不請律師-自己申請專利(22):海歸不該忘卻的良好研發習慣

 

發明日在美國專利法上意義重大。朋友們在這兒搞研發，都有良好的研發習慣，對發明從腦子一閃念，橫空出世，到其後的發展，完善，論證，測試，檢驗，上下左右間的交流，著手準備專利申請等等都會做詳細的記錄，以備將來證明你的發明日之需。在中國，除了證明發明人資格時有點用處外，發明日的意義不大，對它的重視也就不太夠。所以，你要海歸，就很有可能多少丟掉一些這兒養成的良好研發習慣。如果你海龜後，從此與美國一刀兩斷，永不申請美國專利，這些習慣丟就丟了。否則，你最好別丟。中國過去不是世界貿易組織WTO成員國，所以美國那時候是不承認中國的這些發明證據的。中國加入WTO後，美國才開始承認。所以，不管誰在中國搞發明，養成或保持好的研發習慣，都是有益無害的。欲精確理解在美國之外有關確立發明日的規定，請參下段。

35 U.S.C. 104 Invention made abroad.

(a) IN GENERAL. (1)PROCEEDINGS.—In proceedings in the Patent and Trademark Office, in the courts, and before any other competent authority, an applicant for a patent, or a patentee, may not establish a date of invention by reference to knowledge or use thereof, or other activity with respect thereto, in a foreign country other than a NAFTA country or a WTO member country, except as provided in sections 119 and 365 of this title.

(2)RIGHTS.—If an invention was made by a person, civil or military—

(A)while domiciled in the United States, and serving in any other country in connection with operations by or on behalf of the United States,

(B)while domiciled in a NAFTA country and serving in another country in connection with operations by or on behalf of that NAFTA country, or

(C)while domiciled in a WTO member country and serving in another country in connection with operations by or on behalf of that WTO member country, that person shall be entitled to the same rights of priority in the United States with respect to such invention as if such invention had been made in the United States, that NAFTA country, or that WTO member country, as the case may be.

(3)USE OF INFORMATION.—To the extent that any information in a NAFTA country or a WTO member country concerning knowledge, use, or other activity relevant to proving or disproving a date of invention has not been made available for use in a proceeding in the Patent and Trademark Office, a court, or any other competent authority to the same extent as such information could be made available in the United States, the Director, court, or such other authority shall draw appropriate inferences, or take other action permitted by statute, rule, or regulation, in favor of the party that requested the information in the proceeding.

(b)DEFINITIONS.—As used in this section—

(1)The term “NAFTA country” has the meaning given that term in section 2(4) of the North American Free Trade Agreement Implementation Act; and

(2)The term “WTO member country” has the meaning given that term in section 2(10) of the Uruguay Round Agreements Act.