In December 2015, the Legislative Affairs Office of the State Council released the "Draft of Patent Law Revisions (Draft for Review)" to publicly solicit public opinions. Among them, the modification of the relevant provisions of service inventions has attracted widespread attention and controversy from all walks of life. Since its introduction in 1984, my country's service invention system has been continuously improved with social and economic development and successive revisions of the patent law. However, social disputes and doubts are still large. At the same time, the relevant provisions of the current patent law on service inventions also have many problems in judicial practice. problems and difficulties. This revision of relevant provisions of the Patent Law regarding service inventions mainly focuses on Articles 6, 16, 72 and 78. This article mainly analyzes and discusses the determination of service inventions and the ownership of rights. 1 Shortcomings of the current patent law on the service invention system 1.1 The emphasis on “unit priority” from the legislative guiding ideology is not in line with the principles of fairness and equality in civil law, and is not conducive to the transformation of scientific and technological achievements and incentives for inventors to innovate. A kind of labor relationship. On the basis of the labor relationship, the inventor carries out relevant invention and creation activities according to the task arrangement of the unit. The invention and creation are formed in the job work. The invention results reflect the will of the unit and are classified as service inventions and creations. When inventors carry out service invention-creation activities, they will inevitably rely on the existing material and technical conditions of the unit, but it cannot be conversely said that inventions and creations completed by using the unit's material and technical conditions must be service-invention-creations. At the same time, Article 6 unilaterally emphasizes the important role of external conditions in invention and creation activities, while ignoring the core role of talents in creative activities. Inventions and creations completed by the inventor using the material and technical conditions of the unit when he is not performing the tasks of the unit are first based on the inventor's own thoughts and creativity, and reflect the will of the inventor rather than the will of the unit. According to the current patent law, the invention The right to apply for a patent is often owned by the unit, and the unit directly obtains the fruits of the inventor's labor outside of his or her work, which obviously violates the principle of fairness and greatly reduces the inventor's enthusiasm for creation and enthusiasm for innovation. 1.2 The definition of "main utilization" in the material and technical conditions of the unit is vague, and it is difficult to quantify and provide evidence, which often leads to judgments that are unfavorable to the inventor or designer in judicial practice. Article 6 of the Patent Law stipulates that the main use of the material and technical conditions of the unit is completed. The invention-creation is a service invention-creation, among which the "main utilization" has always been controversial, and the definition of "main utilization" and "non-main utilization" has not been finalized by all sectors of society. In judicial practice, the determination of "main utilization" and "non-main utilization" is often highly subjective, and there are certain difficulties in producing relevant evidence, resulting in varying degrees of inappropriate expansion of the scope of "main utilization". situation. In cases involving disputes over ownership of service inventions, after excluding "invention and creation activities carried out in the performance of the tasks of the unit", most local courts did not strictly distinguish between "main utilization" and "non-main utilization" stipulated in the patent law, and only passed The evidence submitted by both parties determined that the inventor took advantage of the company's material and technical conditions in the creation process, and the invention involved was very likely to be judged as a service invention. 2. Comparative analysis of determination of service inventions and ownership of rights in major countries. Due to the large differences in political, economic, cultural development and legal systems between countries, the development and evolution of intellectual property systems are also different. The standards and rights for determination of service inventions in various countries are also different. The provisions of attribution are also different. Now we will analyze and study the specific legislation of the service invention system in several major countries. 2.1 United States_ Section 111 of the United States Patent Law (Title 35 of the United States Code) stipulates that, unless otherwise provided in that title, an application for a patent shall be submitted in writing by the inventor to the Director of the Patent and Trademark Office. According to this regulation, in the United States, whether it is a service invention or a non-service invention, only the inventor can file a patent application, and the original right holder of the invention patent is also the inventor. The Employer may have the right to implement or have the right of first refusal to elect an exclusive license to use any such invention in the pre-agreed areas under the Agreement. At the same time, the U.S. government encourages employees and employers to negotiate the distribution of various rights and interests of inventions and creations through agreements, and encourages scientific researchers to use the employer’s equipment and resources to conduct scientific research and inventions and creations. 2.2 Japan The legislation on service inventions in Japan’s patent law is mainly concentrated in Article 35. Regarding the determination of service inventions, Japan has a narrower scope than my country. It emphasizes that two aspects are indispensable, one is within the scope of business, and the other is an invention that performs current or past duties.

Regarding the ownership of rights for service inventions, Article 35(1) of the Patent Law stipulates that the right to apply for a patent and the patent right belong to the inventor, but the employer “has the usual right to implement the patent right.” This is consistent with the ownership of original rights in service inventions in the United States. At the same time, Article 35, paragraph 3, stipulates that the right to apply for a patent, patent right and exclusive implementation right of a service invention can be transferred from the employee to the employer through agreement, but the employer must pay a reasonable consideration for this. This is very different from the current provisions of my country's patent law. In my country, the right to apply for and patent rights for service-based inventions legally belong to the employer, and there is no way that the ownership of rights for service-based inventions can be switched between employees and employers. 2.3 United Kingdom Article 39(1) of the British Patent Law delimits the scope of service inventions. This is similar to the criteria for determining “inventions and creations completed by performing the tasks of the unit” in my country’s patent law. This article also stipulates that the rights of service inventions belong to the employer, which is consistent with my country's regulations on the right to apply for patents for service inventions and the patent rights belonging to the unit. The determination and ownership of rights for service inventions in the UK also reflect the “unit priority” principle. Articles 40 and 41 of the British Patent Law also stipulate that for service inventions, employees have the right to receive reasonable remuneration. For non-service inventions where the patent rights are transferred to the employer through an agreement, if the employee believes that the "benefits obtained are incompatible with the employer" If the benefits obtained from this patent are not sufficient, the employer should provide additional compensation to the employee. 2.4 Germany Germany has established an invention declaration system regarding the ownership of rights for service inventions. After an employee completes a service invention, he or she is obliged to immediately report the invention to his or her employer with a special written notice. After receiving the declaration report, the employer may claim rights to the service invention, or waive the rights to the service invention to the employee within 4 months from the date of receipt of the report. The employer obtains all rights to the service invention by asserting a declaration of rights and is obliged to apply for domestic industrial property protection for the service invention declared to it. Under the service invention declaration system, the original rights to service inventions belong to employees. Through invention declaration, employers can declare their rights to the invention, or they can relinquish their service invention rights to employees and become "free inventions." 3 Analysis of the revision of the provisions on service inventions in the "Patent Law Revision Draft" First, the modification of this article changes the "unit priority" principle in the current patent law to "agreement priority", which reflects the balance of rights and interests between the unit and the inventor. progress. The first is a civil legal relationship between the unit and the inventor, which must abide by the principles of equality, voluntariness, and fairness. For inventions and creations completed using the unit's material and technical conditions, the unit and the inventor shall be given greater freedom in terms of ownership of rights and shall also be fully Affirm and respect "people are the most critical factor in scientific and technological innovation." The second is to no longer distinguish between “main utilization” and other situations regarding the different ownership of invention-creation rights, overcome the possible contradiction between the first and third paragraphs of the current Article 6, and eliminate the inconsistencies in the third paragraph in practice. There are different understandings of whether "utilization" includes "main utilization", and it is stipulated that in the absence of an agreement, the patent application rights for inventions and creations that utilize the material and technical conditions of the unit belong to the inventor. This not only solves the problem between the aforementioned inventors and Units rarely engage in pre-agreed issues, which reduces the possibility of disputes to a certain extent, more fully reflects the legal protection of individuals, and also reflects the respect for innovative workers, which plays a role in promoting scientific and technological innovation and social progress. . Third, it is conducive to gradually increasing the proportion of non-service inventions to a reasonable level. Some scholars believe that Article 6 of the revised draft of the Patent Law clearly tends and focuses on guiding non-service inventions and creations, which is contrary to my country's current principle of tending and focusing on guiding service inventions and creations. It is recommended that the main use of the unit's materials The invention-creation completed by the technical conditions is a service invention-creation, but the inventor may contract to treat it as a non-service invention-creation or own it. According to the annual report of the State Intellectual Property Office, between 2012 and 2016, among the domestic invention patent authorizations, the proportion of service inventions increased year by year from 87.5%, reaching 91.4% in 2016, while the proportion of non-service inventions increased from 12.5% ??in 2012. dropped to 8.6% in 2016. The above data shows that the proportion of non-service inventions under the current patent law is still very low, and the current national policy orientation is to encourage innovation by all, encourage and actively provide a complete legal system and policy environment for talent innovation, and mobilize people's subjective initiative to the greatest extent , to stimulate the innovation enthusiasm of the whole society to the greatest extent.

The fourth is to provide legal protection to promote the transfer and transformation of achievements. For service inventions that have the right to apply for a patent or are owned by the unit to which the patent right belongs, not every invention can be implemented and used in practice. For universities or scientific research institutions, the number of patents is often linked to academic evaluation, scientific research funding applications, etc. The implementation rate and transfer conversion rate of service invention patents are very low. The "Patent Law Revision Draft" addresses the above issues for research institutions and research institutions. Colleges and universities have separate regulations on the implementation of service inventions. If the patent is not implemented within a reasonable period, the inventor can negotiate with the unit to implement it on his own. 4 Conclusion To sum up, the "Patent Law Revision Draft" does not clearly stipulate the implementation of service inventions by enterprises. For an enterprise, the application for a certain patent is sometimes a supplement to its core patent to protect its core patent family. If the patent cannot be implemented or transferred, the inventor will naturally not be able to obtain corresponding rights and interests from it, and the job title The right to implement and license the invention belongs to the unit, and the inventor cannot implement it himself or allow others to implement it. In addition, companies often adjust the disposal of invention patents based on the company's internal intellectual property strategy. For example, no longer renewing the patent, causing the patent right to become invalid and then disclosed, etc. This is undoubtedly disadvantageous to the inventor. In view of this, it is recommended that the patent law or implementation rules stipulate that the enterprise's rights to service inventions can be transferred to the inventor free of charge, so that the service inventions and creations can be better implemented, and the inventor can truly realize the true value through self-implementation, technological improvement or patent transactions. Converting the value of knowledge into wealth not only protects the rights and interests of inventors, but also activates the vitality of a large number of service invention patents and the innovative vitality of the entire society.