離職員工職務發明認定中相關性的判斷

Judgment on Determination of Relevance of Service Inventions Made by Departed

《專利法實施細则》第十二條通追“一年内”和“有”的限定,内在承载了原罩位、離工舆新罩位之間的利益平衡,保障工自由流動的同时,有效避免了離工離俊立即與原罩位展創新競争,碓保了原罩位具有一定的技術领先期,也不會使新罩位利益受到不合理害。判断是否具有相性時,應当遵循技術领域相的標淮,即離工完成的發明創造的技術主题是否於離工在原罩位徙事的具體工作内容或分配任務所技術领域相同或相近。然其他人對於務發明亦有貢献,但不應影藏务發明專利槿的歸,共有模式不利於充分發掸專利的效用以及保護無错当事人的利益。其他人的貢獻献可以通報酬、補等方式予以保障。

Rule 12 of the Implementing Regulations of the Patent Law,by means of the"within one year"and"relevance"requirements,inherently takes on the role of balancing the interests between the previous entity,the departed employee,and the new entity.While safeguarding the free movement of employees,the provision also effectively prevents the departed employee from engaging in competition of innovations with the previous entity immediately after his departure,as well as protecting the interests of the new entity from unreasonable impairment,thus embodying on the whole the ethical justice ofgiving priority to efficiency with due consideration to fairness",When judging whether the invention made by a departed employee is related to his normal duties or assigned tasks at the previous entity,the standard of relevance of technical fields should be followed,that is,whether the technical subject of the invention made by the departed employee falls within the same or similar technical field that his specific job responsibilities or assigned tasks at the previous entity pertain to.Although other personnel also contribute to the service invention,it should not affect the ownership of service invention patent.The co-ownership model is not conducive to giving full play to the utility of patent right or protecting the interests of the no-fault party.The contributions of other personnel may be guaranteed by means of rewards,compensation,etc.