The Application And Limitation To The Principle Of Giving Priority To Agreement On Reward And Remuneration For Service Inventions

The age of personal invention flew past,while the company itself gradually became the principal part of invention and the role of service invention becomes more and more important.A series of laws set forth provisions related to the reward and remuneration for service inventions and wherein the principle of giving priority to agreement was explicitly specified in the Patent Law(revised in 2010).However,the rules about the agreement of the reward and remuneration system are too general and there still exists several problems when refers to the application in the judicial practices.Currently,researches on the validity of the “agreements” of the reward and remuneration system are comparatively few.Through the analysis of investigation reports relevant to the system of service inventions and the retrieval of a great number of judicial precedents,the author tries to probe into the effect of the agreements and combine the outstanding regulations of other countries to find a better situation for the application and limitation of the principle of giving priority to agreement.First of all,this article probe into the relationship between the agreement and the statutory system while the agreement is proved to be invalid,based on the rule that when lack of agreement,it will be applied to the statutory system.The author also analyzes the legal basis of the principle of giving priority to agreement from the civil law,the contract law and the labor law and highly appreciates the superiority of the principle of giving priority to agreement.Secondly,this article also focused on the analysis of the judicial cases related to the agreement on the reward and remuneration for service inventions.The author tries to classify and analyze different situations occurred in the cases from the angle of procedure,substance and the assumption of responsibility of giving evidence.Through analyzing the focuses of disputes about the agreement of reward and remuneration for service inventions,the author tries to find how to solve those problems.Thirdly,to learn from Germany,we discuss the limitation to the “agreement” and the remedy clause of reward and remuneration for service inventions in Germany;to learn from Japan,we focus on the theory of consideration and discuss the importance of the procedure of agreement and how to judge the rationality of the agreement;to learn from Korea,we pay attention on the requirements for the procedure in the agreements;to learn from the United Kingdom,we confirm the importance of the payment of the reward and remuneration for service inventions after the termination of the labor contract.We try to absorb from those regulations to progress ours.Based on the analysis of the theory,legal practices and foreign countries' advanced regulations,the author tries to give suggestions from the angle of the methods,procedures,time,contents and remedies of the “agreement” of the reward and remuneration for service inventions:encourage the commpany to formulate rules and regulations in accordance with the leagl procedures;give first place to agreements before invention;pay more attention on procedural review and avoid substanial review if unnecessary;let the company bear the burden of proof if necessary.