Discussing The Disputes On The Ownership Of The Service Invention Patent After The "Resignation" Of The Patent Law From The Actual Judgment In China

In view of the fact that China is currently facing a shortage of innovation and a large number of patents,the possible reason is that enterprises are not willing to invest in research and development,and employees lack the incentives for research and development.Since modern inventions have been independently invented by individuals in the past,and nowadays they are mostly organized cooperative research and development models.Therefore,in principle,all countries vest the rights of patent applications to employers,but both recognize that both workers and employees can The right to change is attributable to the employee.However,perhaps because the contracting ability of the two parties is not equal,usually the employer can obtain the right to invent.When the serva nt completes the invention and cannot obtain the results of his invention,most of them are looking for better contract conditions by means of "job-hopping".In China,this situation can be regulated in accordance with the third paragraph of Article 12,paragraph 1 of the Regulations of the Patent Law.However,the legal position of this article is unclear,and the constitutive elements of the stipulations are full of ion.Therefore,the current judicial practice has produced many opinions on the judgments of this article and the contradictions in the content of the judgment.This article will sort out the judgments on the"post-employment" job invention disputes from 2014 to 2018,and extra ct and discuss diffe rent opinions.This article argues that the third paragraph of Article 12,paragraph 1 of the Regulations of the Patent Law is an independent basis for claims.In addition to labor relations and personnel relations,the normative subject should expand the scope,and all subjects that have the ability to access controversial inventions and creations should be included in the normative subject.Moreover,the time point for making disputed inventions and creations should be actively investigated,and the date when the employees filed the disputed inventions and creations with the patent administration department for deep love should not be recognized as the time point.And when judging whether the disputed invention creation has relevance to its own work,it should give priority to specifically confirming the employee’s own job and then judge.The final correlation criterion should be based on the technical problem standard,that is,the two must belong to the same technical field,and must be resolved to solve the same technical problem.Finally,it is still necessa ry to judge whether there is simila rity,continuity or inheritance.