The State Intellectual Property Office (SIPO), the Ministry of Education, the Ministry of Science and Technology, the Ministry of Industry and Information along with nine other government authorities jointly issued a notice entitled “Several Opinions on Further Strengthening the Protection of the Legitimate Rights and Interests of Inventors of Service Inventions to Promote the Application and Implementation of Intellectual Property Rights” (hereinafter the “Opinion”) on 5 January 2013. The Opinion sets out general guidelines, as opposed to specific rules for implementation, and may well be a precursor of more comprehensive legislation on this subject, for example, the Service Invention Regulations, which was circulated as a draft for public comment by SIPO in late 2012 and is one of the regulations identified by SIPO for fast-track legislation in 2013.
The Opinion, which seeks to protect the rights and interests of those who create inventions in the course of their employment (i.e., “Inventors”) in an effort to promote and encourage innovation by these individuals, requires State-owned enterprises and institutions and military entities to establish robust systems of rules and regulations that clearly set out the responsibilities, rights and obligations of all parties, consisting of systems for reporting of innovations, management of the service inventions, rewarding and remunerating of inventors. This is part of the government’s current ten-year plan (2010 – 2020) for the mid to long-term development of talents and builds upon the existing legislative framework provided by China’s patent regime and other related regulations.
The Opinion sets out specific measures to protect the lawful rights and interests of Inventors and to encourage them to participate in the use and implementation of service inventions and the intellectual property rights related thereto, for example, encouraging entities and Inventors to enter into agreements addressing the ownership of the intellectual property rights underlying the inventions, supporting Inventors to obtain IP rights that are to be abandoned by State-established institutions of higher education and research institutes (the “Institutions”), and encouraging active participation on the part of these Inventors in seeking to use and implementation of intellectual property that have been able to be utilized by these Institutions for more than two years.
The Opinion also seeks to safeguard the Inventors’ the right of attribution in patent documents and other relevant documents; it also calls for an increase in the proportion of remuneration for service inventions; a means for determining the reasonable amount of remuneration for service inventions; prompt offering of awards and remuneration to Inventors (which is generally within three months of the relevant milestone, e.g., the granting of intellectual property rights, receipt of license or assignment fees, etc.); and protecting the Inventor’s right to receive rewards and remuneration, during or after the employment, and to allow heirs to succeed to such rights in the event of the Inventor’s death, unless the parties have agreed otherwise.