A Study of Patent on Service Invention——Question about Article 6 of Patent Law

A service invention is made by an employee in performing his or her duty and under the sponsorship of the entity he or she is working with. Such invention creation involves two kinds of legal relationship, i.e., labor contract relationship and service invention relationship between the employee and his or her entity. Such service invention relationship is established on the basis of the labor contract relationship and in performing his or her duty to his or her entity. However, his or her invention can be the results using the material and/or technological means of his or her entity but independent of his or her service and his or her labor contract but representing his or her own will. In this respect, the right to apply for the patent of this invention and the patent shall be owned by the inventor or designer himself or herself. Article 6 of Patent Law in force violates the equitable principle in respect to the rights between the two civil subjects. It will be hard for Article 6 to be effective and the objective of the Patent Law to be realized. This text is a proposal of legislative amendment to this part of the Patent Law after a study of the Patent Law in comparison with relevant foreign laws.