专利权归属研究
发布时间：2018-11-26 14:04
【摘要】：随着市场经济的发展以及知识经济的不断深化,专利权问题逐步映入大众的视野,在专利权归属上也出现了众多的研究著述,并且在研究中针对具体的实践问题有定的指引作用,在加入世贸组织后,我们面临的最大问题就是知识产权方面的保护。因为近些年来,我国频繁面临知识产权方面的纠纷,因而,需要我国去重视知识产权方面的保护。专利权和著作权、商标权属于我们所谈的狭义知识产权。在知识产权构成中,专利权是地域性最强的,也是最容易引发纠纷的权利。从当前国内外研究来看,国内对于专利权研究还是有欠缺的,尤其是专利权归属方面的研究不够深入和具体。 另外,随着经济的发展,很多新型技术的出现,专利权归属法律法规已经呈现出其的滞后性,因此,对于专利权归属研究是必要的,只有对专利权归属做出充分的研究,将一些易产生纠纷的方面进行明确,从而减少纠纷的出现,体现出法律对于知识产权的重视以及对经济发展的推动力。 本文对专利权的属性与特点作简要叙述,对英美法系、大陆法系对知识产权归属的立法及司法进行了研究,并依据专利权的这些基本属性与特点,将两大法系的专利权归属理念及特点与我国的专利权归属进行了比较分析。以美国为代表的英美法系经历了从发明创造者为倾向逐步增加企业倾向的过程,在19世纪末的判例中,法院认可了公司在雇佣合同中要求员工将发明所有权转让给企业的要求,但仍然保留着对职务发明的严格控制。以德国、日本为代表的大陆法系秉持着“雇员主义”、“天然属于发明人”的原则精神,即职务发明的原始权利属于雇员；只有在企业根据法律规定提出或无限权利主张时,权利才有可能转归属雇主,但是雇主只能在专利实施权利和支付获报酬之间做出选择。我国的专利立法比较晚,吸取了英美法系、大陆法系等发达国家的立法经验,相对比较先进,但是由于我国国民与企业的专利等知识产权意识相对较弱,形成先进立法缺少优质土壤的状况,导致执法效果不太理想。据此,笔者提出我国专利权归属方面存在的一些问题,比如专利制度的实践指导性不强、对个人发明创造的激励性不强、企业为申请专利而申请专利产生的申请泡沫等,笔者通过对发现问题的分析研究,从修改完善《专利法》和《专利法实施细则》的部分条款等立法和司法及行政干预等方面提出自己的看法与建议,并针对职务发明、专利权共有等表明了观点。 希望对专利权基本归属问题的法学与社会学的思考,能够给企业、社会以及国家提升专利管理提供有益的参考借鉴。
[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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.42
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