Discussion On The Feasibility And Rules Of Generating Common Patent Rights Based On Marriage Relationship

According to the relevant law and judicial interpretation,the main way of distributing the economic benefits of patent rights in marriage is the sharing of patent rights,that is,whether the process of patent invention and creation occurs during the existence of the marriage relationship,as long as the marriage occurs.The proceeds of patent rights,the proceeds of the patent right are the joint property of the husband and wife,and are equally distributed by the husband and wife.The patent right needs to go through the process of invention creation,the process of applying for authorization,the process of licensing conversion and the process of generating income.The conclusion or termination of the marriage relationship may be completely coincident or only partially coincident.Just relying on the amount of income generated during the marriage period can be more easily dealt with the problem of the economic benefits of the patent interest in the marriage,but the history of the patent right is neglected,and the income of some patent proceeds is not consistent.The basic legal logic of "paying equals with income" does not follow the fair concept of civil law.Such legal provisions have also produced a number of legal loopholes in judicial practice,reflecting the legal decoupling between the marriage law and the patent law.The income of the patent right is the concrete manifestation of the value of the patent right,and the patent right is also the source of the patent right.Taking the patent right as the object of the joint property of the husband and wife,considering the economic benefits arising from the future sharing of the patent right by the spouse who contributed to the formation of the patent right will help to smooth out the2 problem of the economic interests of the patent interest in the marriage.The first chapter of this paper studies the necessity of generating patent rights based on marriage relations.This paper argues that the current treatment of patent economic interests in marriage involves the sharing of patent rights rather than patent rights.There are many misunderstandings in theory,legislation and judicature: theoretically,patent rights have personal attributes,and patent rights cannot be separated from their personal attributes.The patent right must be tightly bound with the spouse who is involved in the invention of the invention within the marriage;in the legislation,it only recognizes that the patent proceeds arising from the marriage are shared by the husband and wife,negating the possibility that the patent right is shared by the husband and wife;It is pointed out in the referee that the patent right is inseparable from the inventor of the invention,and the patent right is owned by the spouse who participates in the invention.In-depth analysis of the root causes of many misunderstandings should be based on the following aspects: First,the "source flow" relationship of patent rights "common and income" is misplaced,and the patent income is the transformation of the economic interest of the patent.The root cause lies in the patent right.If there is a joint investment of various forms of husband and wife,it is not inappropriate to share the patent right.However,if the patent is formed with only one spouse's personal efforts,the spouse who does not participate in the invention does not participate in the patent right.Reasonable reasons for the distribution of income;Second,scholars have a misunderstanding of the patent "personal attributes".The personal connection between the inventor and the invention is never cut off.However,as a legally prescribed right,the patent right is the property of the property.The patent for the service invention can be supported by the patent holder;the third is that the divorce lawsuit involves the division of patent rights and benefits.The current period of marriage and the income generated by the patent are all identifiable.This stipulates that the treatment efficiency is the highest but neglecting the spouse's pay is fair but difficult to guarantee.Paying attention to the patent income and neglecting the patent right also lead to many legal loopholes.For example,the spouse who participates in the invention and creation creates a deliberate delay in the conversion of the patent right,so that the patent right can not generate the patent right or the patent income is low in the marriage;the patent right income The problem cannot be completely solved in the divorce proceedings.The economic benefits of the patent right after divorce may still cause litigation;the patent right cannot be expected to provide reasonable compensation,and the patent right may generate economic benefits in the future and may not generate economic benefits.The divorce is based on the divorce.At the time,the economic situation of both parties cannot accurately estimate the status of future patent rights.The second chapter of this paper analyzes the feasibility of patent ownership based on marriage relationship,and explores whether the patent ownership based on marriage relationship can be legally established,and whether this common form can be accepted by the current legal framework.In terms of the reasonableness of the patent ownership,this paper considers that it is mainly based on the following two points: First,based on the contribution of the spouse who is not involved in the invention to the formation of the patent right.This kind of contribution includes not only the various contributions made to the family,but also the consumption of the joint property of the husband and wife in the process of invention and creation.Second,the concept of equal protection of property in the field of marriage and family affairs,and the regulation of other property in the marriage relationship.mode.In terms of the possibility of generating patent shares,this paper considers that it is mainly based on the following three points: First,the property rights of patent rights provide the legal basis for generating shares.The patent right does not have inseparable personal and property attributes,and its personality is mainly reflected in the relationship between the inventor and the invention.It can be the object of the joint property of the husband and wife based on the property rights attribute;the second is that the common type of patent rights provides a reference for the generation of the common.The law stipulates that there are eleven types of patent rights,and patents can be established based on legal actions such as company4 operations,gifts,agreements,and inheritance.Moreover,the child's inheritance relationship that does not contribute to the formation of the patent right may also result in the sharing of patent rights.The existence of the patent right exists based on the marriage relationship;the third is that the patent law generates spiritual incentives that are not affected by the patent rights.The patent law not only generates property incentives for the patentee,but also brings spiritual incentives to the patentee.The spiritual incentive is inseparable from the identity of the inventor.The creation of patent rights based on marital relations does not affect the role of patent law incentives.The third chapter of this paper discusses the rules common to the patent rights based on marriage relations.The patent right arising from the invention and creation in marriage shall be dominated by the unilateral domination of the spouse participating in the invention during the existence of the marriage relationship,which shall be the representative of the conversion of the patent right and shall exercise the patent right on behalf of both spouses.The spouse is entitled to claim only if the exercise result is significantly lower than the market price.Since the result of the implementation of the patent right in marriage is to increase the joint property of the husband and wife,the spouse who is not involved in the invention may of course implement the joint patent right.When the marriage relationship is over,it is necessary to divide the joint patent rights.At this time,the one-time division and negotiation should be supplemented by the judgment of the main court as the division principle,and the parties should be given the right to choose the division method according to the specific situation.According to the specific circumstances,the parties may choose to discount or compensate,or may choose to divide the patent right.The object of patent division shall be judged by the time of completion of invention and creation,and shall be divided into unequal divisions,with equal division as an exception,and when the division involves other patent holders,other patent holders have the right to exercise the right of first refusal.In order to avoid the reduction of the number of patentees and the reduction of the efficiency of patent conversion,even if the patent rights are divided after divorce,it is still possible to realize the separationof ownership and management rights of patent rights by borrowing from the UK's licensing commitment system or improving the patent trust system in the future.Improve the future conversion efficiency of patent rights.