契约自由导向下的职务发明权属制度重构

Reconstruction of Service Invention Ownership System Under the Guidance of Freedom of Contract

有组织的发明创造是现代发明专利的主要方式,职务发明制度主要解决组织与个人之间的权利归属。我国《专利法》规定职务发明归单位,体现了计划经济体制下"保护集体利益"的立法指导思想,本质上是立法者代替单位和个人进行了权利分配。在世界主要国家,职务发明权利归属主要尊重当事人的约定,法律强制性规定是例外。实际上,在市场经济条件下,只有单位和个人自身能够理性判断各自对特定发明的贡献,进而基于贡献约定权利的分配。据此,我国职务发明权应该以契约自由为导向,赋予职务发明相关主体对权利归属的判断权,确立以意定主义为主的立法模式,充分彰显专利的私权属性。

Since organized invention has become the main features of modern invention,patent service invention mechanisim resloves ownership between individuals and the entities. Chinese patent law provides that for a service invention-creation,the right to apply for a patent belongs to the entity. This provision reflects the thought of＂protection of collective interests＂and rights are divided by legislators into individuals and the entities essentially. After analysis of the existing system,we found that respects to arrangements between parties appears to be the main criterion of ownership of service invention while mandatory requirements in law are exceptions in main nations＇ legislature all over the world. Actually under market economic condition,only individuals and the entities can judge contributions to a particular invention and allocate the rights accordingly. So our service invention mechanisim should take the freedom of contract as orientation,give relevant subjects rights to judge ownership,establish legislation model based on the doctrine of autonomism to manifest the private features of patent thoroughly.