专利法的若干问题及其立法建议

Particular Aspects of Problems and Legislative Suggestions about Patent Law

专利法的两次修正使我国专利保护水平在整体上得到了历史性提升。但是 ,某些具体规则的内容尚有值得探讨之处。专利法与合同法对合作发明创造的权利归属规则应协调一致 ;专利申请权与申请专利的权利性质不同 ,转让程序也不同 ,两者不能混淆 ;外观设计专利授权条件中的美感应改为装饰性 。

The two amendments to the PRC Patent Law have enhanced the overall patent protention in China to a level higher than ever in history. Yet, despite the achievements, a couple of specific provisions herein are still open to question. The attribution of the rights to cooperative invention-creations provided respectively in Patent Law and Contract Law are not inconsistent; The terms “patent application right” and “right to apply for patent” must not be confused as they differ in nature and the procedure of assignment; To reveal the essential characteristics of designs, “aesthetic feeling” used in the criteria for granting patent for design should be changed to ornamentality.