不请律师-自己申请专利(22):海归不该忘却的良好研发习惯

 

发明日在美国专利法上意义重大。朋友们在这儿搞研发，都有良好的研发习惯，对发明从脑子一闪念，横空出世，到其后的发展，完善，论证，测试，检验，上下左右间的交流，着手准备专利申请等等都会做详细的记录，以备将来证明你的发明日之需。在中国，除了证明发明人资格时有点用处外，发明日的意义不大，对它的重视也就不太够。所以，你要海归，就很有可能多少丢掉一些这儿养成的良好研发习惯。如果你海龟后，从此与美国一刀两断，永不申请美国专利，这些习惯丢就丢了。否则，你最好别丢。中国过去不是世界贸易组织WTO成员国，所以美国那时候是不承认中国的这些发明证据的。中国加入WTO后，美国才开始承认。所以，不管谁在中国搞发明，养成或保持好的研发习惯，都是有益无害的。欲精确理解在美国之外有关确立发明日的规定，请参下段。

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.