If former employees develop significantly improved technological solutions based on the technical secrets from their former employers and apply for patents under the name of the new employer,the determination that the ownership of such patents belong to the new employer contradicts the principles underlying misappropriation of trade secrets,and such patents should therefore be attributed to the former employer.Due to former employees'breach of confidentiality obligations,when such patent rights reassigned to the new employer,they are not allowed to recover R&D costs from the new employer on the grounds of unjust enrichment.Article 13 of the Implementing Regulations of the Chinese Patent Law provides that invention and creation patents filed by the former employee which related to the work or tasks assigned by the original unit within one year from the date of resignation shall belong to the former employer.This provision is unreasonable.Any employee's invention or creation related to the job or task assigned by the former employer should be attributed to the former employer,regardless of whether the patent application is filed within one year from the date of the employee's resignation.Of course,the technical information obtained by the new employer through reverse engineering does not misappropriate trade secrets,while reverse engineering should comply with the cleanroom procedure rules.
technical secretspatentsunclean handscosts based unjust enrichmentmalicious defense
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