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China

In some countries, such as for example in China, the law defines the minimum level for compensation:

Rule 77

Where the entity to which a patent right is granted fails to agree with the inventor or the designer on, or to specify in its legitimately enacted company rules the way and amount of reward and remuneration specified in Article 16 of the Patent Law be paid, the entity shall reward to the inventor or designer within 3 months from the announcement of granting the patent. The minimum reward for one invention patent

shall not be less than RMB 3000; and the minimum reward for one utility model or

design patent shall not be less than RMB 1000.459

The reward to be paid for the grant of the patent, irrespective of its utilization, shall be a minimum of 3.000 RMB. However, the minimum level of remuneration for a patent that has been utilized has not been defined as a specific monetary amount:

Rule 78

Where the entity to which a patent right is granted fails to agree with the inventor or the designer, or to specify in its legally enacted company rules the way and amount of reward and remuneration specified in Article 16 of the Patent Law, the entity shall, after exploiting the patent for invention-creation within the term of the patent right, pay the inventor or designer remuneration at a percentage of not less than 2% each

year from the profits generated from the exploitation of the invention or utility model

patent, or at a percentage of not less than 0.2% from the profits gained from the exploitation of the design, or pay the inventor or creator a lump sum of remuneration by reference to the above percentages; where the entity to which a patent right is granted authorizes other entity or individual to exploit its patent, it shall reward the inventor or designer at a percentage no less than 10% from the royalty fee.460

The inventor shall be entitled to a separately defined minimum percentage share of the profits generated by the employer’s or a third party’s exploitation of the patent. The percentages differ depending on whether the patent is exploited in the employer’s own business or by licensing the invention out. The latter share is higher than for inventions which are exploited by employer’s production, as the profits from

459 _{Implementing Regulations of the Patent Law of the People’s Republic of China, Rule 77;} Emphasis added.

460 _{Implementing Regulations of the Patent Law of the People’s Republic of China, Rule 78;} Emphasis added.

licensing are derived from the patent whereas the sales price of a product is also impacted by factors other than patents.

It should be noted that the latest draft of the fourth amendment to the Chinese patent law includes a newly added paragraph to Article 6, stating that the entity may use property-right incentives, such as equities, stock options and profit sharing to reasonably share the earnings of innovations with inventors and improve the exploitation of the invention.461 _{The proposed amendment resembles the revision of} the Japanese patent law, which added that compensation can also be given in the form of other economic benefits. Notably, there was also an earlier proposal, the specific Draft regulations for employee inventions.462 _{The minimum level of the} reward to be paid for the patent rights to the inventors proposed therein was twice their average monthly salary.463 _{The proposed minimum percentages for the} remuneration were 5% from the operating profit or 0.5% from the revenue from exploiting the patent rights.464 _{For the assignment or licensing of the patent rights,} the total remuneration should have been, at a minimum, 20% of the net income from such an assignment or licensing.465 _{However, the Draft Regulation aroused great} criticism from the employer side. Companies especially complained that the minimum standards for rewards and remunerations were too high to implement, or the statutory provisions looks more like labor standards which might conflict with the market doctrine. As a result, the Draft Regulation was sheltered.466 _Thereafter, the fourth patent amendment was initiated, and remuneration is expected to continue to be regulated by the patent law, and details by the implementation regulations of the patent law.

461 _{Source of information: http://scjg.sx.gov.cn/art/2019/2/22/art_1628905_30447030.html} (translated for me by CN attorney Tom Qi Xiaohuan).

462 _{The Draft was based on discussions and opinions from the National Intellectual Property Office,} Ministry of Education, Ministry of Science and Technology, Ministry of Industries and Information, Ministry of Labor and Social Security, Ministry of Agriculture, State-owned Assets and Administration Commission, Bureau of Copy Right, State Forestry of Administration, Patent Protection Association of China, China Association of Invention. However, in this process, All China Federation of Trade Union was not involved. The Draft was first published in 2012, and the updated version of the Draft finalized by CNIPA by April 2014 was formally published by the State Council for public comments in April 2015. Source: Qian Wei, ‘Draft Regulation on Employee Invention and Innovative Workers Protection in China’ (2017) 1(3) Japan Labor Issues, p. 18.

463 _{Proposed Article 20.} 464 _{Proposed Article 21.1.} 465 _{Proposed Article 21.3.}

466 _{Qian Wei, ‘Draft Regulation on Employee Invention and Innovative Workers Protection in} China’ (2017) 1(3) Japan Labor Issues, p. 20.

Russia

The Russian law also includes a statutory remuneration, but no specific amounts are defined therein:

Article 1370

4(3) If the employer obtains a patent for an employee’s invention, employee’s utility model or employee’s industrial design, or takes a decision to keep information on such an invention, such a utility model or such an industrial design in secrecy and informs this to the employee or transfers the right to obtain a patent to another person or fails to obtain a patent on the basis of the application filed by him due to circumstances for which he is responsible, the employee shall have the right to remuneration. The amount of remuneration, the terms, and the procedure for payment by the employer shall be determined by a contract between him and the employee and in case of a dispute by a court.

4(4) The Government of the Russian Federation shall have the right to establish minimum rates of remuneration for employee’s inventions, employee’s utility models, and employee’s industrial designs.467

The amount, the terms and the procedure for payment shall be agreed upon between the employee and the employer, however the Russian Government is entitled to set minimum rates for remuneration. Such rules came into effect on October 1, 2014. 468 They provide for three different types of compensation, payable in three stages: 1) A lump sum payment for the creation of a patentable invention (or an industrial design or a utility model) of 30% of the average monthly salary of the inventor (or 20% in case of an industrial design or a utility model), irrespective of whether the employer seeks to patent the invention or not, 2) an annual payment for use of the patentable invention by the employer of 100% of the average monthly salary of the inventor or author for every year of use, and 3) a payment due when the invention is licensed or assigned by the employer of 10% of the revenues received by the employer from the licensee under a license agreement, and 15% of the revenues received under an assignment agreement.