Civil law. A special part. The right to a selection achievement (the most important)

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Civil law. A special part. The right to a selection achievement (the most important)

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Topic 27. RIGHT TO SELECTION ACHIEVEMENT

Ch. 73 parts of the fourth Civil Code. According to Art. 1408 of the Civil Code, the author of a selection achievement that meets the conditions for granting legal protection provided for by this Code owns the following intellectual rights:

▪ exclusive right;

▪ right of authorship.

In the cases provided for by the Civil Code, the author of a selection achievement also has other rights, including:

▪ the right to obtain a patent;

▪ the right to name the selection achievement;

▪ the right to remuneration for the use of a proprietary selection achievement.

According to the norm of art. 1410 of the Civil Code, a breeder is recognized as the author of a selection achievement - a citizen whose creative work created, bred or revealed the selection achievement.

In accordance with Art. 1412 of the Civil Code, the objects of intellectual rights to breeding achievements are plant varieties and animal breeds registered in the State Register of Protected Breeding Achievements, if these results of intellectual activity meet the requirements established by the Civil Code for such breeding achievements. In this case, a plant variety is a group of plants, which, regardless of protection, is determined by the characteristics that characterize a given genotype or combination of genotypes, and differs from other groups of plants of the same botanical taxon by one or more characteristics. The protected categories of plant variety are clone, line, first generation hybrid, population. An animal breed is a group of animals that, regardless of protection, has genetically determined biological and morphological properties and characteristics, some of which are specific to this group and distinguish it from other groups of animals.

The conditions for the protection of a selection achievement are established in Art. 1413 GK. According to this article, a patent is issued for a selection achievement that meets the criteria for protectability and refers to botanical and zoological genera and species, the list of which is established by the federal executive body responsible for legal regulation in the field of agriculture. Currently, this body is the Ministry of Agriculture of the Russian Federation (Ministry of Agriculture of Russia).

The criteria for the protection of a selection achievement are:

▪ novelty;

▪ distinctiveness;

▪ homogeneity;

▪ stability.

A plant variety and an animal breed are considered new if, as of the date of filing an application for a patent, the seeds or breeding material of this selection achievement have not been sold or otherwise transferred by the breeder, his successor or, with their consent, to other persons for the use of the selection achievement:

▪ on the territory of the Russian Federation earlier than one year before the specified date;

▪ on the territory of another state earlier than four years;

▪ or, if it concerns varieties of grapes, ornamental trees, tree fruit crops and woody forest species, earlier than six years before the specified date.

The selection achievement must be clearly distinct from any other well-known selection achievement existing at the time of filing the patent application. At the same time, a well-known selection achievement is a selection achievement, the data on which are in official catalogs or a reference fund, or which has an exact description in one of the publications. In addition, the filing of an application for a patent also makes the selection achievement publicly known from the date of filing the application, provided that the selection achievement has been granted a patent.

Plants of the same variety, animals of the same breed must be sufficiently homogeneous in their characteristics, taking into account individual deviations that may occur due to the characteristics of reproduction.

Finally, a selection achievement is considered stable if its main characteristics remain unchanged after repeated reproduction or, in the case of a special cycle of reproduction, at the end of each cycle of reproduction.

According to the norm of art. 1415 of the Civil Code, a patent for a selection achievement certifies the priority of the selection achievement, authorship and the exclusive right to the selection achievement. The scope of protection of intellectual rights to a selection achievement, granted on the basis of a patent, is determined by the totality of essential features recorded in the description of the selection achievement (clause 2 of article 1415 of the Civil Code).

In accordance with Art. 1416 of the Civil Code, the author of a selection achievement has the right to obtain an author's certificate, which is issued by the federal executive body for selection achievements and certifies authorship.

According to the norm of art. 1423 of the Civil Code, after three years from the date of issue of a patent for a selection achievement, any person who wants and is ready to use the selection achievement, if the patent owner refuses to conclude a license agreement for the production or sale of seeds, breeding material on conditions corresponding to established practice, has the right to apply to the court with a claim against the patent owner for a compulsory simple (non-exclusive) license to use such a selection achievement in the Russian Federation. In the claims, this person must indicate the conditions he proposes for granting such a license to him, including the scope of use of the selection achievement, the amount, procedure and terms of payments. On the basis of a court decision on granting a compulsory simple (non-exclusive) license, the patent owner is obliged, for a fee and on conditions acceptable to him, to provide the holder of such a license with seeds or, accordingly, breeding material in an amount sufficient to use the compulsory simple (non-exclusive) license (paragraph 2 of Article 1423 GK).

The validity period of the exclusive right to a selection achievement and the patent certifying this right is calculated from the date of state registration of the selection achievement in the State Register of Protected Selection Achievements and is 30 years (paragraph 1 of article 1424 of the Civil Code). For varieties of grapes, ornamental trees, fruit crops and forest species, including their rootstocks, the period of validity of the exclusive right and the patent certifying this right is 35 years (paragraph 2 of article 1424 of the Civil Code). After the expiration of the exclusive right, the selection achievement passes into the public domain (paragraph 1 of article 1425 of the Civil Code).

The disposal of the exclusive right to a selection achievement is possible in the form of concluding an agreement on the alienation of a patent (Article 1426 of the Civil Code) or a license agreement (Article 1428 of the Civil Code). Noma st. 1427 of the Civil Code provides for the possibility of a public offer to conclude an agreement on the alienation of a patent for a selection achievement, and Art. 1429 of the Civil Code grants the patent holder the right to file an application with the federal body on the possibility of granting any person the right to use a selection achievement (open license). In both cases, applicants are granted privileges for the payment of patent fees.

In Art. 1430 - 1432 of the Civil Code contains rules on a selection achievement created, bred or identified in the course of performing a job assignment or in the performance of work under a contract.

Obtaining a patent for a selection achievement. Norm Art. 1435 of the Civil Code provides for a preliminary examination of an application for a patent for a selection achievement, during which the priority date is established and the availability of documents provided for in paragraph 2 of Art. 1433 Civil Code, and their compliance with established requirements. A preliminary examination of a patent application is carried out within a month. Information on accepted applications is published in the official bulletin of the Russian Ministry of Agriculture. A selection achievement for which an application has been submitted to this body is granted temporary legal protection from the date of filing the application until the date of issue to the applicant of a patent for the selection achievement. During the period of temporary legal protection of a selection achievement, the applicant is allowed to sell and otherwise transfer seeds, breeding material only for scientific purposes, as well as in cases where the sale and other transfer are associated with the alienation of the right to obtain a patent for a selection achievement or with the production of seeds, breeding material for order of the applicant in order to create their stock (Article 1436 of the Civil Code).

In Art. 1437 of the Civil Code provides that any interested person, within six months from the date of publication of information about an application for a patent, may send a request to the federal body for an examination of the claimed selection achievement for novelty. The Ministry of Agriculture of Russia shall notify the applicant of the receipt of such a petition, outlining the essence of the petition. The applicant has the right, within three months from the date of receipt of the notification, to send a reasoned objection to the application to this body.

Based on the available materials, the said federal body makes a decision and informs the person concerned about it. If the selection achievement does not meet the criterion of novelty, a decision is made to refuse to issue a patent for the selection achievement.

According to the methods and within the time limits established by the Ministry of Agriculture of Russia, selection achievement tests are carried out for distinctness, uniformity and stability. The applicant is obliged to provide for testing the required amount of seeds, breeding material at the address and within the time specified by the Ministry of Agriculture of Russia.

The procedure for state registration of a selection achievement and the issuance of a patent is established in Art. 1439 GK.

Art. 1440 of the Civil Code establishes the obligation to preserve sectional achievements. In accordance with paragraph 1 of this article, the patent holder is obliged to maintain a plant variety or animal breed during the term of the patent for a selection achievement in such a way that the characteristics indicated in the description of the plant variety or animal breed, drawn up on the date of inclusion of the selection achievement in the State Register of Protected selection achievements. At the request of the Ministry of Agriculture of Russia, the patent holder is obliged to send at his own expense seeds or breeding material for control tests and provide an opportunity to conduct an on-site inspection (paragraph 2 of article 1440 of the Civil Code).

Author: Ivakin V.N.

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