A Study On The Allocation Of Patent Ownership Of "Utilizing The Material And Technical Conditions Of The Entity"

Under the background of the implementation of national innovation driven development strategy,it has become the main form of scientific and technological innovation to carry out R & D activities with the material and technical conditions of the unit.In the patent law of China,the "utilization of the material and technical conditions of the unit" is divided into "major utilization" and "non major utilization" according to the utilization degree,and different rules of ownership allocation are applied respectively.Among them,the invention and creation that have reached the level of "major utilization" are identified as service invention,and its ownership belongs to the unit.This allocation of patent rights is not in line with Locke's labor property rights theory in theory,but also with the legislators' requirements for the original patentee;in practice,it causes the imbalance between the interests of inventors and units,and does not meet the development needs of the current scientific and technological production;in the judicial process,the subjectivity and fuzziness of the "main" judgment criteria lead to the phenomenon of different judgments in the same case.Therefore,the current patent right allocation rules of "using the material and technical conditions of the unit" are not conducive to the effective protection of the legitimate rights and interests of relevant subjects,affect the enthusiasm of inventors and units for "using the material and technical conditions of the unit for invention and creation",and are not conducive to the development and progress of science and technology in China.The essence of the former is that the inventor,based on his own will,makes use of the material and technical data of the unit for independent innovation.The unit neither assigns tasks,nor actively provides materials and technical data,nor can it supervise and manage this research and development behavior.Therefore,we should learn from the relevant experience of the patent system of the United Kingdom,Japan,Germany and the United States,and try to reconstruct the diversified mode of patent ownership distribution of "using the material and technical conditions of our own unit".Break through the current classification standard of utilization degree in China and unify the patent right allocation rules applicable to "utilizing the material and technical conditions of the unit".On the basis of the original priority of autonomy of will,the rules of addition are introduced to recognize the main contribution of the inventor in the invention created by "using the material and technical conditions of the unit".The inventor is the patent applicant who files apatent application for such invention creation.After being authorized,the inventor is the patentee of such patent.At the same time,based on the compensation mechanism of the rules of accession,the entity providing the material and technical conditions is granted the right of free implementation of the patent.This kind of system design has realized the diversified development direction of the unit and inventor's patent ownership allocation.Both sides can flexibly allocate rights according to the actual situation of their industries,give full consideration to stimulating the creative power of each subject,improve the efficiency of invention,promote the transformation and implementation of the patent "using the material and technical conditions of the unit",take into account the unity of risk and income,make funds and talents flow more smoothly to valuable fields,and meet the strategic requirements of sustainable development Seek the goal of building an innovative society.