论按份共有规则在职务发明制度中的确立

Research on the Application of Co-ownership by Shares in Employee Invention

近年来"职务发明成果转化难"成为我国迈向知识产权强国的一大障碍。究其原因,我国的职务发明权属制度倾向"厚雇主主义",忽视了发明人的主观能动性,没有充分激发单位和发明人的创新积极性、有效发挥相互之间的协同作用。面对职务发明成果转化前期脱离市场导向、中期乏力、后期保护"消失"的困境,现有职务发明制度亟待按份共有规则的适用。具体而言,在遵循约定优先原则基础上,坚持以"对发明创造的实质性特点做出创造性贡献的程度"为考量原则,对职务发明创造归属进行区分,以"贡献程度"或"贡献率"来划分发明创造权益,实现生产要素按贡献决定分配。

In recent years, the difficulty of achievements transformation in employee inventions has become a major obstacle for China to become a powerful intellectual property country. The reason is that employee invention system in China tends to protect the interest of employer, while ignore inventor＇s subjective initiative and does not fully stim- ulate the innovation enthusiasm of the entity and the inventor, nor effectively play a synergetic role between entity and individual. Achievements transformation in employee inventions faces the dilemma of deviating fl＇om the market orientation in the early stage, lacking of power in the middle stage, and lacking of guarantee in the later stage. The existing system of employee invention needs to introduce the rule of co-ownership by shares urgently. Specifically speaking, based on the principle of ＂agreement priority＂, ＂the degree of creative contribution to the substantive char- acteristics of inventions＂ should be regarded as the criteria to distinguish the attribution of employee inventions. ＂The degree of contribution＂ or＂the contribution rate＂ should be used to divide the rights and interests of inventions, thus achieve the goal of contribution deciding the.distribution of production factors.