Patent law: objects and subjects, concepts and principles. Registration of patent rights

Civil law > Patent law: objects and subjects, concepts and principles. Registration of patent rights

Section 7 of the Civil Code of the Russian Federation is devoted to the regulation of legal relations related to rights to the results of intellectual activity. This type of rights also includes means of individualization of organizations, goods, works and services. Patent rights occupy a special place among other intellectual rights. They are regulated in detail by the provisions of Chapter 72 of the Civil Code of the Russian Federation, which is part of Section 7 of the Civil Code of the Russian Federation.

• 2 Sources of patent law
• 3 Copyright and patent law: differences
• 4 What does Chapter 72 of the Civil Code of the Russian Federation say?
• 5 Objects of patent law
• 6 Subjects of patent law
• 7 Principles of patent law
• 8 Registration of patent rights
• 9 Patent infringement
• 10 Protection of patent rights

Concept of patent law

Patent law is one of the institutions of civil law. It regulates legal relations arising between the author of an intellectual property object and other persons. According to the provisions of Art. 1345 of the Civil Code of the Russian Federation, the provisions on patent law are applied in cases where the final result of the developer’s intellectual work is:

• invention;
• utility model;
• industrial model.

The creator of these objects has both the right of authorship and the exclusive right to them. The rights to the results of the author’s work are protected by a special document - a patent. A patent is valid in the territory of the country in which it was obtained.

Legal scholars consider patent law from two points of view: in the objective and subjective senses. From the objective side, patent law can be characterized as a set of provisions enshrined in regulations governing legal relations arising in connection with the authorship of results of intellectual activity for which a patent may be issued, and the need to protect them. From a subjective point of view, patent law is the right of a certain subject, which is directly related to the specific result of intellectual work.

Rights and obligations of the patent owner

Obtaining a patent gives authors the following rights:

1. Authorship means that that person or group of people is recognized as the creator of the invention they made. It is important to note that this right does not allow you to sell, gift or otherwise transfer it to others. This cannot be part of a will. Authorship cannot be renounced. Even after the death of the inventor, his right continues to exist.
2. There is a right to provide a name. The author can choose it for the subject matter to which the patent relates.
3. You have the right to apply for a patent not on the territory of the Russian Federation, but to do so abroad.
4. Only the author has the right to obtain a patent. However, the composition of such persons may subsequently be changed or expanded.
5. Existence of exclusive rights. They provide the opportunity to dispose of the invention, including the opportunity to sell it. Unlike authorship, they are not eternal. After the expiration of the period provided by law, the author loses the right to them.

The person who issued the patent also has responsibilities. These include the need to pay patent fees. If this is not done, the received document may be cancelled.

Interestingly, another responsibility of the author is that he must provide the opportunity to use his invention in practical activities.

This can be illustrated with the following example.

If a certain company wants to take advantage of the innovation made and has approached the author in order to conclude an appropriate agreement, but he refuses to negotiate, then it has the right to file a lawsuit against him.

If it can be proven that the author is preventing the implementation of the invention made, then the court may grant a compulsory license to the plaintiff, which is non-exclusive.

Sources of patent law

The main regulatory act on which patent law is based should be considered the Civil Code of the Russian Federation. First of all, these are the provisions of Chapter 72 of the Civil Code of the Russian Federation.

Also, certain issues related to patent law are regulated by separate norms of the Family Code of the Russian Federation and the Bankruptcy Law. Requirements for the execution of documents and the form of their preparation are determined in accordance with regulations adopted by the federal executive body for intellectual property.

Many situations directly related to patent law are regulated in accordance with the rules established by regulations of the Ministry of Education and Science of the Russian Federation and Rospatent.

The specifics of the application of a number of provisions of the Civil Code of the Russian Federation are explained in decisions of the highest bodies of judicial power. To protect the rights to the results of intellectual activity, authors and patent holders can rely on the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 26, 2009 No. 5/29 “On some issues that arose in connection with the introduction of Part 4 of the Civil Code RF".

In addition, international agreements to which our country has joined are recognized as sources of patent law in the Russian Federation:

• Paris Convention for the Protection of Industrial Property of March 20, 1883
• Eurasian Patent Convention of September 9, 1994
• Patent Convention Treaty, signed in Washington in December 1970.

Regulation of patent law issues in the Paris Convention of 1883

The Paris Convention, which regulates the protection of industrial property, established a number of provisions of international patent law.

1. The Convention gave a broad definition to the concept of industrial property, including the areas of extractive industries, agricultural production, as well as products of natural and industrial origin. The objects of protection were those specified in the Civil Code, as well as trademarks, brand names, etc.
2. A national regime was established in the field of patent law - foreigners are granted the same patent rights as citizens of the state.
3. The Convention does not introduce an international patent; The rights of patent holders are limited to the territory of the state where it was obtained. A participant does not have the obligation to recognize patents issued by other participants: if an object is not patented in the territory of a state, it can be used freely, without paying remuneration to an entity that has a patent for it in another state.
4. The right of conventional priority is enshrined, suggesting that if 2 applications for 1 object are filed simultaneously in a state, the entity that first filed the application with the national office will have priority for filing the application. A differentiated priority period is established: for inventions - 1 year from the date of registration of the application with the national authority, for trademarks and industrial designs - six months.
5. The rule of exhibition priority has been fixed - the author of a new industrial facility presented at an international exhibition has priority in obtaining a patent in other countries within 6 months.

Copyright and patent law: differences

Patent law is always associated with legal relations regarding the results of the intellectual activity of a certain person. The same can be said about copyright. In both cases, the legitimate interests of authors and other creative individuals are protected.

However, the above does not mean that copyright and patent law are identical. There are a number of differences between them.

The main one is that copyright law is intended to regulate legal relations associated with authorship of creative works, and patent law – legal relations arising in connection with the development and creation of an object that can be applied in the scientific and technical field.

Patent law, unlike copyright law, protects not the object itself, but the totality of ideas developed by the author, on the basis of which it was created. It is illegal for others to make the same objects based on the same ideas without obtaining the necessary permission.

For recognition of a work as an object of copyright, its artistic value is not decisive. In this case, a patent for an invention will be obtained only if it is found useful for industrial application.

It should also be noted that all copyrighted works are unique. Objects covered by patent law may have the same principles of operation for different authors. There are many such examples. In particular, the inventor of radio in our country is A. Popov, and in the USA - the Italian G. Marconi. Their inventions were made almost simultaneously, independently of each other, but G. Marconi was the first to receive a patent for the invention of radio.

Copyright begins immediately upon creation of the work. In patent law, things are somewhat more complicated, since the result of the author’s work is protected by law only after filing an application with Rospatent.

Obtaining a patent means protecting your invention, utility model or industrial design from theft by others

Rights to an invention, utility model, industrial design (patent law)

1

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Principles of legal protection of the results of technical creativity. Patent law. Technical creativity is a scientific and technical creative activity, the purpose of which is the development of new technical (applied) ideas, the creation of new designs in industry, construction, transport, etc.
<1>.

———————————

<1> See: Krasavchikov O.A. Creativity and civil law (concept, subject and composition of the sub-branch) // Krasavchikov O.A. Categories of the science of civil law: Selected works: In 2 vols. M., 2005. T. 2. P. 473.

Technical creativity is objectified in material products or in the technological process. Protected results of technical creativity are inventions and utility models

(but not scientific discoveries, scientific theories or mathematical methods, which, due to their fundamental nature, cannot exclusively belong to the discoverer).

The criterion of creative activity combines the results of technical creativity and the results of artistic creativity (objects of copyright). However, the principles of legal protection of the results of technical creativity have significant features that differ from the principles of protection of copyright objects:

— the idea is protected in the results of technical creativity, i.e. content

scientific and technical solution;

— the results of technical creativity are repeatable

, i.e. can be simultaneously created by several authors with parallel independent creativity (ideas, as we know, “are in the air”);

— the results of technical creativity receive legal protection subject to their novelty

on a global scale;

— establishment of priority (superiority) of a scientific and technical solution is carried out formally according to the date of filing the application with the patent office of any state (priority date)

;

— rights to the results of technical creativity are recognized and protected only in case of state registration

such results in special registers by the patent office of one or more states on the territory of that state or states;

— based on the results of state registration, a patent

— a document certifying the rights to the results of technical creativity;

— all applications, as well as decisions on state registration and issuance of patents are in the public domain

(except for materials on secret inventions);

— disputes

issues related to the invalidity of a patent are considered, as a general rule,
administratively
by a body that is competent in technical matters, followed by judicial review;

- short deadlines

validity of the exclusive right to the results of technical creativity.

The advantages of patent protection, associated with greater formalization and, as a consequence, greater certainty, have led to the fact that some copyright objects have the opportunity to be legally protected on the above principles (objects of double protection at the choice of the copyright holder). These are objects that are the results of artistic and technical creativity.

Artistic and technical creativity is a creative activity in the field of industrial (industrial) design, “with the goal of improving the external advantages of objects produced in industry”

<1>
.
The protected result of artistic and technical creativity is
an industrial design
.

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<1> Definition given in 1969 by T. Maldonado (see the article “Industrial Design” on Wikipedia).

The peculiarities of legal protection of the results of technical creativity led to the formation of an independent institution “patent law” - a sub-branch of intellectual rights.

Patent law is an institution of civil law that regulates property and personal non-property relations related to the official recognition, use and protection of inventions, utility models (in the field of technical creativity) and industrial designs (in the field of artistic and technical creativity).

2

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Objects of patent law.
Conditions for patentability . There are three objects of patent rights:

1) invention - a technical solution related to a product or method

.
A product
is understood
as a device, substance, strain
(i.e. pure culture) of a microorganism,
cell culture
, etc.
Method
is understood
as the process of performing actions
on a material object using material means. The patented process often produces a tangible product;

2) utility model - a technical solution related exclusively to a device

. A device is one of the varieties of a product: a design, machine, mechanism, unit, etc., or just a product (ballpoint pen, telephone, etc.). A utility model is sometimes called a “small invention”;

3) industrial design - decision on the appearance of a product of industrial or handicraft production

. By deciding the appearance of a product we mean decisions that relate to shape, configuration, ornament and color combination. The appearance of cars, smartphones and other household appliances, furniture, printed products (book series covers, labels, etc.), fabric patterns, colors of clothing, bottle shape, etc. can be registered as industrial designs.

The difference in the objects of patent rights is manifested not only in their relevance to certain material media (these are actual differences), but also in the conditions of patentability (these are legal differences). Patentability conditions

— these are the criteria under which a decision is granted legal protection, and the decision itself is recognized as subject to state registration.

Patentability conditions have a dual meaning. On the one hand, the patent office checks the decision contained in the patent application for compliance with the conditions of patentability - a preliminary examination of the application is carried out on its merits, thereby carrying out preliminary control

protectability of the decision applied for registration. On the other hand, after the grant of a patent, any person can file objections with the patent office, indicating that an error was made during the examination of the application, and the decision still does not meet the conditions of patentability - in this case, the patent office can decide to recognize the patent invalid, thereby carrying out subsequent control of the patentability of the patented solution.

In general, the conditions for patentability are novelty, industrial applicability, inventive step and originality.

. But for each object of patent rights there is its own strictly defined set of patentability conditions (see Table 1):

Table 1

Novelty as a condition for patentability

characteristic of all objects of patent rights.
The novelty of the object of patent rights is its unknownness from the “level of technology”, i.e. the absence, as of the priority date, in publicly available sources of information around the world of information about the decision or even about the actual application of the decision in respect of which a patent is sought
. Public information is information that can be accessed by an unlimited number of persons legally, including for a fee. First of all, when determining novelty, patent materials are analyzed: patents ever issued, patent applications (even if, as a result of their consideration, the grant of patents was refused).

Industrial applicability as a condition of patentability

characteristic of inventions and utility models.
Industrial applicability is the ability of a technical solution to be implemented practically in accordance with its stated purpose
. A perpetual motion machine, for example, will not be patented precisely because it cannot actually be eternal.

Inventive step as a condition of patentability

characteristic, as the name suggests, only of invention.
Inventive step is a subjective criterion when a specialist in the relevant technical field recognizes that the presented solution does not follow by itself from the “state of the art”
: it is not created by combining, modifying or sharing known information. According to this criterion, inventions and utility models are distinguished. If a solution does not involve an inventive step, it can still be recognized as a utility model provided it is novel. For example, at one time a two-cassette tape recorder could not claim to be an invention, but it fully met the criteria of a utility model.

Originality as a condition of patentability

characteristic only of an industrial design.
Originality is traditionally considered a characteristic of copyrighted objects. The requirement for an industrial design to have both novelty and originality is explained by the dual nature of the industrial design as an object of copyright protected by patent law. In patent law, originality is understood primarily as the absence, from the point of view of an informed consumer, of similarity of an industrial design applied for registration to the point of confusion with other already existing products
.

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Intellectual rights to objects of patent rights.
Subjects of patent rights . Intellectual rights to inventions, utility models and industrial designs include all three types of these rights:

1) personal non-property right (Article 1356 of the Civil Code) - right of authorship

.
This is the only personal non-property intellectual right that is recognized by the author
of the object of patent rights. The name of the author is indicated in the patent;

2) other intellectual rights - the right to obtain a patent (Article 1357 of the Civil Code) and the right to remuneration for the use of the service object of patent rights (clause 4 of Article 1370 of the Civil Code).

The right to obtain a patent is fundamentally important

- the right of the author or another individual or legal entity to whom this right has been transferred by agreement or by succession to file an application for a patent with the patent office.
The right to obtain a patent exists from the day the technical solution is created until the filing of an application for a patent. The transfer of the right to obtain a patent to other persons is not subject to state registration (since this right is not exclusive and is valid during the period preceding the state registration of the object of patent rights). The person exercising the right to obtain a patent is called the applicant
;

3) exclusive right

(Article 1358 of the Civil Code) is
an absolute property right
, which includes the rights of the patent holder: a) to use the object of patent rights in any way that does not contradict the law;
b) at its discretion, allow other persons to use the facility; c) prohibit other persons from using the facility. The patent is issued to the applicant. The patent holder
is the person who owns the exclusive right (first arising from him or transferred to him by agreement or by succession).

Duration of the exclusive patent right.

The validity period begins on the filing date of the patent application (“priority date”). The duration of the terms is different for each object of patent rights:

— for a utility model — 10 years;

- for an invention - 20 years (additional terms, no more than five years, exist only for inventions related to medicines and some fertilizers);

- for an industrial design - up to 25 years (five years of the initial period with the possibility of its extension every five years).

4

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Contents of the exclusive right to objects of patent rights.
Limitations of the exclusive right. The content of the exclusive right is the methods of using the object of patent rights (Article 1358 of the Civil Code):

— product use

, i.e. a material thing in which a patented invention, utility model or industrial design is applied:

a) import of the product into the territory of the Russian Federation;

b) manufacturing of the product;

c) introduction of the product into civil circulation (use, sale, offer for sale, etc.);

d) storage of the product for the purpose of introducing the product into circulation;

— using a patented method (applicable only to inventions):

a) implementation of a method that boils down to obtaining a product;

b) automatic implementation of the method during the operation of existing devices;

c) direct application of the method, i.e. carrying out a process of action that does not result in a new product.

Limitations of the exclusive right

patent holder (use of the result of intellectual activity without the consent of the copyright holder) are:

- free use of the object of patent rights, primarily the exhaustion of the exclusive right (clause 6 of Article 1359 of the Civil Code) and use of the object of patent rights to satisfy needs not related to business activities (clause 4 of Article 1359 of the Civil Code);

— use of the object of patent rights in the interests of national security (Article 1360 of the Civil Code);

— compulsory licensing (Article 1362 of the Civil Code);

— the right of prior use (Article 1361 of the Civil Code) and the right of subsequent use (clause 3 of Article 1400 of the Civil Code).

Let us dwell on the limitations that are inherent in the specificity of patent law.

Compulsory licensing (issuance of a compulsory license)

- this is providing an interested person with the opportunity, by a court decision and on the terms established by the court, to use a patented result, the exclusive right to which belongs to another person. Compulsory licensing is carried out against the will of the patent holder, but with the payment of remuneration to him.

There are two cases of compulsory licensing:

1) due to the patent holder’s failure to use the patented solution. The prerequisites for issuing a compulsory license in this case are:

- non-use or insufficient use by the patent holder of the object of patent rights within a certain period;

— lack of sufficient supply of relevant goods, works, services due to non-use of the facility;

2) in connection with the patenting of a dependent object of patent rights. A dependent invention, utility model or industrial design are such objects of patent rights, the use of which is impossible without the use of other objects already protected by a patent. Dependent solutions are a creative complication, an addition to existing solutions, resulting in a qualitatively new solution.

The prerequisites for issuing a compulsory license in this case are:

— presence of two patents (main and dependent);

— the significance of the dependent object in technical and economic terms.

In addition, in this case, cross-compulsory licensing

: If the holder of a dependent patent is granted a compulsory license, the holder of the basic patent also has the right to obtain a license to use the dependent subject matter.

Right of prior use

- this is the subjective right of a person who is not the patent holder (prior user) to free use of a solution that is protected by a patent, if the unprotected solution was created by the prior user in the process of parallel creativity before the priority date of the patented solution.

Prior use is known only to patent law, since only patent law recognizes that the protected solution is not unique (inimitable). But then the receipt of a patent by one of the authors of the idea may depend on an accident - the date of filing the application with the patent office. The right of prior use is established to counterbalance this formal approach. The right of prior use belongs only to the author of the unprotected solution, does not extend to third parties, and does not in itself discredit the patent.

Limits of the right of prior use:

the prior user, without the consent of the patent owner, does not have the right to expand the scope of use of the solution that existed before the priority date of the patented solution.

Right of after-use

- this is the subjective right of a person who is not a patent holder to freely use a solution in respect of which the validity of an early terminated patent has been restored.

The patent holder is required to pay an annual fee to maintain the issued patent. If fees for maintaining a patent are not paid, its validity is terminated, but can be restored. From the date of termination of the patent, the invention, utility model or industrial design is not granted legal protection. Consequently, during the specified period, the use of the facility is free for any person. If the patent is reinstated, the interests of such bona fide users must be protected.

The content of the right of after-use boils down to the fact that after the restoration of the patent, the after-user continues to use the object of patent rights without the consent of the patent owner (and without paying him remuneration) to the extent that existed during the period when the patent was terminated.

5

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Features of protection of rights to an invention.
In accordance with the established procedure for state registration of an invention, the grant of a patent may occur three to four years after filing the application. In connection with the publication of information about the application, an unlimited number of persons gain access to information about the solution itself, which is in the process of patenting. Protection of an invention occurs only after the applicant receives a patent, but the validity period of the exclusive right is counted from the priority date.

There is a need to protect the exclusive right to an invention retroactively. At the same time, it is necessary to take into account the lack of guilt in the actions of a person who cannot know whether the solution, information about which has been published, will be patented. For these purposes, temporary legal protection of the invention has been established (Article 1392 of the Civil Code). The essence of temporary protection comes down to the fact that the person using the invention in the period from the date of publication of information about the application to the date of publication of information about the grant of a patent pays the patent holder after receiving the patent monetary compensation (the amount of compensation is determined by agreement of the parties, and in case of a dispute - by the court) . Methods for protecting intellectual rights are not applied in this case. Payment of compensation does not provide grounds for using the invention without the permission of the patent owner in the period after publication of information about the grant of a patent.

Temporary legal protection is not provided for a utility model and industrial design (an application for these objects is not subject to publication, and the time period between the priority date and the issuance of a patent for these objects is much shorter than for an invention). Accordingly, the patent owner has the right to prohibit the use of these objects for the future after the grant of the patent, but is deprived of the opportunity to demand compensation for the previous time.

What does Chapter 72 of the Civil Code of the Russian Federation say?

As mentioned above, Chapter 72 of the Civil Code of the Russian Federation is considered the main source of patent law. It consists of 8 paragraphs.

The fundamental provisions of patent law in the Civil Code of the Russian Federation are given in §1. It reveals the essence of patent rights and introduces the concept of a patent. Also, this part of the Civil Code of the Russian Federation includes norms that define objects subject to patenting and explain who may be the author of these objects.

The next two paragraphs are devoted to more detailed regulation of patent rights. They determine who owns the right to register a patent, regulate the procedure for using and disposing of an object that is the result of intellectual work, as well as exclusive rights to it, and establish the validity period of patent rights.

§4 discusses issues related to the creation of objects in connection with the work of their developer or the performance of certain work in accordance with the terms of the contract.

Next are two paragraphs that reveal the specifics of obtaining, terminating and reinstating a patent.

§§7-8 addresses issues related to the protection of the rights of creators of objects and patent holders. The legal status of inventions that are considered secret is also determined.

Termination of patent

The grounds for declaring a received document invalid may be as follows:

1. In the event that the invention made does not comply with the rules in accordance with which the right to protect the invention is granted.
2. During registration, essential properties were added to the formula that were missing when the application was submitted. This may occur if changes were made after the registration process was started.
3. The decision to grant a patent may be reviewed if two or more applications for the same invention were filed simultaneously.
4. In the event that it turns out that the author indicated in the application cannot be considered as such, the patent may be terminated.

If the grounds listed here exist, an objection is submitted to the Chamber of Patent Disputes, which considers the issue and makes a decision on it.

You can challenge the issued document by filing a lawsuit.

The cancellation will result in the invalidation of the patent. If a patent is partially invalidated, the author is issued another document.

Objects of patent law

In patent law, as in any other legal field, its objects can be distinguished. This issue is regulated taking into account the rules defined in Art. 1349 of the Civil Code of the Russian Federation.

In the scientific and technical field, inventions and utility models should be considered objects of patent law. In design, such objects include industrial designs. An invention means a technical solution that can be attributed to a product (for example, a technical device) or a method (which allows you to determine the process of carrying out certain actions with an object of a material nature).

The material expression of a utility model is a specific device that embodies the technical solution obtained by its developer.

An industrial design should be considered as the result of the designer’s work. It determines the external design of a device used in industry or handicraft.

According to the legislation of the Russian Federation, the following cannot be recognized as objects of patent rights:

• Methods that allow human cloning, as well as the human clone itself.
• Methods by which human germline cells can be genetically modified.
• Research results concerning the use of human embryos in industry or for financial gain.
• Research results that are directed against the public interest, violate the principles of humanity and run counter to generally accepted moral standards.

In accordance with Part 5 of Art. 1350 of the Civil Code of the Russian Federation cannot be considered objects of patent law (if the application for a patent relates only to the objects listed here):

• Discoveries.
• Theories developed by researchers.
• Methods used in mathematics.
• Decisions affecting only the aesthetic design of objects.
• The rules by which any games are played.
• Methods of carrying out intellectual and economic activities.
• Computer software.
• Solutions that do nothing other than provide information.

The general provisions governing the legal protection of inventions do not apply to the results of selection (this restriction does not apply to microbiology) and the topology of integrated circuits.

An interesting fact from the field of patenting: to this day no one in the world knows who invented the fire hydrant, since the patent for this development burned down in a fire

Right of prior and subsequent use

A situation is possible when the invention made was used before the patent was filed by another person. This is called the right of prior use.

Typically, this situation arises among those inventors who, for some reason, did not apply for a patent. This use is legal.

When a patent has expired, its use is permitted until the inventor files for renewal of patent protection. This is called after-use.

Subjects of patent law

As a rule, a patent for the results of intellectual work is issued by:

• authors;
• authors' employers;
• successors of the authors and their employers.

In addition to these persons, subjects of patent law also include:

• Customers, if the object of patent law is created in accordance with the terms of the agreement.
• The Russian Federation as a state, regions of the Russian Federation, municipalities.

These entities may also become patent holders in cases provided for by agreement or provisions of regulations.

Patent attorneys can provide legal support to citizens and organizations in the field of patent law. These include persons competent in this field of activity who have successfully passed the relevant exam. They can perform their work as employees of organizations or as individual entrepreneurs.

Disputes related to patent rights are subject to consideration in the intellectual property rights court. At its core, it is a type of arbitration court and is authorized to consider disputes at the stages of the first and cassation instances.

Rospatent accepts applications from citizens and organizations, considers them and issues patents. It is one of the executive authorities operating at the federal level.

Patent duration

The countdown is made not from the date of registration, but from the date of filing the application.

Extension of the term of protection is carried out at the request of the copyright holder and is also subject to fees.

Principles of Patent Law

Each branch of law is built on certain principles. These are fundamental provisions in accordance with which the content and procedure for implementing legal regulation are determined. They are common to the entire legal industry.

The principles of patent law are as follows:

1. The patent holder is recognized as having the exclusive right to use and dispose of the patented result of intellectual work. Actions of other persons relating to this object are permissible only if they are expressly provided for by contract or law.
2. A balance must be struck between the public interest and the interests of the patent holder. In particular, the law limits the period during which patent protection is valid. After its completion, we can assume that the previously protected result of intellectual work becomes public property.
3. Only developments that have been declared patentable based on the results of an expert assessment can be protected by a patent.
4. The interests of both the authors of developments and patent holders are equally protected by law. At the same time, the interests of patent holders are protected even in the case when they have nothing to do with the direct development of objects.

Main differences between patent and copyright law

In both cases we are talking about the protection of intellectual property. However, the following differences exist:

1. Copyright law does not evaluate the novelty and practical use of an item.
2. It does not require a patent to prove its existence.
3. Copyright is for life and continues after death for 70 years.
4. The patent can be sold, the copyright is not alienable.

The issuance of a patent is most related to the economic sphere, and the presence of copyright is most related to the personal and social sphere.

Registration of patent rights

In order to patent the result of intellectual work, it is necessary to prepare an appropriate application. It should be submitted to Rospatent. Such an application can be submitted by either a citizen or a representative of a legal entity. From Art. 1247 of the Civil Code of the Russian Federation it follows that filing an application is allowed not only by persons interested in obtaining a patent. The necessary powers can be delegated to a representative, including a patent attorney.

Siberian Chemical Plant - four patents in a year!

Preparing an application involves writing an application and attaching the necessary documents to it. In accordance with the Administrative Regulations, approved. By order of the Ministry of Economic Development of the Russian Federation dated May 25, 2021 No. 315, registration of patent rights involves passing through the following stages:

1. Accepting the received application and completing its registration.
2. Checking whether the application fee has been paid by the interested party.
3. Conducting a formal examination of the submitted application.
4. Deciding on the appointment of a substantive examination of the application and its actual implementation.
5. Registration of an object of intellectual work in the register of inventions, industrial designs or utility models.
6. Carrying out the activities necessary to publish information about the grant of a patent. These data are subject to publication in the official bulletin of Rospatent.
7. Issuance of a patent to the person who submitted the application.

The procedure may differ slightly from the one given here depending on the subject matter of patent rights for which a patent is to be obtained. However, you will have to go through the above stages in any case, regardless of what kind of application is submitted.

The periods during which the patent is valid are defined in Part 1 of Art. 1363 Civil Code of the Russian Federation. Inventions are under patent protection for 20 years, utility models for 10 years, and industrial designs for 5 years.

Registration of inventions, models and samples

In order for an exclusive right to be protected by the state, an invention, model or design must be registered. Registration is handled by the Federal Service for Intellectual Property (Rospatent). This service is subordinate to the Ministry of Economic Development.

An application is filed to issue a patent. An application for patenting an invention or utility model must contain:

1. application for a patent indicating the author of the invention and the person entitled to receive the patent, the place of residence of both persons (or one, if they are the same);
2. description of the model or invention, revealing its essence;
3. formula based on description;
4. drawings, if needed;
5. abstract.

For an industrial design, the set of documents is different:

1. the application does not differ from the application when registering an invention or model;
2. a set of images that give a sufficient idea of ​​the aesthetic side of the sample;
3. drawing and configuration card, if necessary;
4. description of the industrial design.

Patent infringement

Art. 1406.1 of the Civil Code of the Russian Federation provides for civil liability for violation of exclusive rights to a patented object. The copyright holder, whose legitimate interests have not been respected, may, at his choice, present a demand to the violator for payment of compensation:

• From 10,000 rub. up to 5,000,000 rub. depending on what kind of violation was committed, taking into account its scale.
• In an amount equal to double the price set for the right to use the object developed by the author.

These requirements should be considered as an alternative to recovering from the violator losses incurred by the copyright holder as a result of the unlawful use of the results of his intellectual work.

If an organization has committed a gross violation of patent rights or has been repeatedly found to infringe on the legitimate interests of the copyright holder, it can be liquidated in court (Article 1253 of the Civil Code of the Russian Federation). On the same basis, the activities of an individual entrepreneur are subject to termination.

In addition, violation of patent rights under Art. 7.12 of the Code of Administrative Offenses of the Russian Federation is recognized as an administrative offense. Citizens who commit it can be fined 1,500–2,000 rubles, officials – 10,000–20,000 rubles, and organizations – 30,000–40,000 rubles. In this case, counterfeit goods and funds used to commit the offense will be confiscated from the guilty persons.

If illegal actions have caused major damage to the copyright holder, the offenders are subject to criminal liability under Art. 147 of the Criminal Code of the Russian Federation. In this case, they will face punishment up to placement in a colony for up to 5 years.

Protection of inventive rights in the Russian Federation

In case of violation of exclusive rights to industrial property, sanctions of 3 types are imposed:

• There are 2 types of compensation provided for by the Civil Code (at the choice of the copyright holder): in the amount of 10 thousand - 5 million rubles; in the amount of double the price for the lawful use of the patent.
• Under the criminal code, if the illegal use of a patent caused damage on a large scale: a fine of up to 250 thousand rubles. or in the amount of the offender’s income for 18 months; compulsory (up to 480 hours) or forced (up to 2 years) work. When a crime is committed by a group of persons: a fine of 100-300 thousand rubles, in the amount of income for up to 2 years; forced labor (up to 5 years); arrest for 6 months or imprisonment for up to 5 years.
• Fines in favor of the state under the administrative code: physical. persons - 1500-2000 rubles, officials - 10-20 thousand rubles, legal entities. persons – 30-40 thousand rubles. These fines may also be imposed when the essence of a patent is disclosed before its registration without the consent of the author (applicant), when authorship is assigned or when it is forced to do so. Administrative and civil penalties may be applied simultaneously to the violator.

Protection of exclusive rights is carried out in court. An extrajudicial (administrative) procedure is provided for challenging decisions of Rospatent when registering a patent. To do this, you need to contact the Chamber of Patent Disputes.

Legal protection for technical solutions is provided only if they have successfully passed state registration with Rospatent. Until this point, third parties can use them without adverse consequences. “Provisional” protection is provided from the date the application is filed until the patent is issued.