Topic 26. PATENT LAW

Patent law can be viewed in both an objective and a subjective sense. Patent law in an objective sense is a set of legal norms regulating relations arising in connection with the creation and use of inventions, utility models and industrial designs. Patent law in the subjective sense is a personal non-property or property right of a particular subject relating to a particular invention, utility model or sample.

The sources of patent law are the Civil Code, other acts containing the norms of patent law, in particular, those issued by the federal executive body responsible for legal regulation in the field of intellectual property (now the Ministry of Education and Science of Russia). The sources of patent law are also:

▪ Paris Convention of 1883 for the Protection of Industrial Property (Russia has been a party to it since 1965);

▪ Patent Cooperation Treaty, concluded in Washington on June 19, 1970 (the Russian Federation acceded to it on March 29, 1978);

▪ Eurasian Patent Convention of 1995 (ratified by Federal Law No. 01.06.1995-FZ dated June 85, 27; entered into force for the Russian Federation on September 1995, XNUMX).

Basic provisions of patent law. Chapter is devoted to the Institute of Patent Law. 72 Civil Code. § 1 of this chapter sets out the main provisions relating to patent rights. In particular, in accordance with paragraph 1 of Art. 1345 of the Civil Code, intellectual rights to inventions, utility models and industrial designs are patent rights. In accordance with paragraph 2 of this article, the author of an invention, utility model or industrial design has the exclusive right and the right of authorship. In cases provided for by the Civil Code, the author of an invention, utility model or industrial design also has other rights, including the right to obtain a patent, the right to remuneration for the use of a service invention, utility model or industrial design.

According to the norm of art. 1346 of the Civil Code on the territory of the Russian Federation, exclusive rights to inventions, utility models and industrial designs certified by patents issued by the federal executive authority for intellectual property (Rospatent) or patents valid on the territory of the Russian Federation in accordance with international treaties of the Russian Federation are recognized.

The author of an invention, utility model or industrial design is a citizen whose creative work created the corresponding result of intellectual activity.

In Art. 1349 of the Civil Code defines the objects of patent rights. These are:

1) the results of intellectual activity in the scientific and technical field that meet the requirements for inventions and utility models established in the Civil Code;

2) the results of intellectual activity in the field of artistic design that meet the requirements established by the Civil Code for industrial designs.

The provisions of the Civil Code apply to inventions containing information constituting a state secret (secret inventions), unless otherwise provided by the special rules of Art. 1401 - 1405 of this Code and other legal acts issued in accordance with them. Utility models and industrial designs containing information constituting a state secret are not granted legal protection in accordance with the Civil Code.

They cannot be objects of patent rights (clause 4 of article 13 49 of the Civil Code):

▪ methods of human cloning;

▪ methods for modifying the genetic integrity of human germline cells;

▪ use of human embryos for industrial and commercial purposes;

▪ other decisions that are contrary to public interests, principles of humanity and morality.

In Art. 1350 - 1352 of the Civil Code defines the conditions for the patentability of an invention, utility model and industrial design.

So, in paragraph 1 of Art. 1350 of the Civil Code contains the definition of the invention. In accordance with this definition, a technical solution is protected as an invention in any field related to a product (in particular, a device, a substance, a strain of a microorganism, a plant or animal cell culture) or a method (the process of performing actions on a material object using material means). An invention is granted legal protection if it (paragraph 2, clause 1 of the said article):

▪ is new;

▪ has an inventive step;

▪ industrially applicable.

An invention is new if it is not known from the prior art. An invention involves an inventive step if it does not clearly follow from the prior art for a specialist. At the same time, the state of the art includes any information that has become publicly available in the world before the priority date of the invention. Finally, an invention is industrially applicable if it can be used in industry, agriculture, health care, other sectors of the economy or in the social sphere.

In accordance with paragraph 5 of Art. 1350 GK are not inventions:

1) discoveries;

2) scientific theories and mathematical methods;

3) decisions relating only to the appearance of products and aimed at satisfying aesthetic needs;

4) rules and methods of games, intellectual or economic activity;

5) computer programs;

6) decisions consisting only in the provision of information.

The possibility of attributing these objects to inventions is excluded only in the case when the application for the grant of a patent for an invention concerns these objects as such.

According to paragraph 6 of Art. 1350 of the Civil Code does not provide legal protection as an invention:

▪ plant varieties, animal breeds and biological methods for their production, with the exception of microbiological methods and products obtained by such methods;

▪ topologies of integrated circuits.

In Art. 1351 of the Civil Code defines a utility model. According to this definition, a technical solution relating to a device is protected as a utility model. A utility model is granted legal protection if it is new and industrially applicable. Legal protection is not granted as a utility model:

▪ decisions relating only to the appearance of products and aimed at satisfying aesthetic needs;

▪ topologies of integrated circuits.

In accordance with Art. 1352 of the Civil Code, as an industrial design, an artistic and design solution of an industrial or handicraft product, which determines its appearance, is protected. An industrial design is granted legal protection if it is new and original by its essential features. The essential features of an industrial design include features that determine the aesthetic and (or) ergonomic features of the appearance of the product, in particular the shape, configuration, ornament and combination of colors. An industrial design is new if the totality of its essential features, reflected in the images of the product and listed in the list of essential features of the industrial design (clause 2 of article 1377 of the Civil Code), is not known from the information that became publicly available in the world before the priority date of the industrial design. An industrial design is original if its essential features are due to the creative nature of the features of the product.

Legal protection as an industrial design is not granted:

▪ decisions determined solely by the technical function of the product;

▪ architectural objects (except for small architectural forms), industrial, hydraulic and other stationary structures;

▪ objects of unstable shape made of liquid, gaseous, granular or similar substances.

The exclusive right to an invention, utility model or industrial design is recognized and protected subject to the state registration of the corresponding invention, utility model or industrial design, on the basis of which the federal executive authority for intellectual property issues a patent for the invention, utility model or industrial design (Article 1353 GK). In accordance with Art. 1354 of the Civil Code a patent for an invention, utility model or industrial design certifies:

1) the priority of an invention, utility model or industrial design;

2) authorship;

3) the exclusive right to an invention, utility model or industrial design.

Protection of intellectual property rights to an invention or utility model is granted on the basis of a patent to the extent determined by the claims contained in the patent or utility model. The description and drawings may be used to interpret the claims and utility model claims (clause 2 of article 1375 and clause 2 of article 1376 of the Civil Code). Protection of intellectual rights to an industrial design is provided on the basis of a patent in the amount determined by the totality of its essential features reflected in the images of the product and listed in the list of essential features of the industrial design (clause 2 of article 1377 of the Civil Code).

Norm Art. 1355 of the Civil Code provides for state incentives for the creation and use of inventions, utility models and industrial designs, carried out in relation to their authors, as well as patent holders and licensees in the form of providing them with benefits in accordance with the legislation of the Russian Federation.

Patent rights. § 2 Ch. is devoted to the direct regulation of patent rights. 72 GK. These rights include:

▪ right of authorship;

▪ the right to obtain a patent;

▪ exclusive right to an invention, utility model or industrial design.

In accordance with Art. 1356 of the Civil Code, the author of an invention, utility model or industrial design has the right of authorship, which in its content and properties is similar to the right of authorship for works of science, literature or art.

The right to obtain a patent for an invention, utility model or industrial design initially belongs to the author of the invention, utility model or industrial design. This right may pass to another person (successor) or be transferred to him in cases and on the grounds established by law, including by way of universal succession, or under an agreement, including under an employment contract. An agreement on the alienation of the right to obtain a patent for an invention, utility model or industrial design must be concluded in writing. Failure to comply with the written form entails the invalidity of the contract. Unless otherwise provided by agreement of the parties to the agreement on the alienation of the right to obtain a patent for an invention, utility model or industrial design, the risk of non-patentability shall be borne by the acquirer of such a right (Article 1357 of the Civil Code).

According to the norm of art. 1358 of the Civil Code, the patent owner has the exclusive right to use an invention, utility model or industrial design in accordance with Art. 1229 of the Civil Code in any way that does not contradict the law (exclusive right to an invention, utility model or industrial design), including the methods indicated below. The patent owner may dispose of the exclusive right to an invention, utility model or industrial design.

In accordance with paragraph 2 of Art. 1358 of the Civil Code, the use of an invention, utility model or industrial design is considered, in particular:

▪ import into the territory of the Russian Federation, production, use, offer for sale, sale, other introduction into civil circulation or storage for these purposes of a product in which an invention or utility model is used, or a product in which an industrial design is used;

▪ performing the same actions in relation to a product obtained directly by the patented method. If a product obtained by a patented process is new, an identical product is considered to have been obtained by using a patented process unless proven otherwise;

▪ performing the actions provided for in the previous paragraph in relation to a device, during the functioning (operation) of which, in accordance with its purpose, a patented method is automatically carried out;

▪ carrying out a method in which the invention is used, in particular by applying this method.

If the holders of a patent for one invention, one utility model or one industrial design are two or more persons, the rules of paragraphs 2 and 3 of Art. 1348 of the Civil Code relating to co-authorship, regardless of whether any of the patent holders is the author of this result of intellectual activity.

In accordance with Art. 1360 of the Civil Code, the Government of the Russian Federation has the right, in the interests of defense and security, to allow the use of an invention, utility model or industrial design without the consent of the patent owner, notifying him of this as soon as possible and paying him proportionate compensation.

A person who, prior to the priority date of an invention, utility model or industrial design (Articles 1381 and 1382 of the Civil Code) in good faith used an identical solution created independently of the author on the territory of the Russian Federation or made the necessary preparations for this, retains the right to further free use of an identical solution without extension the scope of such use (the right of prior use). This right may be transferred to another person only together with the company where the identical solution has been used or the necessary preparations have been made.

The patent owner is not only entitled, but also obliged (in order to avoid obstructing scientific and technological progress) to use an invention, utility model or industrial design. Accordingly, the provision of art. 1362 of the Civil Code provides for the possibility of granting a compulsory license for these objects. According to this article, if an invention or industrial design is not used or insufficiently used by the patent owner within four years from the date of issue of the patent, and a utility model - within three years from the date of issue of the patent, which leads to an insufficient supply of the relevant goods, works or services on the market , any person wishing and ready to use such an invention, utility model or industrial design, if the patent owner refuses to conclude a license agreement with this person on the terms corresponding to established practice, has the right to file a lawsuit against the patent owner for a compulsory simple (non-exclusive) license for the use on the territory of the Russian Federation of an invention, utility model or industrial design.

If the patent owner cannot use an invention or utility model without using the invention or utility model for which a patent has been issued to another person who has refused to conclude a license agreement with him, he has the right to file a lawsuit against the owner of this patent for compulsory idle time. (non-exclusive) license to use the relevant invention or utility model on the territory of the Russian Federation. The right to use the invention obtained under this license cannot be transferred to other persons, except in the case of alienation of the patent for this invention. If a compulsory simple (non-exclusive) license is granted on the above grounds, the holder of a patent for an invention or utility model, the right to use which is granted on the basis of the said license, also has the right to obtain a simple (non-exclusive) license to use a dependent invention, in connection with which a compulsory simple (non-exclusive) license was issued, on conditions consistent with established practice.

The terms of validity of exclusive rights to an invention, utility model and industrial design are defined in Art. 1363 GK. In accordance with this article, the period of validity of the exclusive right to an invention, utility model, industrial design and the patent certifying this right is calculated from the date of filing the initial application for a patent with the federal executive body for intellectual property and, subject to the requirements established by the Civil Code, is:

▪ 20 years - for inventions;

▪ 10 years - for utility models;

▪ 15 years - for industrial designs.

The validity period of an exclusive right and a patent certifying this right may be extended by Rospatent at the request of the patent holder:

▪ in relation to a utility model for no more than three years;

▪ in relation to an industrial design - for no more than 10 years.

Upon the expiration of the exclusive right, an invention, utility model or industrial design shall enter the public domain.

Disposal of the exclusive right to an invention, utility model or industrial design. The rules on the disposal of the exclusive right to an invention, utility model or industrial design are contained in § 3 of Chapter 72 of the Civil Code. In particular, according to Art. 1365 of the Civil Code, such an order can be carried out by concluding an agreement between the patent holder and the acquirer of the patent on the alienation of the above right (agreement on the alienation of the patent). A special feature of concluding an agreement of this kind is the possibility of making a public proposal to conclude an agreement on the alienation of a patent for an invention. In accordance with Art. 1366 of the Civil Code, an applicant who is the author of an invention, when filing an application for a patent for an invention, may attach to the application documents a statement that if a patent is issued, he undertakes to enter into an agreement on the alienation of the patent on terms consistent with established practice with any citizen of the Russian Federation or the Russian legal entity who was the first to express such a desire and notify the patent holder and Rospatent about it. If there is such an application, the patent fees provided for by the Civil Code in relation to the application for a patent for an invention and in relation to the patent issued under such an application are not levied on the applicant. Rospatent publishes information about this application in the official bulletin.

A person who has concluded with the patent owner on the basis of his application an agreement on the alienation of a patent for an invention is obliged to pay all patent fees from which the applicant (patent owner) was exempted. In the future, patent fees are paid in the prescribed manner. In order to register an agreement on the alienation of a patent with Rospatent, a document confirming the payment of all patent fees from which the applicant (patent holder) was exempted must be attached to the application for registration of the agreement.

If, within two years from the date of publication of information on the grant of a patent for an invention in respect of which the above statement was made, Rospatent has not received a written notification of the desire to conclude an agreement on the alienation of a patent, the patent owner may file a petition with the specified federal body to withdraw his application . In this case, the patent fees provided for by the Civil Code, from which the applicant (patent holder) was exempted, are payable. In the future, patent fees are paid in the prescribed manner. Rospatent publishes in the official bulletin information about such withdrawal of the application.

The disposal of the exclusive right to an invention, utility model or industrial design is also possible through the conclusion of an appropriate license agreement (Article 1367 of the Civil Code). The patent holder may submit an application to Rospatent on the possibility of granting any person the right to use an invention, utility model or industrial design (open license). In this case, the amount of the patent fee for maintaining a patent for an invention, utility model or industrial design in force is reduced by 50%, starting from the year following the year of publication by Rospatent of information about an open license.

The terms of the license under which the right to use an invention, utility model or industrial design may be granted to any person shall be communicated by the patent holder to Rospatent, which shall publish, at the expense of the patent holder, the relevant information on the open license. The patent owner is obliged to conclude a license agreement with a person who has expressed a desire to use the said invention, utility model or industrial design on the terms of a simple (non-exclusive) license.

If within two years from the date of publication of information on an open license, the patent owner has not received written proposals to conclude a license agreement on the terms contained in his application, he may file a petition with Rospatent to withdraw his application for an open license. In this case, the patent fee for maintaining the patent in force is subject to additional payment for the period elapsed from the date of publication of information about the open license, and subsequently paid in full, and Rospatent publishes in the official bulletin information about the withdrawal of the application (Article 1368 of the Civil Code).

An agreement on the alienation of a patent, a license agreement, as well as other agreements through which the disposal of the exclusive right to an invention, utility model or industrial design is carried out, are concluded in writing and are subject to state registration by the federal executive body for intellectual property (Article 1369 of the Civil Code).

Invention, utility model and industrial design created in connection with the performance of an official assignment or during the performance of work under a contract. Relations regarding inventions, utility models and industrial designs created in connection with the performance of an official assignment or during the performance of work under a contract are regulated by the norms of § 4 Ch. 72 Civil Code. So, in accordance with paragraph 1 of Art. 1370 of the Civil Code, an invention, utility model or industrial design created by an employee in connection with the performance of his job duties or a specific assignment of the employer is recognized, respectively, as a service invention, service utility model or service industrial design. In accordance with paragraph 2 of this article, the right of authorship to a service invention, service utility model or service industrial design belongs to the employee (author). And according to the norm of paragraph 3 of this article, the exclusive right to the specified results of intellectual activity and the right to obtain a patent belong to the employer, unless otherwise provided by an employment or other agreement between the employee and the employer.

Unless otherwise agreed in the contract between the employer and the employee, the employee must notify the employer in writing of the creation, in connection with the performance of his labor duties or a specific task of the employer, of such a result, in respect of which legal protection is possible. If the employer, within four months from the date of notification by the employee, does not file an application for a patent for the relevant service invention, service utility model or service industrial design with Rospatent, does not transfer the right to obtain a patent for them to another person or does not inform the employee about the preservation of information about the corresponding result of intellectual activity in secret, the right to obtain a patent for such an invention, utility model or industrial design belongs to the employee. In this case, the employer, during the term of the patent, has the right to use the service invention, service utility model or service industrial design in its own production under the terms of a simple (non-exclusive) license with the payment of compensation to the patent owner, the amount, conditions and procedure for payment of which are determined by the contract between the employee and the employer. and, in the event of a dispute, by the court.

If the employer obtains a patent for a service invention, service utility model or service industrial design, or decides to keep information about such an invention, utility model or industrial design secret and informs the employee about it, or transfers the right to obtain a patent to another person, or does not receives a patent on the application filed by him for reasons depending on him, the employee is entitled to remuneration. The amount of remuneration, the conditions and procedure for its payment by the employer are determined by the agreement between him and the employee, and in the event of a dispute - by the court.

The Government of the Russian Federation has the right to establish minimum rates of remuneration for service inventions, service utility models, service industrial designs (clause 4 of article 1370 of the Civil Code).

The invention, utility model and industrial design created in the course of performing work under a contract is referred to in Art. 1371 GK. According to this article, in the case when an invention, utility model or industrial design is created in the performance of a work contract or contract for the performance of research, development or technological work that did not directly provide for their creation, the right to obtain a patent and the exclusive right to such an invention, utility model or industrial design belongs to the contractor (performer), unless otherwise provided by the contract between him and the customer. In this case, the customer has the right, unless otherwise provided by the contract, to use the invention, utility model or industrial design created in this way for the purposes for which the relevant contract was concluded, under the terms of a simple (non-exclusive) license during the entire term of the patent without payment for this is the use of additional rewards. When the contractor (executor) transfers the right to obtain a patent or alienates the patent itself to another person, the customer retains the right to use the invention, utility model or industrial design on the specified conditions.

In the event that, in accordance with an agreement between the contractor (performer) and the customer, the right to obtain a patent or the exclusive right to an invention, utility model or industrial design has been transferred to the customer or to a third party specified by him, the contractor (performer) has the right to use the created invention, utility model or an industrial design for own needs on the terms of a free simple (non-exclusive) license for the entire duration of the patent, unless otherwise provided by the agreement. The author of the above invention, utility model and / or industrial design, who is not a patent holder, is paid a fee in accordance with paragraph 4 of Art. 1370 GK.

In Art. 1372 of the Civil Code regulates relations related to the creation of an industrial design by order. A feature of these relations is that, unless otherwise provided by the contract between the contractor (performer) and the customer, the right to obtain a patent and the exclusive right to such an industrial design belongs to the customer.

The rules relating to an invention, utility model, industrial design created in the course of performing work under a state or municipal contract are contained in Art. 1373 GK.

Obtaining a patent. The procedure for obtaining a patent is defined in § 5 of Chapter 72 of the Civil Code. Establishing the priority of an invention, utility model or industrial design is important for protecting the interests of authors. Priority is established by the date of filing an application for an invention, utility model or industrial design with Rospatent (clause 1 of Article 1381 of the Civil Code).

In accordance with paragraph 1 of Art. 1382 of the Civil Code, the priority of an invention, utility model or industrial design may be established by the date of filing the first application for an invention, utility model or industrial design in a state party to the Paris Convention for the Protection of Industrial Property (convention priority), subject to submission to Rospatent:

▪ applications for an invention or utility model - within 12 months from the specified date;

▪ applications for an industrial design - within six months from the specified date.

If, due to circumstances beyond the control of the applicant, the application for which conventional priority is claimed could not be filed within the specified period, this period may be extended by Rospatent, but not more than for two months.

An applicant who wishes to exercise the right of conventional priority in relation to an application for a utility model or industrial design must inform Rospatent before the expiration of two months from the date of filing such an application and submit a certified copy of the first application specified in paragraph 1 of Art. 1382 of the Civil Code, before the expiration of three months from the date of filing with this federal body of an application for which conventional priority is requested. An applicant who wishes to exercise the right of conventional priority in relation to an invention application must notify Rospatent and submit to this federal agency a certified copy of the first application within 16 months from the date of its filing with the patent office of a state party to the Paris Convention for the Protection of Industrial Property.

If a certified copy of the first application is not submitted within the specified period, the right of priority may nevertheless be recognized by Rospatent at the request of the applicant submitted by him to this authority before the expiration of the specified period, provided that a copy of the first application is requested by the applicant in the patent office in which the first application was filed , within 14 months from the date of filing the first application and submitted to Rospatent within two months from the date of its receipt by the applicant. The said federal body has the right to require the applicant to submit a translation into Russian of the first application for an invention only in the case when the verification of the validity of the claim to the priority of the invention is connected with the establishment of the patentability of the claimed invention.

According to paragraph 1 of Art. 1383 of the Civil Code, if during the examination it is established that different applicants filed applications for identical inventions, utility models or industrial designs and these applications have the same priority date, a patent for an invention, utility model or industrial design can be issued only for one of such applications to a person determined by agreement between the applicants. The applicants must inform Rospatent about the agreement reached by them within 12 months from the date of receipt of the relevant notification from this authority. When a patent is granted under one of the applications, all the authors indicated in it are recognized as co-authors in respect of identical inventions, utility models or industrial designs. If, within the prescribed period, this federal body does not receive from the applicants the said message or a request for an extension of the established period in the manner provided for in paragraph 5 of Art. 1386 of the Civil Code, applications are recognized as withdrawn.

Examination of a patent application. According to an application for an invention received by Rospatent, a formal examination is carried out, during which the availability of documents provided for in paragraph 2 of Art. 1 375 Civil Code, and their compliance with established requirements. In the case when the applicant submits additional materials to the application for an invention, in accordance with paragraph 1 of Art. 1378 of the Civil Code, it is checked whether they do not change the essence of the claimed invention. Additional materials in the part that change the essence of the claimed invention are not taken into account when considering an application for an invention, but can be submitted by the applicant as an independent application, of which Rospatent notifies the applicant. The specified body notifies the applicant of the positive result of the formal examination and the date of filing the application for the invention immediately after completion of the formal examination.

In accordance with Art. 1385 of the Civil Code, Rospatent, after 18 months from the date of filing an application for an invention that has passed a formal examination with a positive result, publishes information about the application for an invention in the official bulletin. The composition of published information is determined by the federal executive body responsible for legal regulation in the field of intellectual property (currently these functions are performed by the Russian Ministry of Education and Science). Moreover, the author of the invention has the right to refuse to be mentioned as such in the published information about the application for the invention.

At the request of the applicant, filed before the expiration of 12 months from the date of filing an application for an invention, Rospatent may publish information about the application before the expiration of 18 months from the date of its filing.

Publication is not made if, before the expiration of 12 months from the date of filing an application for an invention, it was withdrawn or recognized as withdrawn, or the invention was registered on its basis (clause 1 of article 1385 of the Civil Code).

Any person after the publication of information about the application for an invention has the right to familiarize himself with the documents of the application, if the application is not withdrawn and is not recognized as withdrawn on the date of publication of information about it (clause 2 of article 1385 of the Civil Code).

At the request of the applicant or third parties, which may be filed with Rospatent when filing an application for an invention or within three years from the date of filing this application, and subject to completion of the formal examination of this application with a positive result, an examination of the application for an invention is carried out on the merits. The specified body notifies the applicant about the received petitions of third parties. The deadline for filing a request for substantive examination of an application for an invention may be extended by Rospatent at the request of the applicant filed before the expiration of this period, but not more than for two months, provided that a document confirming the payment of the patent fee is submitted along with the request. If a request for substantive examination of an application for an invention is not filed within the established time limit, the application shall be deemed withdrawn.

Examination of an application for an invention on the merits includes:

1) information search in relation to the claimed invention to determine the state of the art, in comparison with which the novelty and inventive step of the invention will be assessed;

2) verification of compliance of the claimed invention with the conditions of patentability provided for in Art. 1350 GK.

The procedure for conducting an information search and submitting a report on it is established by the federal executive body in charge of legal regulation in the field of intellectual property (Ministry of Education and Science of Russia). Upon the expiration of six months from the date of commencement of the substantive examination of an application for an invention, Rospatent sends to the applicant a report on information search, unless such an application claims a priority earlier than the filing date of the application, and if a request for the examination of an application for an invention on the merits was filed at the time of filing applications.

The applicant and third parties, without submitting a request for an examination of an application for an invention on the merits, have the right to apply for an information search on an application for an invention that has passed a formal examination with a positive result to determine the state of the art, in comparison with which the assessment of novelty and inventiveness will be carried out. level of the claimed invention.

According to Art. 1387 of the Civil Code, if as a result of the examination of the application for an invention on the merits it is established that the claimed invention, expressed by the formula proposed by the applicant, complies with the conditions of patentability provided for in Art. 1350 of the Civil Code, Rospatent decides to grant a patent for an invention with this formula. The decision indicates the priority date of the invention. If during the examination of an application for an invention on the merits it is established that the claimed invention, expressed by the formula proposed by the applicant, does not meet the specified conditions of patentability, Rospatent decides to refuse to grant a patent. Decisions of the said federal body to refuse to grant a patent for an invention, to grant a patent for an invention, or to recognize an application for an invention as withdrawn may be challenged by the applicant by filing an objection with the Chamber for Patent Disputes within six months from the date of receipt by him of the decision or requested from this federal body. body of copies of materials opposed to the application and specified in the decision to refuse to grant a patent, provided that the applicant requested copies of these materials within two months from the date of receipt of the decision taken on the application for an invention. The applicant has the right to get acquainted with all materials related to the patenting of inventions, to which there is a reference in requests, reports, decisions, notifications or other documents received by him from this federal body. Copies of the patent documents requested by the applicant in Rospatent are sent to him within a month from the date of receipt of the request (Article 1388 of the Civil Code).

In Art. 1389 of the Civil Code provides for the possibility of restoring missed deadlines related to the examination of an application for an invention, at the request filed by the applicant in the manner prescribed by this article, within 12 months from the date of expiration of the established period.

Unlike an application for an invention, only a formal examination is carried out on an application for a utility model. However, the applicant and third parties have the right to request an information search in relation to the claimed utility model in order to determine the state of the art against which the patentability of the utility model can be assessed. In the event that, when considering an application for a utility model in Rospatent, it is established that the information contained in it constitutes a state secret, the application documents are classified in the manner prescribed by the legislation on state secrets. At the same time, the applicant is informed about the possibility of withdrawing the application for a utility model or converting it into an application for a secret invention. Consideration of such an application is suspended until the relevant application is received from the applicant or until the application is declassified (Article 1390 of the Civil Code).

In accordance with Art. 1391 of the Civil Code of an application for an industrial design, both a formal examination and an examination of the application on the merits are carried out.

An invention for which an application has been filed with Rospatent, from the date of publication of information about the application (clause 1 of Article 1385 of the Civil Code) until the date of publication of information on the grant of a patent (Article 1394 of the Civil Code), is granted temporary legal protection in the scope of the published claims, but no more than to the extent determined by the formula contained in the decision of this body to grant a patent for an invention. The person who uses the claimed invention during the above period shall pay the patent owner, after receiving the patent, monetary compensation. The amount of compensation is determined by agreement of the parties, and in the event of a dispute - by the court (Article 1392 of the Civil Code).

Based on the decision to grant a patent for an invention, utility model or industrial design, Rospatent, in accordance with Art. 1393 of the Civil Code, enters an invention, utility model or industrial design into the relevant state register, namely: into the State Register of Inventions of the Russian Federation, the State Register of Utility Models of the Russian Federation and the State Register of Industrial Designs of the Russian Federation, respectively, and issues a patent for an invention, utility model or industrial model. If a patent was requested in the name of several persons, they are issued one patent (clause 1).

State registration of an invention, utility model or industrial design and the grant of a patent are subject to the payment of the relevant patent fee. If the applicant fails to submit, in accordance with the established procedure, a document confirming the payment of the patent fee, the registration of the invention, utility model or industrial design and the grant of a patent shall not be carried out, and the corresponding application shall be recognized as withdrawn.

The form of a patent for an invention, utility model, industrial design and the composition of the information indicated in it are established by the Ministry of Education and Science of Russia. The specified federal body publishes in the official bulletin information about any changes in entries in state registers.

In accordance with paragraph 1 of Art. 1394 SC Rospatent publishes in the official bulletin information on the grant of a patent for an invention, utility model or industrial design, including:

1) the name of the author (if the author has not refused to be mentioned as such);

2) the name or denomination of the patent owner;

3) the name and claims of the invention or utility model or a list of essential features of an industrial design and its image.

After the publication of information on the grant of a patent for an invention, utility model or industrial design, any person has the right to familiarize himself with the application documents and the information search report (clause 2 of article 1394 of the Civil Code).

A patent for an invention, utility model or industrial design issued by Rospatent is valid only on the territory of Russia. To ensure the protection of an object abroad for commercial purposes, it is necessary to patent it in other countries.

As provided by Art. 1395 of the Civil Code, an application for a patent for an invention or utility model created in the Russian Federation may be filed in a foreign state or with an international organization after six months from the date of filing the relevant application with Rospatent, if the applicant is not notified of the that the application contains information constituting a state secret. An application for an invention or utility model may be filed earlier than the specified period, but after the verification, at the request of the applicant, of the presence in the application of information constituting a state secret. The procedure for conducting such an inspection is established by the Government of the Russian Federation.

Patenting in accordance with the Patent Cooperation Treaty or the Eurasian Patent Convention of an invention or utility model created in the Russian Federation is allowed without prior filing of the corresponding application with Rospatent, if the application in accordance with the Patent Cooperation Treaty (international application) is filed with this federal body as to the receiving Office and the Russian Federation as the state in which the applicant intends to obtain a patent, and the Eurasian application is filed through this federal body.

According to Art. 1396 of the Civil Code in the case of filing an international application for an invention or utility model in accordance with the Patent Cooperation Treaty, in which the Russian Federation is indicated as the state in which the applicant intends to obtain a patent for an invention or utility model, Rospatent begins consideration of this application after 31 months from the date of the priority claimed in the international application. At the request of the applicant, the international application is considered before the expiration of this period, provided that the application is filed in Russian or the applicant submits to Rospatent a translation into Russian of the application for a patent for an invention or utility model contained in the international application filed in another language before the expiration of the specified period. language. The submission to Rospatent of a translation into Russian of the application for the grant of a patent for an invention or utility model contained in the international application may be replaced by the submission of the application for the grant of a patent provided for by the Civil Code. If these documents are not submitted within the established time limit, the validity of the international application in respect of the Russian Federation in accordance with the Patent Cooperation Treaty shall be terminated.

The term provided for in paragraph 3 of Art. 1378 of the Civil Code for making changes to the application documents, is calculated from the day the consideration of the international application by Rospatent begins.

Consideration of a Eurasian application for an invention, which, in accordance with the Eurasian Patent Convention, has the force of an application for an invention provided for by the Civil Code, is carried out starting from the day when Rospatent received a certified copy of the Eurasian application from the Eurasian Patent Office. The term provided for in paragraph 3 of Art. 1378 of the Civil Code for making changes to the application documents, is calculated from the same date.

Publication in Russian of an international application by the International Bureau of the World Intellectual Property Organization in accordance with the Patent Cooperation Treaty or publication of a Eurasian application by the Eurasian Patent Office in accordance with the Eurasian Patent Convention replaces the publication of information about the application under Art. 1385 GK.

In the event that a Eurasian patent and a patent of the Russian Federation for identical inventions or an identical invention and utility model having the same priority date belong to different patent holders, such inventions or invention and utility model may only be used in compliance with the rights of all patent holders (Art. 1397 GK). If a Eurasian patent and a patent of the Russian Federation for identical inventions or identical inventions and utility models having the same priority date belong to the same person, this person may grant any person the right to use such inventions or inventions and utility models under license agreements concluded on the basis of these patents.

Termination and restoration of a patent. The rules on termination and restoration of a patent are contained in § 6 of Chapter. 72 Civil Code.

A patent for an invention, utility model or industrial design may be invalidated in whole or in part during the period of its validity in the cases specified in paragraph 1 of Art. 1398 GK. A patent is invalidated on the basis of a decision of Rospatent or a court decision that has entered into force.

According to the norm of art. 1399 of the Civil Code, a patent for an invention, utility model or industrial design is terminated early:

1) on the basis of an application submitted by the patent owner to Rospatent - from the date of receipt of the application;

2) in case of non-payment of the patent fee for maintaining the patent in force within the established period - from the date of expiration of the established period for payment of such fee.

However, according to Art. 1400 of the Civil Code in relation to the second case, it is possible to restore the validity of a patent, provided that the person who owned the patent submits an appropriate petition to Rospatent within three years from the date of expiration of the payment of the patent fee, but before the expiration of the patent validity period provided for in the Civil Code and the attachment of a document confirming payment in the established amount of the patent fee for the restoration of the patent.

A person who, during the period between the date of termination of a patent for an invention, utility model or industrial design and the date of publication in the official bulletin of Rospatent of information on the restoration of the patent, began to use the invention, utility model or industrial design or made the necessary preparations for this during the specified period, retains the right to its further gratuitous use without expanding the scope of such use (the right of subsequent use).

In § 7 ch. 72 of the Civil Code establishes the features of the legal protection and use of secret inventions.

Norms § 8 ch. 72 of the Civil Code are devoted to the protection of the rights of authors and patent holders. So, according to Art. 1406 of the Civil Code, disputes related to the protection of patent rights are considered by the court. Such disputes include, in particular:

1) disputes about the authorship of an invention, utility model, industrial design;

2) on the establishment of the patent owner;

3) on violation of the exclusive right to an invention, utility model or industrial design;

4) on the conclusion, execution, amendment and termination of agreements on the transfer of an exclusive right (alienation of a patent) and license agreements for the use of an invention, utility model, industrial design;

5) on the right of prior use;

6) on the right of after-use, etc.

In the cases referred to in Art. 1387, 1390, 1391, 1398, 1401 and 1404 of the Civil Code, protection of patent rights is also carried out administratively in accordance with clauses 2 and 3 of Art. 1248 GK.

Author: Ivakin V.N.

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