The Research On The Law Applicable Of Service Invention Ownership Of Ex-employee Of China

All along,ownership of service invention rights is a topic of heated debate.The regulations of various countries in the world are also different.At the legislative level,our country has always adopted the “ownership first” right ownership model.In recent years,with the improvement of intellectual property awareness and the acceleration of the flow of people.The proportion of inventors' service invention cases has gradually increased,and some uncertainties have also emerged.This highlights the balance of interests between companies and employees.For companies,employee turnover is sometimes catastrophic,because a good employee may have mastered a large amount of important information about the company and know a lot of core technologies.At this time,the resignation of employees will definitely reduce the competitiveness of the company.From the point of view of employees,if the industries that they had been engaged in before they left after leaving the company completely,it is not only an injustice of employees' freedom to choose a job and even a right to live,but also a waste of social labor resources.In practice and judicial practice,due to the more general provisions of the law,judicial practice has the same case of different judgments.The patent warfare triggered by the departure was particularly prominent.Both the original unit and the retired employees claimed that the ownership of the patents involved should belong to themselves.Different judges used different standards of identification in similar judicial cases.Some scholars believe that the inventions and creations related to the original unit's tasks(including assignments)made by the former units after they left the post-employment work are the pre-emptive actions of the “patent law” in China in order to prevent malicious people from leaving such jobs.The technology possessed by the original unit seeks private interests and damages the interests of the original unit to new units of the same competition.However,it must be acknowledged that many of the former unit employees who left after their “retirement,retirement,or reassignment work” left their positions irrelevant to their personal interests.This subject is considered together with the subjective and malicious entrants,which is actually contrary to the Patent Law.The legislative intent of this article is stipulated.This article discusses the attribution of the invention and creation of the resigned person through the legal analysis of the service invention creation,the concept of the service invention and the judicial practice of the resigned person's invention and creation.The author attempts to summarize and analyze the legal application of the separation of invention and creation of departing employees in China.Combining the admissibility of the ownership system of service inventions in foreign developed countries,the author puts forward specific recommendations and criteria for recognition.Specifically,the structure is as follows:The first chapter: “The status quo and problems of the judicial practice of the invention and creation of the separated employees in our country”.With the increase in the number and proportion of service inventions in recent years,a large number of invention-creation disputes in the application of laws have emerged in practice.Based on the current status of protection of service inventions in China,the principles followed in handling invention-creations have been introduced,and disputes have been introduced.The type divides it into two types,and analyzes the specific problems existing in the invention and creation attribution of the separated employees.The second chapter: “Analysis of the Value of China's Service Invention Attribution Cognizance and Comparative Study of Extraterritorial Law”.First of all,it discusses the legislation analysis of the service invention system for departing employees.From the perspective of national legislation,we analyze the service invention system for departing employees.Then analyze and analyze from the interestlevel,the benefit analysis mainly includes the interests of the society and the enterprise and the reemployment labor benefits of the retired staff.We will conduct comparative research on the ownership of service invention systems in various countries so as to draw lessons from them.The third chapter: “The perfection of the vested employee's invention and creation attribution”.Based on the status quo of China's current protection of the resigned personnel inventions,“proposals such as clearly defining the type of contractual agreement,restricting the subject of the separation of employees' service invention,and clarifying the relevant standards for technical characteristics” were proposed.In order to improve the legal system of invention and creation of China's former employees.The conclusion is a brief summary of this article.