职务发明创造及专利权归属探析

Study of the Service Invention-Creation and Ownership of Patent Right

职务发明创造的完成主体是职务发明人。它是发明人执行本单位的任务完成的发明创造，体现了单位与发明人两方面的意志。我国现行《专利法》以“主要利用本单位的物质条件”作为职务发明创造的判定标准不合理：把职务发明创造的专利申请权及专利权只赋予单位所有的规定也不符合公平原则。笔者认为，对于职工“主要利用本单位的物质条件”非单位交付任务完成的发明创造，一般应确认为是非职务发明创造；而对于职工“执行本单位的任务”完成的职务发明创造，应确认其专利权归单位和发明人共有。

It is the inventor who belongs to an entity that makes the service invention-creation. The service invention-creation is one that made by inventor in execution of the tasks of entity to which he belongs, which embody the will of both the entity and the inventor. The judgement standard about service invention-creation——mainly by using the material means of the entity, which stipulated in our present Patent Law of the State, is not reasonable. It doesn't conform the law principle of equity that the right to apply for a patent and the patent right of the service invention-creation is only granted to the entity. Author think, the invention-creation should be confirmed to be the non-service invention-creation generally, which made by the inventor mainly by using the material means of the entity to which he belongs, in the meanwhile it isn't made in execution of the tasks of the entity; the patent right of the service invention-creation made by the inventor in execution of the tasks of the entity to which he belongs, should be confirmed to be owned by both the entity and the inventor.