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美國法上大學研究成果之專利權益歸屬-以學生爲主

The Patent Ownership of Students' University Research under the U.S. Laws

摘要


美國大學從事大學發明已有相當時日,包括產學合作等等,也因此有實務案例俾供借鏡,是以,大多數學校均訂有專利政策或智慧財產政策等規範權益之歸屬。多數學校為因應學生研發出成果的情事,而於政策中之適用對象併入學生,甚至為確保政策的效力,已要求師生均需簽署同意書,以杜絕日後的爭議。 我國早期建教合作制度,多限於政府委辦之情事,大多數學校相關規範均建教合作辦法為藍本,其內容難以釐清教師、學生與學校之權益歸屬。 因應「科學技術基本法」暨「政府科學技術研究發展成果歸屬及運用辦法」,目前有四所學校訂定智慧財產管理辦法,均將建教合作所得權益列規學校所有,至於非屬建教合作,但利用學校資源,僅國立中正大學明定其權益歸屬發明人所有,而由學校主張適度之權利金,其餘仍訂歸學校所有。美國多數學校亦採與交大、台大、高雄科大相同之規定。此無論就美國法或我國法的觀點,均屬不宜,充其量僅予學校主張適度補償之權益(如中正之辦法)。 為使學校管理辦法確具其有效性及拘束力,宜採美國多數大學的做法,要求師生簽署同意書;不過,學校必須先檢視其辦法是否合法,並合乎公平性。學生應有充分機會瞭解管理辦法內容,決定是否簽署,並以此為擔任研究助理或使用學校資源設備的先決要件。換言之,一如美國法,辦法本身應定位為「要約」,以學生簽署同意書為承諾,始受其辦法之拘束,而不得逕以辦法為學校校規要求學生遵守。如此,方可妥適確保學校與學生之權益。

並列摘要


For the past few years, American students stood up to fight their rights in schools, they asked for organizing student unions so as to gain the protection under the labor law. It should be alerted that, in the near future, the ownership of university research and inventions will be one of the primary issues between students and universities. American universities have been working on university inventions for years, especially in the field of industrial-academic research. Having learned from practical experiences, most of universities conducted policies, such as patent policies and intellectual property policies, to regulate the ownership of research and inventions. In addition to university faculty, they included students into the policies so as to regulate the situation that students accomplish inventions. In order to prevent any dispute, some universities also require faculty and students to sign agreements to comply with the policies. In our society, academic-government research or academic-industrial research have been performed for decades; until 1999, government would definitely own the result of the research in any case which it involved. In 1999 and 2000, government promulgated new laws to promote academic-government research or academic-industrial research by providing that the result of research no longer belong to the government. So far, four universities have established policies according to the new regulations. But, none of them provides how the policies will be enforced; and, only two of them include students into the policies, besides, in the case of using university's resources or facilities to accomplish research or invention, three of them claim those results belong to the universities. Such policies are disputable. Studying on American universities policies and practical experiences, it is believed that the reasonable measure to protect interests of universities and students is to have a written agreement between them; by doing so, it shall be more fair and equitable to treat university policy as an offer, and disclose contents of policies to students (as offerees) before require them sign the agreement.

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