and empirically test and improve the current distribution system of rights and interests in service invention;Secondly,it is demonstrated that "separation and balance of powers" is an appropriate incentive model of entitlement."separation of powers" refers to separating specific powers from patent rights and allocating them to non patent owners." balance of powers" refers to the relationship to check and balance rights among interest subjects."separation and balance of powers" is different from "division of property rights".The "division of property rights" is to separate proportionally the patent rights so as to form a common ownership relationship.The purpose of "separation and balance of powers" is to promote the use of patents,and the two sides form a usufructuary legal relationship.Thirdly,it advocates the allocation of property right to solve the incentive problem of property right."Property right allocation" takes property right efficiency and distributive justice as the dual value objectives,make full use of the exclusive effect of property rules,allocate property rights of different strengths for different subjects in order to form a mutual structure of "checks and balances",motivate people to make more use of invention efficiently,and maximize the utility of the service invention.Therefore,it is the most effective way to achieve long-term incentive effect.On the contrary,the "empowerment" in current policy means that enterprises and institutions give property rights to incentive scientific researchers,such is the internal incentive of enterprises and institutions in nature,and its incentive effect and scope are limited.Fourthly,as to the negative externalities of national service inventions,the fundamental solution is to confirm the property right of legal persons in colleges and universities by legislation so that they can realize the autonomy of property right;Push forward the special legislation on national research institutions and confirm their status as special legal persons and the scope of their autonomy.