How to strengthen the reward protection for job inventors?

How to strengthen the reward protection for job inventors?

The State Intellectual Property Office recently issued the Measures on Regulating Patent Applications. The relevant announcement issued by the Bureau stated that the measures are to comprehensively improve the quality of patents, ensure the realization of the patent law, encourage the legislative purpose of real innovation activities, and abide by the principle of good faith[1].

In the past, the State Intellectual Property Office has taken a series of measures to promote the quality of patents, such as the State Intellectual Property Office 〔Document No. 1 of 2021, "Notice of the State Intellectual Property Office on Further Strictly Regulating Patent Application Behavior", stipulates many detailed measures. In this article, the State Intellectual Property Office even made up its mind to stipulate that "subsidies at all levels of patent application stage shall be completely canceled before the end of June 2021. ...... All localities shall gradually reduce all kinds of financial subsidies for patent authorization and cancel them before 2025"[2]. In addition, the former State Intellectual Property Office No.Several Provisions on Regulating the Conduct of Patent Applications as Amended by Bureau Order No. 75[3].In 2016, the State Intellectual Property Office also issued the "Patent Quality Improvement Project Implementation Plan", starting from creation, application, agency, review, protection, and application to comprehensively improve patent quality[4].

Although the above-mentioned series of documents with the "Patent Quality Improvement Project Implementation Plan" as the core provide a large number of measures to promote patent quality, the author believes thatOnly the lack of protection of the rights and interests of the inventor measures.The author believes that effectively protecting the interests of inventors can not only stimulate the creative enthusiasm of inventors, but also effectively reduce abnormal applications, false transfers and other phenomena, and help improve the quality of patent applications and patent rights.In terms of protecting the rights and interests of inventors, the most urgent task is to strengthen the right to reward and reward the inventors of service inventions and creations, and to give the inventors the right to choose; to strengthen the right of priority transfer of the inventors of service inventions and creations, and to guarantee the right of priority transfer with administrative measures.

1. strengthen the right to reward the inventor of a service invention and give the inventor the right to choose.

About to beThe newly amended Patent Law, which came into effect on June 1, 2021, provides that:The State encourages units that have been granted patent rights to implement property rights incentives, and to adopt equity, options, dividends, etc., so that inventors or designers can reasonably share the benefits of innovation.It is good for legislators to make inventors or designers reasonably share the benefits of innovation, but it is a question mark whether such measures can ultimately benefit inventors.

In fact, some units have been circumventing any reward for the inventor. The reason why the unit avoids rewarding the inventor includes that the unit and the inventor conspire to make false inventions, in which case the unit will of course avoid rewarding the inventor.

There are also inventors who have actually made competitive inventions and creations, and the implementation of related patents has also produced economic benefits, but the unit just does not give rewards. Because these units abandon the idea of using up the inventor, if the inventor leaves the company, the unit can also recruit younger and more energetic technicians.

This kind of unit that wants to circumvent the reward of inventors does not wait for the implementation of the provisions of the patent law to implement property rights incentives. It has long used the dominant position of the employing unit to sign various so-called reward contracts with inventors that do not have any practical benefits, or has promulgated unreasonable reward rules and regulations, and has given priority to such contracts or rules and regulations in accordance with the law. The author has seen a unit price increase of more than five thousand times to sell options to the inventor's contract, the inventor really buy such options, not to get a reward, but in the delivery of money to the unit. The intellectual property management personnel of the unit also tried their best to promulgate the rules and regulations of rewarding remuneration with false names instead of real profits, that is, to give inventors various titles (but the salary, the relationship between superiors and subordinates, and the content of their work remain unchanged) as rewards. It is strange that a city court inThe Guidelines for the Trial of Disputes over Awards and Remuneration for Inventors or Designers of Job Inventions, issued in 2013, support the use of job enhancement as a reward for patent awards.

The author suggests,Change the current practice of giving priority to the agreement between the unit and the inventor in the reward of the inventor, and give the inventor the right to choose, that is, whether to choose the agreed preference or the statutory preference, so as to strengthen the right to reward the inventor of the service invention.When the inventor has the right to choose, the false invention will be reduced accordingly, because the patent reward will become the inevitable cost, and the unit will have scruples when making fraud. Giving the inventor the right to choose can really guarantee the inventor to share the innovation income reasonably, can really form a good innovation ecology, encourage invention and creation, and achieve the legislative purpose of patent law.

In addition,Strengthen the right of patent reward., but also to break some of the rules that make the inventor reward pay fail.,As a city court inThe "Guidelines for the Trial of Rewards and Remuneration Disputes for Inventors or Designers of Service Inventions" issued in 2013 stipulates that for entrusted development, "when it is agreed that the right to apply for a patent belongs to the entrusting party, the entrusting party shall have the right to apply for a patent. After the patent is authorized, the trustee does not involve the reward and remuneration payment of the service invention creation because it does not enjoy the patent right; although the entrusting party enjoys the patent right, the inventor and designer are not the employees of the entrusting party, so it does not involve the payment of the reward of the service invention creation". This kind of regulation makes a considerable number of inventors do not get patent reward compensation. In fact, this kind of regulation also guides the unit how to legally avoid patent reward compensation.

2. strengthen the priority right of the inventor of a service invention, and use administrative measures to guarantee the priority right of transfer.

Article 847 of the the People's Republic of China Civil Code states:...... When a legal person or an unincorporated organization concludes a technology contract to transfer a job-related technical achievement, the person who completes the job-related technical achievement shall have the right to give priority to the transfer under the same conditions. This is to inherit the provisions of the original "the People's Republic of China Contract Law", which establishes the right of priority transfer for the completers of job technological achievements, including the inventors of job inventions.

But it is a pity that the State Intellectual Property Office does not seem to guarantee the priority of the inventor of the service invention. At present, when the patentee submits documents for patent transfer, it is not necessary to submit proof that the inventor knows and agrees to waive the right of priority transfer. Some people may think that it is not appropriate for the administrative authorities to interfere in this matter, and the inventor's right of priority can be sued in court for infringement. However, by analogy with the preferential transfer rights of shareholders of a limited company established by the Company Law, the industrial and commercial registration department is strictly protected, and it is impossible to handle the transfer of shares to persons other than shareholders in the industrial and commercial registration department without the consent of other shareholders to waive the preferential transfer rights. It is regrettable that the state attaches importance to the protection of the property rights of investors, but does not attach importance to the protection of the rights and interests of inventors.

Because the State Intellectual Property Office currently does not guarantee the priority of the inventor of a service invention, it does not publicize that the inventor has this right. This results in the inventor not being aware of the right.On March 22, 2021, the author searched for a total of 28 documents under the online civil case, intellectual property and competition dispute case, using the right of priority transfer as the key word. However, it is regrettable that the number of instruments on the priority of the inventor of a service invention under close examination is 0. With this result, is the inventor's right of priority transfer fully guaranteed? The author thinks it is quite the opposite, but the majority of inventors do not know that they have this right, so there is no dispute. There are several documents in the search results that relate to the labor contract stipulating that the employer has priority over the inventor's non-job achievements [5], which seems to indicate that the inventor's priority has disappeared in reality, but instead has become the employer's priority over non-job inventions.

It is also because of the simple procedures for the transfer of patent rights, in order to obtain the corresponding national policy support for the false transfer and no cost, there is no need to worry about the inventor to claim the right of priority transfer, so there will be a false transfer, or even the price.False transfer of $0. If the inventor's right of priority transfer is implemented, does the employer dare to transfer patents and patent applications falsely with 0 yuan?

The author suggests that the State Intellectual Property Office amend the review guidelines, stipulating that the documents of the patent transfer procedures must include the documents in which the inventor is aware of the transfer conditions and agrees to waive the right of priority transfer.

In addition, the industry many years ago called for the establishment of patents, patent applications to implement the license of the inventor's priority transfer rights. SuchIn 2007, Chen Zhen called for the article "Research on the Protection of the Rights and Interests of Job Inventors in Technology Licensing-An Analysis of the Priority Transfer Right of Job Inventors": It is necessary for China to clarify that the completion of job scientific and technological achievements has the priority transfer right of technology licensing, which can not only prevent units from using technology licensing to evade the priority transfer right of job inventors, but also make up for the deficiency of rights and interests protection in the technology licensing of job inventors in China [6]. However, many years have passed and the Civil Code has been promulgated, and the provisions on the right of priority transfer of technology licensing for service inventors are still missing.

The author hereby calls for the establishment of the right of priority transfer of technology license for job inventors, and stipulates that when the State Intellectual Property Office registers patents and applies for licensing, whether the documents for examination and filing procedures include documents in which the inventor knows the licensing conditions and agrees to waive the right of priority transfer.

To sum up, the author fully agrees with the State Intellectual Property Office's practice of treating patent quality improvement as a systematic project and solving patent quality problems from a systematic point of view. The author also believes that there should be a place for inventors in this system. Ignoring the rights and interests of inventors to talk about the improvement of patent quality is tantamount to hoping that horses will run but not eat grass, which is unrealistic. Although the country has various incentives for innovation in recent years, the author believes that these measures focus on encouraging innovative investors, and the incentives for inventors depend on whether investors are willing or not. The author believes that if this phenomenon continues, it will damage China's innovation ability. Because in today's globalization of human resources, high-end scientific and technological talents will choose a market environment friendly to themselves.In order to comprehensively improve the quality of patents and ensure the realization of the legislative purpose of the patent law to encourage real innovation activities, our country should make up for the shortcomings of the protection of the rights and interests of inventors.

OriginalHuang HuiIntellectual property that thing