A Study of Patent on Service Invention——Question about Article 6 of Patent Law
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摘要: 职务发明创造是受雇人在履行其职务时产生的体现单位意志的智力活动成果,包含劳动关系和职务发明创造关系两个法律关系。职务发明创造关系的产生以劳动关系为基础,以履行职务义务为条件。受雇人利用本单位的物质技术条件,但不受劳动关系的约束,独立于职务义务之外所完成的发明创造成果,申请专利的权利和专利权属于发明人或设计人本人。现行专利法第六条违背了民事主体之间的公平原则,不利于实现专利法的立法目的。本文在比较研究的基础上提出了对其加以完善的立法建议。Abstract: 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.
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Key words:
- service invention /
- patent /
- patent Law
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