职务发明性质之约定和职务发明报酬及奖励——我国专利法第四次修订中有关职务发明若干问题的讨论

Agreement on the Nature of Employee Invention and Remuneration and Award for Employee Invention: Discussion on Several Issues Concerning Employee Invention as Ref lected in the 4th Revision of the Patent Law

本文对我国专利法第四次修订中"职务发明性质的界分及约定"与"职务发明创造的报酬与奖励"两个关键问题的立法安排提出了独立见解。认为立法应规定主要利用本单位物质技术条件所完成的发明创造为职务发明创造,但可通过合同约定其为非职务发明创造或者共有。职务发明创造奖酬立法应当遵循约定优先及重酬轻奖的基本原则,职务发明报酬标准不宜过高或者过低,应采用"上不封顶,下要保底"的模式,其保底下限应设定为不低于20%为佳。

The article discusses the legislation on two key issues concerning employee invention, namely ＂agreement on the nature of employee invention＂ and ＂remuneration and award for employee invention＂. Both issues are arisen in the process of the 4th revision of the Patent Law. The article holds that legislation should clearly stipulate that invention accomplished mainly by using the material and technological means owned by the employer should be defined as employee invention; however, both parties can also designate the invention as non-employee invention or joint invention through agreement. The basic principles for legislating remuneration and award for employee invention should give priority to agreement, and should give more emphasis to remuneration rather than award. The remuneration standard should be properly set, neither too high nor too low. There should be no ceiling for the amount of remuneration; however the minimum guarantee should be maintained at no less than 20%.