SIPO released its latest draft for public comment of its proposed service invention regulations 职务发明条例草案 (送审稿), including a very useful Chinese language webpage on April 1. The website contains additional reference materials including summaries of comments on prior drafts (August 2012, November 2012 and December 2013), a comparison of these drafts as well as a report on the Japanese service invention system and summaries of meetings and surveys.
The draft is the product of several ministries and agencies, including SIPO, Ministry of Education, Ministry of Science and Technology, MIIT, Ministry of Labor and Social Security, Ministry of Agriculture, NCAC, Forestry Bureau, China Patent Protection Association and the Chinese Inventors Association. There is no stated deadline for submitting comments, rather the draft appears to have been published on a more open-ended basis to solicit public comments, including considering the viewpoints of comments previously submitted by others. SIPO has once again done an admirable job of making its policy considerations public available.
The proposed rules appear to adhere to the principle that gives priority to contracts or agreements between employers and employees. However, the drafters rejected proposals to place freedom of contract in the chapeau language of the draft regulation. The drafters also believe that there are minimal compensation standards that should apply to employee compensation claims. The draft removes prior references to employee compensation for software based on service invention standards, while maintaining compensation for plant variety protection employee contributions. It also maintains protections for inventors when a patent disclosure is not filed for a patent and maintained as a trade secret, but the enterprise has benefited from the invention. The employee inventor also retains a right to know about the circumstances of his/her invention being licensed to others which now is based upon circumstances where it has a need to know.
The survey of Chinese enterprises also provides useful background concerning SIPO’s motivations. The data shows that enterprises recognized the need to provide service invention compensation. However, there was concern about compensation for trade secrets, and interference in the management of enterprises to compensate inventors. SME’s were particularly concerned about interference in their enterprise’s autonomy.
When I first blogged about this draft regs, I reached a high of 426 hits – an education for me about how important this issue is to readers of this blog.