职务发明创造的专利申请权及专利权辨析

现行《专利法》对职务发明的规定有不合理之处,如第六条第一款"主要是利用本单位的物质技术条件所完成的发明创造为职务发明创造"与本条第三款"利用本单位的物质技术条件所完成的发明创造,单位与发明人或设计人订有合同,对申请专利的权利和专利权的归属作出约定的,从其约定",在法律适用方面容易产生歧义;又如将"主要是利用本单位的物质技术条件所完成的发明创造"界定为职务发明,本身就不具合理性。因此笔者建议在第三次修订专利法之时,重新界定职务发明创造的专利申请权及专利权,平衡单位与发明人或设计人之间的利益。

Analysis of the right of patent application and patent right in service inventions-creations

In the current Patent Law,there is something unreasonable about the regulations of service invention.For example,"Article 6: An invention-creation,made by a person in execution of the tasks of the entity to which he belongs,or made by him mainly by using the material and technical means of the entity is a service invention-creation";"In respect of an invention-creation made by a person using the material and technical means of an entity to which he belongs,where the entity and the inventor or creator have entered into a contract in which the right to apply for and own a patent is provided form such a provision shall apply",those are easy to produce ambiguity in law enforcement.On the other hand,it is actually unreasonable to define "an invention-creation made by a person mainly by using the material and technical means of the entity to which he belongs" as a service invention.Therefore,it is proposed that in the third revised patent law,the right of patent application and patent right in service inventions-creations must be re-defined to balance the benefits between the entity and the inventor or creator.