중국 직무발명제도에 대한 연구

Abstract

Articles 6 and 15 of the Chinese Patent Act stipulate employee invention system in China. First of all, the Article 6 stipulates the requirements for recognition of employee invention and the belonging of rights. According to Article 6, for employee inventions to be recognized, it must correspond to inventions completed by an employee while performing the duties of the employer, or inventions completed by an employee mainly using the material and technical conditions of the employer. According to Article 12, Paragraph 1 of the Implementation Rules of the Chinese Patent Act, the former inventions include inventions completed by an employee while performing his tasks, inventions completed by an employee performing duties assigned by the employer other than his tasks, and inventions that is completed within “one year” after an employee retires from the employer’s company and is related to his tasks or the duties assigned by the employer. And since Article 6 stipulates that the right to obtain a patent for employee inventions belongs to the employer, the Chinese employee invention system adopts “employeeism”. Article 15 stipulates the legal basis and standards calculating compensation for employee invention. According to Article 15, an employer shall provide “incentive” as a basic compensation to the employee who completes an employee invention, and if the employer implements the invention, a reasonable remuneration shall be paid to the employee as an additional compensation for this. Therefore, the Chinese employee invention system is characterized in that it divides the compensation of employee invention into “incentive” and “reasonable remuneration”. Articles 77, 78, and 79 of the Implementation Rules provide the criteria for calculating compensation for employee invention.