The Intervention And Autonomy Between China And Japan On Service Invention System

In recent years, China has been developing rapidly on technology and science fields, the amounts of applying for patent are the highest in the world, however, the amounts of applying for service patent are not as many as we thought, because of the problem of uneven distribution of benefits between employers and employees. To balance the benefits, China has formulated the Draft Bill of service invention and Draft Amendment of Patent Law to redistribute benefits by the way of administrative intervention on ownership of service invention and lowest line of rewards. In the same time, the Japanese employers were shocked, since the Japanese courts has been bringing great numbers of consideration of service invention in verdicts. They think that the great numbers of consideration of service invention are too high to expect. However, Japan took autonomy as main approach to solve the problem. The Amendment of Patent Law of Japan makes the minister of Economy to formulate a guidebook which could guide the employers and employees to distribute benefits by themselves.This article has four chapters, the first chapter presents that the uneven distribution of benefits problem in service invention system in China and Japan, and the approaches adopted by the two countries. On one hand, that the Draft Bill of Service Invention and The Draft Amendment of Patent Law formulated by China adopt administrative intervention as main approach to evenly distribute the benefits between employers and employees. On the other hand, Japan took autonomy as tools to guide the employers and employees to distribute the benefits by themselves.The second chapter analysis the service invention system of China and Japan from administrative intervention and autonomy views. Since the appearing of Patent Law in China, the government has been using administrative intervention as foremost tool to balance the benefits between employers and employees, but the autonomy was also introduced to the system in former Amendments of Patent Law. However, the Draft Bill of Service Invention increases the power of administrative intervention rather than autonomy this time. On the contrary, the principle of autonomy didn’t change, even Japan Patent Law has amended for a couple of times. At last, rethinking the Strengths and weaknesses of the service invention system between two countries by practice results.The third chapter investigates the function of service invention system through incentives and economics views. The incentives are from the relationships between employers and employees and don’t need the intervention of administration, which may destroy the balance of benefits. The economics thinks that the autonomy is the best option for service invention system.The forth chapter analyses the boundary of administrative intervention and demonstrate the responsibility of the administrative power in intellectual property system. At last, proposing two solutions which are autonomy and judicial intervention to solve the problem.The intent of writing this article is to learn the successful lawmaking and enforcement experience from Japan through the administrative intervention and autonomy view during the amending of Patent Law.