职务发明奖酬制度研究

发布时间：2018-02-26 20:27

本文关键词： 职务发明奖酬奖酬计算基准　出处：《华东政法大学》2014年硕士论文　论文类型：学位论文

【摘要】：现今全球经济增长模式正向知识经济增长模式转变，以职务发明为代表的科学技术创新水平成为决定国家经济增长力和综合竞争力的关键因素。鼓励技术创新成为各国经济发展战略的核心部分，，鼓励职务发明也应当成为企业增强核心竞争力的法宝。然而，我国职务发明申请量较低，企业与发明人或者设计人之间利益纷争不断，发明人或者设计人的“一奖两酬”得不到保障，且无法确定企业因该项职务发明而获得的利润，难以要求企业支付《专利法实施细则》中规定的报酬，这大大的削弱发明人或者设计人的发明创造的积极性；甚至出现人才出走，临近离退休人员将发明留几年之后再申请专利的现象。这不仅削弱了企业的核心竞争力，也桎梏着科学技术的发展。寻求一种完善的职务发明奖酬制度，保持雇主投资积极性和雇员发明积极性，激励双方的智力投资和物质投资变得愈加重要。本文首先指出当前我国职务发明奖酬制度在立法上和实践中存在的问题。从职务发明概念范围的宽泛和界限不清、奖酬支付形式的单一、报酬基准难以确定、规章规定和协商约定的方式下不能平衡双方权益、单位以其他形式使用该职务发明时发明人或者设计人的奖酬得不到保障、而发明人或者设计人要维护自己获酬权成本太高、以及法律未规定单位不支付奖酬的惩罚性措施等多方面分析职务发明奖酬制度的不足之处。引用德国、美国和法国的雇员发明制度和这些国家职务发明奖酬的给付方式和相关规定，借鉴法国“任务发明”的规定，建议我国职务发明内涵中区分“职务发明”和“任务发明”，缩小职务发明的范围，明确各不同方式下的奖酬给付义务；借鉴美国双方约定奖酬的特点，建议当事人可以提请有关机构对职务发明奖酬约定合同进行审查；借鉴德国《私务中的雇员发明报酬规章》细化操作的方式，建议我国量化评估专利价值的方法，从法律价值度、技术价值度和经济价值度三方面充分的量化职务发明专利的价值，给奖酬的计算提供一个更明确更好量化的基准。基于上述分析和经验，结合我国职务发明奖酬制度的现状，提出完善我国职务发明奖酬制度的建议。立法上，建议适当缩小职务发明范围；约定奖酬时，明显不合理、限制或是排除一方权利的约定无效；建议明确单位以不同的方式使用职务发明时发明人或者设计人应得的奖酬计算基准；提高法定奖酬的标准，丰富奖酬形式；完善相关的监督措施，监督单位实施职务发明和支付奖酬。实践操作上，建议当事人可以将职务发明奖酬约定合同提请有关机构审查，对奖酬约定合同进行程序上和实质上的审查；完善知识产权评估机构，即保障发明人或者设计人的知情权，也防止单位的经营信息被任意侵害，且更加科学合理的从多维度评价职务发明的经济价值。
[Abstract]:At present, the global economic growth model is changing to the knowledge-based economy growth model. The level of scientific and technological innovation, represented by job inventions, has become a key factor in determining national economic growth and comprehensive competitiveness. Technological innovation is encouraged to become a core part of national economic development strategies, Encouraging job inventions should also become a magic weapon for enterprises to enhance their core competitiveness. However, the number of applications for job inventions in China is relatively low, and conflicts of interests between enterprises and inventors or designers are constant. The "one prize and two rewards" of the inventor or the designer are not guaranteed, and the profits made by the enterprise as a result of the invention cannot be ascertained, and it is difficult to require the enterprise to pay the remuneration stipulated in the detailed rules for the implementation of the Patent Law, This greatly reduces the initiative of inventors or designers to invent and create; there is even the phenomenon of talented people running away, and people leaving their inventions to apply for patents a few years later. This not only weakens the core competitiveness of an enterprise, The development of science and technology is also shackled. It is more and more important to seek a perfect system of reward and reward for job inventors, to maintain the enthusiasm of employers and employees to invent, and to encourage both sides to invest in intelligence and material investment. This paper first points out the problems existing in the legislation and practice of the present system of reward and reward for job inventors in our country, from the broad and unclear scope of the concept of "job invention", the single form of reward payment, and the difficulty of determining the remuneration standard. The rights and interests of both parties cannot be balanced in the manner stipulated in the regulations and agreed upon through consultation. When the unit uses the invention in other forms, the inventor or designer's reward is not guaranteed, and the inventor or designer has too high a cost to maintain his right to be paid. And the law does not stipulate that the unit does not pay the punitive measures and so on many aspects analyzes the duty invention reward system insufficiency. Referring to the employee invention system in Germany, the United States and France, as well as the payment methods and relevant regulations of the job invention awards in these countries, and drawing on the provisions of the French "mission invention", It is suggested that the connotation of "duty invention" and "task invention" in our country should be distinguished, the scope of job invention should be narrowed, the obligation of reward and payment in different ways should be defined, and the characteristics of the agreement between the two parties in the United States should be used for reference. It is suggested that the parties concerned may submit to the relevant institutions for examination of the contract for the appointment of awards and remuneration for service inventors; for reference to the detailed operation of the German regulations on compensation for Invention of employees in Private Affairs in Germany, it is suggested that the method of quantitative evaluation of the value of patents in China be adopted. From the legal value degree, the technical value degree and the economic value degree fully quantifies the duty invention patent value, provides a clearer and better quantification standard for the reward calculation. Based on the above analysis and experience, combined with the present situation of the system of reward and compensation for job inventors in our country, this paper puts forward some suggestions on how to perfect the system of rewards and rewards for job inventors in our country. In legislation, it is suggested that the scope of job inventions should be narrowed appropriately. The agreement to limit or exclude the rights of one party is invalid; it is suggested that the standard of calculation of the remuneration due to the inventor or designer when the inventor or designer of the job invention be used by the unit in different ways be clearly defined; the standard of statutory reward should be raised and the form of reward should be enriched; Perfecting relevant supervision measures, supervising units to carry out job inventions and paying awards. In practice, it is suggested that the parties concerned may submit the contract for the award and remuneration of job inventors to the relevant institutions for examination, To conduct a procedural and substantive review of the contract on reward and remuneration; to perfect the intellectual property evaluation organization, that is, to protect the inventor's or the designer's right to know, and also to prevent the unit's business information from being arbitrarily infringed, And more scientific and reasonable evaluation of the economic value of job invention from multiple dimensions.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.42

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