專利權(quán)歸屬研究
發(fā)布時(shí)間：2018-11-26 14:04
【摘要】：隨著市場(chǎng)經(jīng)濟(jì)的發(fā)展以及知識(shí)經(jīng)濟(jì)的不斷深化,專利權(quán)問(wèn)題逐步映入大眾的視野,在專利權(quán)歸屬上也出現(xiàn)了眾多的研究著述,并且在研究中針對(duì)具體的實(shí)踐問(wèn)題有定的指引作用,在加入世貿(mào)組織后,我們面臨的最大問(wèn)題就是知識(shí)產(chǎn)權(quán)方面的保護(hù)。因?yàn)榻┠陙?lái),我國(guó)頻繁面臨知識(shí)產(chǎn)權(quán)方面的糾紛,因而,需要我國(guó)去重視知識(shí)產(chǎn)權(quán)方面的保護(hù)。專利權(quán)和著作權(quán)、商標(biāo)權(quán)屬于我們所談的狹義知識(shí)產(chǎn)權(quán)。在知識(shí)產(chǎn)權(quán)構(gòu)成中,專利權(quán)是地域性最強(qiáng)的,也是最容易引發(fā)糾紛的權(quán)利。從當(dāng)前國(guó)內(nèi)外研究來(lái)看,國(guó)內(nèi)對(duì)于專利權(quán)研究還是有欠缺的,尤其是專利權(quán)歸屬方面的研究不夠深入和具體。 另外,隨著經(jīng)濟(jì)的發(fā)展,很多新型技術(shù)的出現(xiàn),專利權(quán)歸屬法律法規(guī)已經(jīng)呈現(xiàn)出其的滯后性,因此,對(duì)于專利權(quán)歸屬研究是必要的,只有對(duì)專利權(quán)歸屬做出充分的研究,將一些易產(chǎn)生糾紛的方面進(jìn)行明確,從而減少糾紛的出現(xiàn),體現(xiàn)出法律對(duì)于知識(shí)產(chǎn)權(quán)的重視以及對(duì)經(jīng)濟(jì)發(fā)展的推動(dòng)力。 本文對(duì)專利權(quán)的屬性與特點(diǎn)作簡(jiǎn)要敘述,對(duì)英美法系、大陸法系對(duì)知識(shí)產(chǎn)權(quán)歸屬的立法及司法進(jìn)行了研究,并依據(jù)專利權(quán)的這些基本屬性與特點(diǎn),將兩大法系的專利權(quán)歸屬理念及特點(diǎn)與我國(guó)的專利權(quán)歸屬進(jìn)行了比較分析。以美國(guó)為代表的英美法系經(jīng)歷了從發(fā)明創(chuàng)造者為傾向逐步增加企業(yè)傾向的過(guò)程,在19世紀(jì)末的判例中,法院認(rèn)可了公司在雇傭合同中要求員工將發(fā)明所有權(quán)轉(zhuǎn)讓給企業(yè)的要求,但仍然保留著對(duì)職務(wù)發(fā)明的嚴(yán)格控制。以德國(guó)、日本為代表的大陸法系秉持著“雇員主義”、“天然屬于發(fā)明人”的原則精神,即職務(wù)發(fā)明的原始權(quán)利屬于雇員；只有在企業(yè)根據(jù)法律規(guī)定提出或無(wú)限權(quán)利主張時(shí),權(quán)利才有可能轉(zhuǎn)歸屬雇主,但是雇主只能在專利實(shí)施權(quán)利和支付獲報(bào)酬之間做出選擇。我國(guó)的專利立法比較晚,吸取了英美法系、大陸法系等發(fā)達(dá)國(guó)家的立法經(jīng)驗(yàn),相對(duì)比較先進(jìn),但是由于我國(guó)國(guó)民與企業(yè)的專利等知識(shí)產(chǎn)權(quán)意識(shí)相對(duì)較弱,形成先進(jìn)立法缺少優(yōu)質(zhì)土壤的狀況,導(dǎo)致執(zhí)法效果不太理想。據(jù)此,筆者提出我國(guó)專利權(quán)歸屬方面存在的一些問(wèn)題,比如專利制度的實(shí)踐指導(dǎo)性不強(qiáng)、對(duì)個(gè)人發(fā)明創(chuàng)造的激勵(lì)性不強(qiáng)、企業(yè)為申請(qǐng)專利而申請(qǐng)專利產(chǎn)生的申請(qǐng)泡沫等,筆者通過(guò)對(duì)發(fā)現(xiàn)問(wèn)題的分析研究,從修改完善《專利法》和《專利法實(shí)施細(xì)則》的部分條款等立法和司法及行政干預(yù)等方面提出自己的看法與建議,并針對(duì)職務(wù)發(fā)明、專利權(quán)共有等表明了觀點(diǎn)。 希望對(duì)專利權(quán)基本歸屬問(wèn)題的法學(xué)與社會(huì)學(xué)的思考,能夠給企業(yè)、社會(huì)以及國(guó)家提升專利管理提供有益的參考借鑒。
[Abstract]:With the development of the market economy and the deepening of the knowledge economy, the patent problem is gradually reflected in the public vision, and there are many research works on the ownership of the patent right. And in the study of specific practical problems have a definite guiding role, after joining the WTO, we are facing the biggest problem is the protection of intellectual property rights. In recent years, our country often faces disputes about intellectual property, therefore, we need to attach importance to the protection of intellectual property. Patent right, copyright, trademark right belong to the narrow-sense intellectual property right that we talk about. In the constitution of intellectual property, patent right is the most regional and the most likely to cause disputes. From the current research at home and abroad, there is still a lack of domestic research on patent rights, especially the research on patent ownership is not deep and specific. In addition, with the development of economy and the emergence of many new technologies, the laws and regulations of patent ownership have shown their lag. Therefore, it is necessary to study the ownership of patent right. In order to reduce the emergence of disputes, the law attaches importance to intellectual property rights and the impetus to economic development. This paper makes a brief description of the attributes and characteristics of patent right, and studies the legislation and judicature of the attribution of intellectual property in common law system and civil law system, and according to these basic attributes and characteristics of patent right, This paper makes a comparative analysis of the concept and characteristics of patent right attribution between the two legal systems and that of our country. The Anglo-American law system represented by the United States experienced the process of gradually increasing the enterprise inclination from the invention creator to the tendency. In the case law of the end of the 19th century, the court confirmed the request of the company to transfer the employee's ownership of the invention to the enterprise in the employment contract. But it still retains strict control over job inventions. The continental law system represented by Germany and Japan upholds the principle of "employee doctrine" and "nature belongs to inventor", that is, the original right of duty invention belongs to employee; It is possible to transfer the rights to the employer only when the enterprise claims under the law or unlimited rights, but the employer can only choose between the right to patent enforcement and the payment of remuneration. China's patent legislation is relatively late, drawing on the legislative experience of developed countries such as the Anglo-American law system and the continental law system, which is relatively advanced, but because of the relatively weak awareness of intellectual property rights such as patents among Chinese nationals and enterprises, The formation of advanced legislation lack of high-quality soil, resulting in law enforcement effect is not ideal. On this basis, the author points out some problems existing in the ownership of patent rights in China, such as the lack of guidance in the practice of the patent system, the lack of incentive to individual inventions and creations, and the application bubble generated by enterprises applying for patents, and so on. Based on the analysis and study of the problems found, the author puts forward his own views and suggestions on the legislative, judicial and administrative intervention from amending and perfecting some articles of the Patent Law and the detailed rules for the implementation of the Patent Law, and aiming at the invention of the position. Patent ownership, etc., expresses an opinion. It is hoped that the legal and sociological thinking on the basic ownership of patent rights can provide a useful reference for enterprises, society and countries to promote patent management.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D923.42
[Abstract]:With the development of the market economy and the deepening of the knowledge economy, the patent problem is gradually reflected in the public vision, and there are many research works on the ownership of the patent right. And in the study of specific practical problems have a definite guiding role, after joining the WTO, we are facing the biggest problem is the protection of intellectual property rights. In recent years, our country often faces disputes about intellectual property, therefore, we need to attach importance to the protection of intellectual property. Patent right, copyright, trademark right belong to the narrow-sense intellectual property right that we talk about. In the constitution of intellectual property, patent right is the most regional and the most likely to cause disputes. From the current research at home and abroad, there is still a lack of domestic research on patent rights, especially the research on patent ownership is not deep and specific. In addition, with the development of economy and the emergence of many new technologies, the laws and regulations of patent ownership have shown their lag. Therefore, it is necessary to study the ownership of patent right. In order to reduce the emergence of disputes, the law attaches importance to intellectual property rights and the impetus to economic development. This paper makes a brief description of the attributes and characteristics of patent right, and studies the legislation and judicature of the attribution of intellectual property in common law system and civil law system, and according to these basic attributes and characteristics of patent right, This paper makes a comparative analysis of the concept and characteristics of patent right attribution between the two legal systems and that of our country. The Anglo-American law system represented by the United States experienced the process of gradually increasing the enterprise inclination from the invention creator to the tendency. In the case law of the end of the 19th century, the court confirmed the request of the company to transfer the employee's ownership of the invention to the enterprise in the employment contract. But it still retains strict control over job inventions. The continental law system represented by Germany and Japan upholds the principle of "employee doctrine" and "nature belongs to inventor", that is, the original right of duty invention belongs to employee; It is possible to transfer the rights to the employer only when the enterprise claims under the law or unlimited rights, but the employer can only choose between the right to patent enforcement and the payment of remuneration. China's patent legislation is relatively late, drawing on the legislative experience of developed countries such as the Anglo-American law system and the continental law system, which is relatively advanced, but because of the relatively weak awareness of intellectual property rights such as patents among Chinese nationals and enterprises, The formation of advanced legislation lack of high-quality soil, resulting in law enforcement effect is not ideal. On this basis, the author points out some problems existing in the ownership of patent rights in China, such as the lack of guidance in the practice of the patent system, the lack of incentive to individual inventions and creations, and the application bubble generated by enterprises applying for patents, and so on. Based on the analysis and study of the problems found, the author puts forward his own views and suggestions on the legislative, judicial and administrative intervention from amending and perfecting some articles of the Patent Law and the detailed rules for the implementation of the Patent Law, and aiming at the invention of the position. Patent ownership, etc., expresses an opinion. It is hoped that the legal and sociological thinking on the basic ownership of patent rights can provide a useful reference for enterprises, society and countries to promote patent management.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D923.42
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