试论我国职务与非职务发明专利权的权属界定及其完善

On the Definition of Patent Right of Service and Non-service Inventions and Its Improvement

我国现行《专利法》对职务与非职务发明创造的界定不清及专利权统归单位所有的制度设计存在诸多缺陷与不足,一定程度上偏离了保护专利权人的合法利益、鼓励发明创造的立法宗旨。分析对比国内外有关职务发明创造专利权权利归属的相关立法,建立发明人优先、当事人意思自治优先的专利权权利归属制度,明晰和简化构成职务发明的要件理应成为我国专利法律制度的完善路径。

The existing Patent Law in China has many defects and limitations in the definition of patent right of service and non-service inventions as well as the system of patent belonging to the unit,to some extent deviating from the legislative purpose of protecting the legal interests of patentees and encouraging inventions and creations.Therefore,measures must be taken to perfect patent legal system by analyzing and comparing the relevant laws both at home and abroad about the right adscription of service inventions,establishing right adscription system of patent right which gives priority to the inventors and priority of party autonomy to the concerning parties,as well as clarifying and simplifying the elements constituting service inventions.