Civil law. A special part. The right to use the results of intellectual activity as part of a single technology (the most important)

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Civil law. A special part. The right to use the results of intellectual activity as part of a single technology (the most important)

Lecture notes, cheat sheets

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Topic 31

The institute of the right to use the results of intellectual activity as part of a single technology (the right to technology) is a new institution of civil law, to which Ch. 77 GK.

In accordance with paragraph 1 of Art. 1542 of the Civil Code, a single technology in the sense of the above chapter is recognized as the result of scientific and technical activity expressed in an objective form, which includes, in one combination or another, inventions, utility models, industrial designs, computer programs or other results of intellectual activity subject to legal protection in accordance with the rules of sect. VII Civil Code, and can serve as a technological basis for certain practical activities in the civil or military sphere. The composition of a single technology may also include the results of intellectual activity that are not subject to legal protection on the basis of the rules of the above section, including technical data and other information. Exclusive rights to the results of intellectual activity that are part of a single technology are recognized and subject to protection in accordance with the rules of the Civil Code.

The right to use the results of intellectual activity as part of a single technology as part of a complex object (Article 1240 of the Civil Code) belongs to the person who organized the creation of a single technology (the right to technology) on the basis of agreements with holders of exclusive rights to the results of intellectual activity that are part of a single technology. The structure of a single technology may also include protected results of intellectual activity created by the person who organized its creation (clause 3 of article 1542 of the Civil Code).

According to the norm of art. 1543 rules ch. 77 of the Civil Code apply to relations related to the right to civil, military, special or dual-use technology created at the expense of or with the involvement of funds from the federal budget or the budgets of the constituent entities of the Russian Federation, allocated to pay for work under government contracts, under other agreements, for financing according to estimates income and expenses, as well as in the form of subsidies. These rules do not apply to relations arising from the creation of a single technology at the expense of or with the attraction of funds from the federal budget or the budgets of the constituent entities of the Russian Federation on a reimbursable basis in the form of a budget loan.

As provided in Art. 1544 of the Civil Code, the person who organized the creation of a single technology at the expense or with the involvement of funds from the federal budget or the budget of a constituent entity of the Russian Federation (executor) owns the right to the created technology, except when this right is in accordance with paragraph 1 of Art. 1546 of the Civil Code belongs to the Russian Federation or a constituent entity of the Russian Federation. The specified person is obliged to immediately take the measures provided for by the legislation of the Russian Federation to recognize him and obtain rights to the results of intellectual activity that are part of a single technology (apply for patents, for state registration of the results of intellectual activity, introduce a secrecy regime for relevant information, conclude agreements on the alienation of exclusive rights and license agreements with holders of exclusive rights to the corresponding results of intellectual activity that are part of a single technology, and take other measures), if such measures were not taken before or during the creation of the technology. In cases where the Civil Code allows various methods of legal protection of the results of intellectual activity that are part of a single technology, the person who owns the right to the technology chooses the method of legal protection that best suits his interests and ensures the practical application of the single technology. 3 article 1546 of the Civil Code).

Art. 1545 of the Civil Code provide for the obligation of the practical application of a single technology. According to paragraph 1 of this article, a person who, in accordance with Art. 1544 of this Code, the right to technology belongs, it is obliged to carry out its practical application (implementation). The same obligation is borne by any person to whom this right is transferred or to whom this right is transferred in accordance with the rules of the Civil Code. The content of the obligation to introduce technology, terms, other conditions and the procedure for fulfilling this obligation, the consequences of its non-fulfillment and the conditions for termination are determined by the Government of the Russian Federation (clause 2 of article 1545 of the Civil Code).

In Art. 1546 of the Civil Code defines the rights of the Russian Federation and subjects of the Russian Federation for technology. So, in accordance with paragraph 1 of Art. 1546 of the Civil Code, the right to technology created at the expense or with the involvement of federal budget funds belongs to the Russian Federation in cases where:

1) a single technology is directly related to ensuring the defense and security of the Russian Federation;

2) the Russian Federation, prior to the creation of a unified technology or subsequently, took over the financing of work to bring the unified technology to the stage of practical application;

3) the performer has not ensured, before the expiration of six months after the end of work on the creation of a single technology, the performance of all the actions necessary to recognize him or acquire exclusive rights to the results of intellectual activity that are part of the technology.

In accordance with paragraph 1 of Art. 1546 of the Civil Code, the right to technology created at the expense or with the attraction of funds from the budget of a constituent entity of the Russian Federation belongs to the constituent entity of the Russian Federation in cases where:

▪ a subject of the Russian Federation, before the creation of a unified technology or subsequently, took upon itself the financing of work to bring the technology to the stage of practical application;

▪ the contractor did not ensure, before the expiration of 6 months after the completion of work on the creation of a unified technology, the completion of all actions necessary for recognition or acquisition of exclusive rights to the results of intellectual activity that are part of the technology.

In cases where the right to technology belongs to the Russian Federation or a constituent entity of the Russian Federation, the performer is obliged in accordance with paragraph 2 of Art. 1544 of the Civil Code, take measures to recognize him and obtain rights to the corresponding results of intellectual activity for the subsequent transfer of these rights, respectively, to the Russian Federation and the subject of the Russian Federation (clause 3, article 1546 of the Civil Code).

The right to technology owned by the Russian Federation is managed in the manner determined by the Government of the Russian Federation. The management of the right to technology owned by a subject of the Russian Federation is carried out in the manner determined by the executive authorities of the corresponding subject of the Russian Federation (clause 4 of article 1546 of the Civil Code). The disposal of the right to technology owned by the Russian Federation or a constituent entity of the Russian Federation is carried out in compliance with the rules of Sec. VII GK. Features of the disposal of the right to technology belonging to the Russian Federation are determined by the law on the transfer of federal technologies (clause 5 of article 1546 of the Civil Code).

According to the norm of paragraph 1 of Art. 1547 of the Civil Code in the cases provided for by sub. 2 and 3, paragraph 1 and paragraph 2 of Art. 1546 of the Civil Code, no later than six months from the date of receipt by the Russian Federation or a constituent entity of the Russian Federation of the rights to the results of intellectual activity necessary for the practical use of these results as part of a single technology, the right to technology must be alienated to a person interested in implementing the technology and possessing real opportunities for its implementation. In the case provided for in sub. 1 p. 1 art. 1546 of the Civil Code, the right to technology must be alienated to a person interested in the implementation of the technology and having real opportunities for its implementation, immediately after the Russian Federation loses the need to retain these rights.

According to the norm of paragraph 2 of Art. 1547 of the Civil Code, the alienation by the Russian Federation or a constituent entity of the Russian Federation of the right to technology to third parties is carried out according to the general rule for a fee based on the results of the competition. If it is impossible to alienate the right to technology belonging to the Russian Federation or a constituent entity of the Russian Federation on a competitive basis, such a right is transferred based on the results of an auction. The procedure for holding a tender or auction for the alienation by the Russian Federation or constituent entities of the Russian Federation of the right to technology, as well as possible cases and procedure for the transfer by the Russian Federation or constituent entities of the Russian Federation of the right to technology without holding a tender or auction are determined by the law on technology transfer.

The pre-emptive right to conclude an agreement with the Russian Federation or a constituent entity of the Russian Federation on acquiring the right to technology has, other things being equal, the performer who organized the creation of the results of intellectual activity that are part of a single technology (clause 3 of article 1547 of the Civil Code).

In accordance with paragraph 1 of Art. 1548 of the Civil Code, the right to technology is granted free of charge in cases provided for in Art. 1544 and paragraph 3 of Art. 1546 GK. In cases where the right to technology is alienated under an agreement, including the results of a tender or auction, the amount, conditions and procedure for paying remuneration for this right are determined by agreement of the parties (clause 2 of article 1548 of the Civil Code). In cases where the introduction of technology is of great socio-economic importance or important for the defense or security of the Russian Federation, and the amount of costs for its implementation makes it economically inefficient to acquire the right to technology for a fee, transfer the right to such technology by the Russian Federation, a constituent entity of the Russian Federation or another right holder who have received the corresponding right free of charge, can also be carried out free of charge. The cases in which the gratuitous transfer of the right to technology is allowed are determined by the Government of the Russian Federation (clause 3 of article 1548 of the Civil Code).

The right to technology created with the involvement of budgetary funds and funds from other investors may belong in accordance with Art. 1549 of the Civil Code of the Russian Federation, a constituent entity of the Russian Federation, other investors of the project, as a result of which the technology was created, the contractor and other copyright holders.

If the right to technology belongs to several persons, they shall exercise this right jointly. In this case, the disposal of the right to technology, owned jointly by several persons, is carried out by them by common agreement (paragraph 2 of article 1549 of the Civil Code). Income from the use of technology, the right to which belongs jointly to several right holders, as well as from the disposal of this right, is distributed among the right holders by agreement between them (clause 4 of article 1549 of the Civil Code).

According to the norm of paragraph 5 of Art. 1549 of the Civil Code, if a part of the technology, the right to which belongs to several persons, can have an independent value, an agreement between the right holders can determine the right to which part of the technology belongs to each of the right holders. A piece of technology can have independent value if it can be used independently of other parts of this technology. Each of the copyright holders has the right, at its own discretion, to use the relevant part of the technology that has independent significance, unless otherwise provided by an agreement between them. At the same time, the right to technology as a whole, as well as the disposal of the right to it, are exercised jointly by all right holders. Income from the use of a part of the technology goes to the person who has the right to this part of the technology.

As stated in Art. 1550 of the Civil Code, unless otherwise provided by this Code or other law, a person possessing the right to technology may, at his own discretion, dispose of this right by transferring it in whole or in part to other persons under an agreement or other transaction, including under an agreement on the alienation of this rights, under a license agreement or under another agreement containing elements of an agreement on the alienation of rights or a license agreement. The right to technology is transferred simultaneously with respect to all the results of intellectual activity that are part of a single technology as a whole. The transfer of rights to individual results from among the specified results (to a part of technology) is allowed only in cases where part of a single technology can have independent significance in accordance with paragraph 5 of Art. 1549 GK.

According to the norm of paragraph 1 of Art. 1550 of the Civil Code, a single technology must have practical application (implementation) mainly on the territory of the Russian Federation. The right to technology may be transferred for the use of a single technology in the territories of foreign states with the consent of the state customer or the manager of budgetary funds in accordance with the legislation on foreign economic activity.

Transactions involving the use of a single technology outside the Russian Federation are subject to state registration with Rospatent. Failure to comply with the requirement for state registration of a transaction entails its invalidity (paragraph 2 of article 1550 of the Civil Code).

REFERENCES

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2. Bodenhausen, G. Paris Convention for the Protection of Industrial Property. Comment / G. Bodenhausen. - M., 1977.

3. Borisov, A. B. Commentary on the Civil Code of the Russian Federation, part one, part two, part three, part four (item-by-article) /A. B. Borisov. - M., 2007.

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Author: Ivakin V.N.

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