Intellectual property is products creative activity in the industrial, scientific, literary, artistic fields, which are of an intangible nature. At the same time, intellectual property is embodied in certain material objects or accompanies them, is present as a component of quality, price of goods. From this point of view, it itself becomes a kind of commodity.

However, unlike goods as a material thing, intellectual property itself is able to bring profit to its owners only if it is provided with special legal protection by the state.

The objects of intellectual property rights include: patents for inventions, utility models, industrial designs, trademarks, service marks, trade names, computer programs, know-how, trade secrets, copyright and related rights, etc.

In domestic legal systems, relations on the creation and use of intellectual property are regulated by copyright, patent law and other institutions of civil and commercial law.

Protection of intellectual property is directly related to activities to combat unfair competition. Under unfair competition, in particular, they mean: dissemination of distorted information about the product, nature, method, place of its manufacture, consumer properties and other qualities of the product; unauthorized use of a trademark, company name, product labeling; copying the form, packaging, external design of goods, etc.

Intellectual property issues have long been the subject of various international agreements. At the multilateral level, they are governed by the following agreements: the Paris Convention for the Protection of Industrial Property of 1883 (with subsequent amendments and additions), the Berne Convention for the Protection of Literary and Artistic Works of 1886 (with subsequent editions of 1928, 1948, 1971), the Universal Convention on 1952 Madrid Convention Concerning the International Registration of Manufacturers and Trademarks 1891 and related Vienna Treaty on the Registration of Trademarks 1973 Washington Patent Cooperation Treaty 1970 Nice Agreement Concerning the International Classification of Products and Services for the Registration of Marks 1957, the Rome Convention for the International Protection of Performers, Recorders and Broadcasters of 1961, the Intellectual Property Treaty for Integrated Circuits of 1989, the Eurasian Patent Convention of 1994, etc.

In 1967, the World Intellectual Property Organization (WIPO) was established to promote the protection of intellectual property throughout the world. More than 130 states participate in WIPO.

Intellectual Property Law

Intellectual property law is a sub-branch of civil law, a set of legal norms and institutions of law that regulate relations in the field of the emergence, use and protection of intellectual property objects.

Intellectual property is a set of exclusive rights of a citizen or legal entity to the results of creative, intellectual activity, as well as means of individualization of legal entities, products, works and services (company name, trademark, service mark) equated to them in the legal regime.

Intellectual property law does not regulate the process of intellectual activity, culminating in the creation of new, creatively independent results in the field of science, technology, literature and art.

This sub-branch of civil law protects the results of intellectual activity, which are intangible benefits.

Traditionally, intellectual property is divided into two components:

Industrial property is characterized by such components as industrial designs, inventions, utility models, trademarks, service marks and trade names.

1. Copyright - a set of legal norms regulating social relations arising in connection with and in connection with the creation and use of works of science, literature and art;
2. Rights related to copyright - the rights of performers, producers of phonograms and broadcasting and cable broadcasting organizations;
3. Patent law - a set of legal norms governing property, as well as related personal non-property relations arising in connection with the creation and use of inventions, utility models and industrial designs;
4. Intellectual property right to a trademark (service mark);
5. Intellectual property right to the trade name;
6. Intellectual property right for topologies of integrated circuits;
7. Intellectual property rights to computer programs and databases;
8. The right of intellectual property to selection achievements;
9. Legal relations in the sphere of commercial and official secrets.

Objects of intellectual property

Intellectual property objects (OIP) include the results of intellectual activity that can be granted legal protection in accordance with the Civil Code of the Russian Federation, Part 4.

The results of intellectual activity (RIA) at the university are mainly the results of research, development and technological work (R&D and TR) obtained during the implementation of the university agreements and contracts, as well as the results created by university employees (teachers, scientists, graduate students, etc.). .p.) in connection with the creative application of knowledge accumulated in the process of scientific and technical activities within the scientific areas of the university.

Intellectual property objects (OIP) created at the university are RIA, which, according to the criteria set out in the Civil Code of the Russian Federation, Part 4, can be attributed to objects of patent law (invention, utility model, industrial design), or to production secrets (know- howe), or expressed in the form of a computer program, a database, or an integrated circuit topology. The specified types of intellectual property objects that are created at the university correspond to the nature of the created RIA, which in turn is determined by the scientific and technical areas of the university and the topics of agreements and contracts conducted by research groups and departments of the university. In addition, for the purpose of commercializing the results of R&D and TR and their promotion in the market of scientific and technical products, individualization tools, such as trademarks and service marks, can be developed at the university.

The legal protection of intellectual property items created at the university in the course of R&D and technical development implies the assignment of intellectual property rights in relation to the above intellectual property items to the university, if this does not contradict the terms of state contracts and other agreements under which the intellectual property items were obtained.

The procedure for obtaining legal protection of intellectual property objects:

1. Registration of the application according to the rules.
2. Submission of an application to the Patent Office with the preliminary payment of a fee.
3. Examination of the application by the Patent Office to a certain extent, corresponding to the type of object.
4. If the outcome of the examination is positive, the Patent Office issues a document of protection (patent or certificate) that confirms the exclusive right of the right holder to own and dispose of the registered intellectual property items for a certain period.

The rules for drawing up an application for a patent or certificate for each type of intellectual property are set out in the relevant Administrative Regulations of the Federal Service for Intellectual Property.

Full information on the procedure for obtaining legal protection for OIP, the rules for drawing up an application for a patent or certificate for OIP and the preparation of the content of the application are provided by employees of the Center for Commercialization and Technology Transfer (CCTT).

The preparation of substantive application materials, including a description of the IPO, compiled in accordance with the requirements of the relevant Administrative Regulations, is an iterative procedure and is carried out with the direct cooperation of the IPO creators and CCTT employees. The completed application is registered at the CKTT and sent to the Patent Office. Submission of an application to the Patent Office and further paperwork on the application is carried out by employees of the CCTT.

Information about the state of paperwork on applications for obtaining patents and certificates is accumulated in the CCTT and provided by the CCTT employees at the request of the creators of the intellectual property objects and the university administration.

Information about submitted applications and received patents or certificates on them in the name of the university is included in the reporting base of SPbGETU based on the information registered with the CCTT. This information is used for reporting to higher organizations, state customers of R&D and TR, for state statistical reporting, as well as for solving internal management tasks related to the analysis of the activities of the scientific departments of the university.

The implementation of patent protection involves the annual renewal of patents by paying an annual patent fee during the term of the patent, provided for by the current legislation of the Russian Federation in the field of intellectual property. CKTT prepares documents for the renewal of patents and takes into account information about all OIP belonging to the university that are currently in force. Information about the university's current intellectual property objects is provided by the employees of the CCTT at the request of the founders of the intellectual property objects and the university administration.

Intellectual Property Protection

As the initiator of copyright protection and protection of intellectual property should be its owner. Each owner of the object needs to understand that only his active position will minimize the risk of violations by third parties.

Depending on the status that you have, you can secure the rights to various intellectual property objects.

So, if you are a representative of an organization, enterprise or individual entrepreneur, the law makes it possible to register the rights to:

Industrial property objects:

Trademarks (trademarks);
inventions;
useful models;
industrial designs.

Written and oral works;
sound recording and video recording;
image;
volume-spatial form of the work;
other forms (computer programs and databases, topologies of integrated circuits).

If you are a citizen (individual), a trademark is excluded from the possibility of assigning rights to objects of intellectual property. This is due to the fact that, by law, a trademark must be used for commercial purposes. Usually this issue is resolved by registering a citizen as an individual entrepreneur. Including such a need arises if the trademark passes to the citizen by inheritance.

State registration of intellectual property in Russia

State registration with Rospatent (Federal Institute of Industrial Property) is carried out for the main part of intellectual property objects, with the exception of some copyright objects, the rights to which arise automatically for the author when such objects are created. However, the certificate of state registration is not a guarantee of the absence of violations of rights to any object of intellectual property by unscrupulous competitors or users. In such cases, the right holder needs additional legal protection of intellectual property objects. Intellectual property protection is the initiative of the right holder. Only the author or owner of exclusive rights can initiate the prosecution of violators.

Defense in the Chamber of Patent Disputes

This division of Rospatent primarily considers issues related to the conflict of interests in the field of trademarks and patenting of inventions, utility models, industrial designs. Depending on the type of dispute, there are various ways to protect the interests of copyright holders.

Protection of interests in the Federal Antimonopoly Service

The Antimonopoly Service resolves packs in the field of unfair competition, expressed in the illegal use of trademarks and patents in the manufacture of products and their promotion on the market.

Protection of interests in the Intellectual Property Court

A specialized court that provides resolution of disputes in the field of intellectual property began to function relatively recently, but the bulk of disputes in this category are already resolved in it.

Federal intellectual property

Federal intellectual property is understood in a broad and narrow sense. In a broad sense, federal intellectual property is a set of results of the intellectual activity of the state, incl. produced or registered outside the state, but protected and protected by this state, as well as human resources - citizens of the state. In a narrow sense, federal intellectual property is the results of intellectual activity used by the state under an agreement, as well as passed into the public domain.

The rights of the owner of the state are performed by various authorized bodies of the state. This mainly concerns the executive bodies of the state. The use of intellectual property objects by these bodies is carried out in accordance with the law, which establishes the specific powers of these bodies.

Intellectual property objects are also used by state unitary enterprises. The peculiarity of using the results of intellectual activity of SUEs is, in fact, that these objects belong to them on the basis of the right of economic management or operational management.

Some objects of intellectual property become the property of the state as a result of a contract for the performance of research, development and technological work. Under this agreement, the contractor undertakes to carry out scientific research stipulated by the customer's terms of reference, and under the contract for development and technological work, to develop a sample of a new product, design documentation for it or a new technology, and the customer undertakes to accept the work and pay for it.

The subject of the contract is the result of a creative solution by the performer of the assigned scientific, technical or technological task. The result of R&D contracts should always be in a material form - a scientific report (conclusion), a product sample, design documentation, etc.

The parties to the contract are customers and contractors. The form of the contract is written.

The contract for the performance of research, development and technological work will be:

1. consensual - the conclusion of the contract occurs from the moment the parties reach an agreement on its terms;
2. compensated;
3. mutual - the existence of subjective rights and obligations for both parties to the contract for the implementation of research, development and technological work.

Intellectual Property Service

The Federal Service for Intellectual Property (Rospatent) performs the functions of legal protection of the interests of the state in the process of economic and civil law turnover of the results of research, development and technological work of military, special and dual use, control and supervision in the field of legal protection and use the results of intellectual activity of civil, military, special and dual-use, created at the expense of budgetary appropriations of the federal budget, as well as on control and supervision in the established field of activity in relation to state customers and organizations - executors of state contracts that provide for research, development and development and technological works, the provision of public services in the field of legal protection of inventions, utility models, industrial designs, computer programs, databases and topologies of integrated circuits, including those included in single technology, trademarks, service marks, appellations of origin of goods (AOs), regulatory legal regulation issues related to control, supervision and provision of public services in the established field of activity.

Rospatent is the assignee of the Federal Service for Intellectual Property, Patents and Trademarks, as well as the assignee of the Ministry of Justice of the Russian Federation in terms of the legal protection of the interests of the state in the process of economic and civil law turnover of the results of research, development and technological work of military, special and dual purpose, including obligations arising from the execution of judgments.

Rospatent carries out:

A) control and supervision in the field of legal protection and use of the results of intellectual activity of civil, military, special and dual-use, created at the expense of budgetary appropriations of the federal budget, as well as control and supervision in the established field of activity in relation to state customers and organizations - executors of state contracts , providing for the conduct of research, development and technological work;
b) the provision of public services in the established field of activity.

Rospatent adopts the following regulations:

A) rules for filing an application for state registration of a computer program or database;
b) the procedure for state registration of computer programs and databases, the forms of certificates of state registration, the list of information indicated in them and the list of information published in the official bulletin of the Service;
c) the procedure for extending the term of a patent for an invention, utility model or industrial design;
d) requirements for documents contained in an application for a patent for an invention, utility model or industrial design;
e) the composition of the information on the application for the grant of a patent for an invention, published in the official bulletin of the Service;
f) the procedure for familiarization with the documents contained in the application for the grant of a patent for an invention and the issuance of copies of such documents;
g) the procedure for conducting an information search in relation to the claimed invention in order to determine the state of the art, in comparison with which the novelty and inventive step of the invention will be evaluated, and to submit a report on it;
h) the procedure, including conditions, for conducting an information search in relation to the claimed utility model to determine the state of the art against which the patentability of the utility model can be assessed, and providing information about its results;
i) the form of a patent for an invention, utility model, industrial design and the composition of the information indicated in it;
j) the composition of information published in the official bulletin of the Service on the grant of a patent for an invention, utility model or industrial design;
k) the procedure for familiarization with the documents contained in the application for the grant of a patent for an invention, utility model or industrial design, and the information search report;
l) rules for filing an application for state registration of an integrated circuit topology;
m) the procedure for state registration of topologies of integrated circuits, forms of certificates of state registration of topologies of integrated circuits, the list of information indicated in the certificates and the list of information published in the official bulletin of the Service;
n) requirements for the documents contained in the application for a trademark and attached to it;
i) the procedure for familiarization with the documents contained in the application for a trademark, and the issuance of copies of such documents;
p) the form of the trademark certificate and the list of information indicated therein;
c) the form of a certificate for a well-known trademark and the list of information indicated in this certificate;
r) the procedure for transforming a collective mark and an application for a collective mark, respectively, into a trademark and an application for a trademark, and vice versa;
s) requirements for the documents contained in the application for an AO or attached to it;
t) the form of the certificate of the exclusive right to the AO and the list of information indicated in such a certificate;
x) Regulations on the attestation commission for the approval of a candidate for the position of rector of a federal state educational institution of higher education vocational education subordinated to the Service.

Rospatent also carries out:

- verification of the activities of state customers and organizations - executors of state contracts, providing for the conduct of research, development and technological work at the expense of the federal budget;
– attestation and registration of patent attorneys of the Russian Federation, issuance of registration certificates to them, as well as control over the fulfillment by patent attorneys of the requirements provided for by law;
– administrative consideration and resolution of disputes arising in connection with the protection of intellectual property rights in relations related to the filing and consideration of applications for the grant of patents for inventions, utility models, industrial designs, trademarks, service marks and AOs, with state registration of these results intellectual activity and means of individualization, with the issuance of relevant title documents, with challenging the provision of these results and means of legal protection or with its termination;
- accounting of licenses transferred to foreign states for the production of military products;
– confirms the settlement of issues of legal protection of the interests of the state in the process of transferring to foreign customers and using them the results of scientific research, development and technological work for military purposes, which are contained in the military products provided for the transfer and the rights to which belong Russian Federation;
- extends the validity of the exclusive right to an invention, utility model, industrial design, trademark, service mark, certificate of exclusive right to an AO, and also restores the validity of a patent for an invention, utility model, industrial design;
– terminates, in cases provided for by the legislation and international treaties of the Russian Federation, the validity of a patent for an invention, utility model or industrial design, the legal protection of a trademark, service mark or AO, the validity of a certificate of the exclusive right to such a name.

Rospatent carries out state registration of:

A) inventions, utility models, industrial designs, trademarks, service marks, AOs, computer programs, databases, topologies of integrated circuits with the issuance of patents and certificates for them, as well as their duplicates in the prescribed manner;
b) agreements on the disposal of the exclusive right to an invention, utility model, industrial design, trademark, service mark, registered topology of an integrated circuit, computer program, database, as well as transfer without an agreement of the exclusive right to an invention, utility model, industrial design, trademark, service mark, AO, registered integrated circuit topology, computer program, database;
c) transactions involving the use of a single technology outside the Russian Federation.

Rospatent maintains the following State registers:

State Register of Inventions of the Russian Federation;
- State Register of Utility Models of the Russian Federation;
- State Register of Industrial Designs of the Russian Federation;
- State Register of Trademarks and Service Marks of the Russian Federation;
- List of well-known trademarks in the Russian Federation;
- State Register of Appellations of Origin of Goods of the Russian Federation;
- Register of programs for electronic computers;
- Register of databases;
- Register of topologies of integrated circuits;
- A unified register of the results of research, development and technological work for military, special and dual purposes, the rights to which belong to the Russian Federation.

Rospatent publishes information:

A) on filed applications for inventions, on state registration of inventions, utility models, industrial designs, trademarks, service marks, AOs, computer programs, databases, topologies of integrated circuits, as well as on issued patents and certificates;
b) on the effect of the exclusive right to an invention, utility model, industrial design, trademark, service mark, AO, the extension of its validity, its termination and renewal;
c) on state registration of contracts for the disposal of the exclusive right to an invention, utility model, industrial design, trademark, service mark, registered topology of an integrated circuit, computer program, database, on state registration of transfer without a contract of exclusive right to an invention, utility model , industrial design, trademark, service mark, AO, registered integrated circuit topology, computer program, database, as well as transactions involving the use of a single technology outside the Russian Federation.

Rospatent organizes:

A) acceptance, registration and examination of applications for the grant of a patent for an invention, utility model, industrial design, applications for state registration of a trademark, service mark, AO and for the grant of an exclusive right to it, as well as applications for the grant of an exclusive right to a previously registered AO ;
b) consideration of applications for recognition of a trademark or designation used as a trademark, but not having legal protection in the territory of the Russian Federation, as a well-known trademark in the Russian Federation;
c) acceptance, registration and verification of applications for state registration of computer programs, databases, topologies of integrated circuits.

Intellectual property of state property

The main provisions of the legal status of subjects of legal relations, including the state, in the circulation of intellectual property objects are regulated by Part IV of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code). Therefore, the rights of the state to objects of intellectual property are determined based on the provisions of civil law.

The Russian Federation (hereinafter - Russia) is an equal participant in civil circulation, acts in civil law relations on an equal footing with other participants in these relations, and its participation in civil circulation is regulated by the rules governing the participation of legal entities in civil legal relations (Article 124 of the Civil Code) , i.e. the legal personality of Russia as a participant in civil law relations is equivalent to the legal personality of other participants in civil transactions that are legal entities. Consequently, all the norms of the legislation of the Russian Federation that regulate legal relations in the field of intellectual property also regulate the rights of the state to objects of intellectual property. However, the range of civil rights and obligations of Russia is wider and more diverse: it has some rights that none of the other participants in civil legal relations have (for example, the sovereignty of the Russian Federation).

The rights of the state to objects of intellectual property, as well as the problems associated with their acquisition and civil circulation, have repeatedly become the subject of scientific research. G. Otnyukova very successfully described the process of creating intellectual property objects and the procedure for transferring them to the state. However, in her work there was not even an attempt to designate those rights to intellectual property objects owned by the state.

V.N. Lopatin revealed the concept of "state rights to objects of intellectual property" and outlined all the problems associated with these rights. Agreeing with the authors, we consider it necessary, in turn, to formulate a list of state rights to objects of intellectual property, while it is advisable not to be limited to exclusive rights, since there are other rights that are very specific and interesting from a scientific point of view, and it is they that make up a significant part of the total volume of rights to intellectual property objects sold by Russia.

In the aggregate, Russia's rights to intellectual property objects can be classified as follows:

1) exclusive rights belonging to Russia;
2) rights to use objects of intellectual property, the exclusive rights to which do not belong to Russia, including:
a) the right to use in the order of requisition (Article 242 of the Civil Code);
b) the right to use a computer program, invention, utility model, industrial design, topology of an integrated circuit created as a result of the execution of a state contract for federal state needs;
c) the right to use an invention, utility model or industrial design without the consent of the patent owner in the interests of national security by permission of the Government of the Russian Federation (Article 1360 of the Civil Code);
d) rights related to the possession and use of a legally binding copy of a document, geodetic and cartographic information and geological information about the subsoil;
3) the right to establish restrictions on the transferability of intellectual property objects, the exclusive rights to which do not belong to Russia;
4) the right to prevent and prohibit the illegal use of the Olympic symbols in any way.

Some groups (subgroups) of these rights, in our opinion, deserve separate consideration.

G.L. Kalacheva, the opinion was expressed that the rights to state symbols are essentially the exclusive rights of the state to intellectual property. However, we cannot agree with her opinion, since the federal legislation on state symbols very clearly, without any exceptions, establishes the rules for the use of Russian symbols, as well as its individual elements in civil circulation, without allowing compensation for its use. Each of the subjects of the Russian Federation has its own legislation on state symbols, but their status is absolutely similar to the federal one. Thus, the state symbols of the Russian Federation and its subjects are not classified by the legislation of Russia as objects of intellectual property. In recent years, quite interesting phenomena have emerged in the field of intellectual property, such as the "pseudo-object" of intellectual property, "the results of research, development and technological work of military, special and dual-use", as well as "the results of intellectual activity" (hereinafter - RID). Their status is established by the regulations of the President of the Russian Federation and the Government of the Russian Federation, and not by federal laws (according to parts 1 - 3 of article 3 of the Civil Code, exclusive rights to intellectual property objects can be established only on the basis of federal law norms). Such "results" have no legal basis. According to S.V. Usoltseva, the prerequisite for the emergence of such RIAs is the absence of the institution of secret inventions, since most of them are of the nature of inventions, utility models and know-how. One cannot but agree with the above opinion, since at present, with the adoption of Part IV of the Civil Code of the Russian Federation, objects of intellectual property with the status "results of intellectual activity" (Article 1225 of the Civil Code) have received the right to exist.

The exclusive rights of Russia to objects of intellectual property are manifested only in the following forms:

1) assigning them to federal state unitary enterprises on the right of economic management;
2) assigning them to federal state-owned enterprises and state institutions on the basis of the right of operational management;
3) their presence in the treasury of the Russian Federation:
a) finding them directly in the treasury of the state;
b) their transfer to trust management of commercial organizations (except for unitary, including state-owned, enterprises).

As a typical example of holders of the rights of economic management (operational management), one can cite research and development and design organizations (including Russian Academy sciences) and public authorities (including federal executive authorities). The exclusive rights of Russia to certain trademarks are secured not only by Part IV of the Civil Code of the Russian Federation, but also by regulations. Brand names, the exclusive rights to which belong to the state, are the brand names of federal state unitary (including state) enterprises and federal state institutions. The holders of the property rights of Russia to objects of copyright and related rights are federal government agencies science, culture and education (a typical example of an object of such rights is a national film, educational literature, urban planning and architectural solutions).

A film created in accordance with the Federal Law "On State Support for the Cinematography of the Russian Federation".

A significant flaw in law enforcement practice is the lack of registration and accounting of exclusive rights to unregistered intellectual property (copyright and related rights, know-how, etc.). But the named objects of intellectual property, the exclusive rights to which belong to Russia, objectively exist from the moment of their creation in federal state unitary enterprises and institutions (and know-how - from the moment the decision was made to classify production secrets as information with limited access), the absence of their registration and accounting in no way detracts from Russia's exclusive rights to them, but is a violation of the law on the part of the owner organizations.

The rights of Russia affecting objects of intellectual property, the exclusive rights to which it does not own (in terms of the use of such objects and in terms of limiting their transferability), to a large extent determine the civil circulation of objects of intellectual property, regardless of the will of the right holders. Therefore, they must be divided into two separate groups of rights, which are similar in terms of the implementation of exclusive rights that do not belong to Russia, but differ in that the rights of one group give Russia the right to use objects of intellectual property for the needs of the state, without restricting their civil circulation, and the rights of the other group, on the contrary, are intended to limit the civil circulation of intellectual property in order to protect the interests of Russia.

In our opinion, it is necessary to analyze the content of the state's rights related to legal copies of documents, geodetic and cartographic information and geological information about the subsoil.

From the analysis of the norms of legislation that determine the status of a legal deposit of a document, it follows that all legal deposit of documents contain information that is the object of copyright and related rights, with the exception of official and patent documents: the information contained in them as such is not an object of intellectual property.

Geodetic and cartographic information made in the form of a cartographic image is subject to copyright (Article 1259 of the Civil Code) or may be protected by a patent for an industrial design (Article 1377 of the Civil Code), and presented in digital form, it is protected as a database (databases) (Article 1262 GK). Other geodetic and cartographic information can be an object of intellectual property only if access to it is limited, i.e. in the form of know-how (Article 1465 of the Civil Code).

The status of geological information about the subsoil as a separate object of exclusive rights is not defined by Russian legislation. But by analogy with geodetic and cartographic information, geological information about the subsoil, made in the form of a cartographic image, is subject to copyright or can be protected by a patent for an industrial design, and in digital form - by a database. The legislation of Russia provides for mandatory confidentiality of geological information about the subsoil, presented in any form, since such information is of practical value and has commercial potential for users.

According to parts 1 and 5 of Art. 27 of the Law of the Russian Federation "On Subsoil", geological information on subsoil may be in state ownership or in the ownership of a subsoil user, and the ownership of geological and other information on subsoil is protected in the manner established by the legislation of the Russian Federation for other objects of ownership.

Thus, geological information about the subsoil is an object of intellectual property with the status of know-how.

Russia owns all exclusive rights to geological information on the subsoil obtained at the expense of the federal budget.

The implementation of the rights to establish restrictions on the transferability of intellectual property objects, the exclusive rights to which do not belong to Russia, is manifested in the classification of inventions (with utility models), programs for electronic computers and databases, topologies of integrated circuits, objects of copyright and know-how, and also in limiting the circulation of the results of military, special and dual-purpose intellectual activity.

The right to prevent and prohibit the illegal use of the Olympic symbols in any way is singled out in a separate group for the reason that the state, not having exclusive rights to objects of intellectual property of this type and not using them on its part, is obliged to protect them from unauthorized use and prevent it. The basis of such an obligation is the norms of a multilateral international treaty. Olympic symbols are a means of individualization, the exclusive rights and special legal status of which are established by the norms of international law. Russia, recognizing the International Olympic Committee as a copyright holder, has assumed an obligation to protect and defend the rights to the Olympic symbols.

Considering this as a prerequisite, we consider it appropriate to disclose the content of civil circulation in the sphere of state rights to intellectual property. According to the definition given by many classics of domestic civil law in basic textbooks on civil law, civil turnover is a set of social relations in the course of which rights and obligations associated with objects of civil rights are acquired or terminated. Consequently, civil turnover is a systemic set of types of transactions (Article 153 of the Civil Code). There is no systemic list of types of transactions that make up civil circulation in the sphere of state rights to intellectual property objects in any of the studies.

In an attempt to fill this gap, we propose to formulate a systematic list as follows:

I group. Legal relations in the field of concluding and executing contracts, as a result of which objects of intellectual property are created (may be created).

II group. Civil turnover of intellectual property objects, the exclusive rights to which belong to Russia:

1) acquisition of exclusive rights to objects of intellectual property:
a) creation of the results of intellectual activity with their subsequent registration (registration) as objects of intellectual property, as well as the creation of unregistered objects of intellectual property:
- the federal state unitary (including state-owned) enterprises and institutions themselves;
- as a result of the execution of the state order and transferred to the state customer;
- at the expense of state financing and when using property that is in federal ownership;
b) acquisition of exclusive rights to already existing intellectual property objects (in particular, a patent assignment agreement);
c) transfer to the state of escheated property, which includes rights to objects of intellectual property;
d) nationalization of property, which includes rights to objects of intellectual property;
2) termination of Russia's exclusive rights to objects of intellectual property:
a) upon termination of the existence of an object of intellectual property as an object of exclusive right (for example, termination of a patent);
b) under an exclusive right assignment agreement;
c) when transferring exclusive rights to an object of intellectual property to the authorized capital of newly created legal entities;
d) as a result of privatization;
e) as a result of foreclosure on exclusive rights to intellectual property objects as an integral part of the debtor's property (during enforcement proceedings);
f) in the course of the sale of the property of a federal unitary enterprise declared bankrupt in the course of bankruptcy proceedings;
3) granting other subjects the right to use the object of intellectual property:
a) under a license agreement;
b) under a commercial concession agreement;
4) transfer to other subjects of the exclusive right to an object of intellectual property in trust management;
5) transfer to other subjects of the exclusive right to an object of intellectual property as a pledge;
6) transfer to other subjects of the exclusive right to an object of intellectual property for economic management (operational management);
7) the emergence of legal relations arising from the violation of Russia's exclusive rights to intellectual property.

III group. Methods of use by Russia of objects of intellectual property, the exclusive rights to which do not belong to it:

1) on a general basis, in accordance with civil law (including in the performance of contracts for federal state needs);
2) in the order of requisition (Article 242 of the Civil Code);
3) an invention, industrial design, utility model, topology of an integrated circuit, computer program and databases - as a result of the execution of a state contract for federal state needs;
4) an invention, utility model or industrial design, without the consent of the patent holder in the interests of national security, - with the permission of the Government of the Russian Federation;
5) in accordance with the law, possession of an obligatory copy of documents, geodetic (cartographic) information and geological information about the subsoil.

IV group. Legal relations arising on the basis of personal non-property rights:

1) relationships with the authors of intellectual property objects, the exclusive rights to which belong to Russia;
2) the realization of the right to remuneration to the author (authors) of an invention, industrial design, utility model created as a result of the execution of a state contract for federal state needs, the exclusive rights to which do not belong to Russia.

When involving objects of intellectual property owned by the state in civil circulation, their (assessed value) must be determined by evaluation. The object of appraisal is property. For the purposes of assessment, the division of property into things and intangible assets (intellectual property) is not provided for by Russian legislation, i.e. the state's rights to objects of intellectual property are subject to evaluation on a general basis. The object of assessment is the value of the rights that are the subject of the transaction.

When involving in any transaction any objects of intellectual property, the exclusive rights to which are fully or partially owned by Russia, an assessment is mandatory, the exception is recognized:

A) the commission by a federal state unitary enterprise (with the exception of a federal state enterprise) of transactions with intellectual property objects, the rights to which belong to the state (subject to the condition that Russia's consent is not required for the conclusion of such transactions);
b) transfer of objects of intellectual property during the reorganization of a state enterprise (institution) that is not associated with the loss of exclusive rights to them by Russia;
c) disposal by the institution of intellectual property acquired in the course of exercising the right to carry out income-generating activities (part 2 of article 298 of the Civil Code).

When Russia acquires exclusive rights to intellectual property (including through nationalization), an assessment is mandatory only if there is a dispute over the value of the acquired rights.

Russia's rights to intellectual property objects are subject to accounting and tax accounting on a general basis; there are no exceptions or specifics in Russian legislation. The accounting value of intangible assets is determined purely on the basis of the costs of their creation or acquisition (and financial accounting of intangible assets based on their estimated value is unacceptable).

When carrying out civil circulation, objects of intellectual property, the rights to which belong to the state, can also be moved across the customs and state borders of Russia, which supplements legal relations with a public law component - the norms of the customs and tax legislation of the Russian Federation and export control legislation.

In conclusion, we can conclude that relations in the sphere of Russia's rights to intellectual property objects are regulated by law to the extent necessary for their civil circulation. At the same time, in order to fully guarantee the observance of these rights, their protection and protection, it is advisable to adopt the Federal Law "On the implementation of state rights to objects of intellectual property in the field of science and technology", taking as a basis for its creation the text of the Model Law of the same name adopted by the Inter-Parliamentary Assembly of States - members of the Commonwealth of Independent States.

Intellectual Property Organization

The World Intellectual Property Organization (WIPO) is an international intergovernmental organization of the United Nations system headquartered in Geneva, Switzerland. The convention establishing the World Intellectual Property Organization was signed on July 14, 1967 in Stockholm. WIPO members are 185 states or more than 90% of the countries of the world. The Soviet Union became a member of WIPO on April 26, 1970, the Russian Federation, as the successor of the USSR, has been participating in WIPO since December 25, 1991.

WIPO has been operating since 1970, although its beginnings were made in 1883 and 1886, when the main agreements were adopted respectively: the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works. Each of these conventions provided for the creation of a corresponding International Bureau. Both bureaus were merged in 1893 under the name United International Bureaus for the Protection of Intellectual Property (BIRPI) (short for the French name). They lasted until 1970, when the BIRPI was replaced by the International Bureau, which currently serves as the secretariat of WIPO.

The purpose of WIPO is:

Promote the protection of intellectual property throughout the world through the cooperation of states and, as appropriate, in cooperation with any other international organization;
ensuring administrative cooperation between the Unions in the field of intellectual property protection, i.e. Unions established under the Paris and Berne conventions.

To achieve these goals, WIPO:

Promotes the development of measures designed to improve the protection of intellectual property throughout the world and to harmonize national legislation in this area;
performs the administrative functions of the Paris Union, the special unions formed in connection with this Union and the Berne Union;
promotes the conclusion of international agreements designed to promote the protection of intellectual property;
offers its cooperation to states requesting legal and technical assistance in the field of intellectual property;
collects and disseminates information related to the protection of intellectual property, carries out and encourages research in this area and publishes the results of such research;
maintains services facilitating the international protection of intellectual property and, where appropriate, carries out registrations in this area, as well as publishes information relating to this registration.

WIPO currently administers 24 international treaties, 20 of which Russia is a party to.

The executive head of WIPO is the Director General, who is elected by the WIPO General Assembly for a term of 6 years. He can be appointed again for a certain period of time. The current Director General of WIPO is Francis Gurry (Australia).

Any state that is a party to the Paris or Berne Conventions, as well as any other state that meets one of the following conditions, can become a member of WIPO:

Membership in the United Nations, any of the specialized agencies associated with the UN or the International Atomic Energy Agency;
participation in the Statute of the International Court of Justice;
an invitation to the WIPO General Assembly to become a party to the WIPO Convention.

To become a member of WIPO, a State must deposit its instrument of ratification or accession with the Director General of WIPO in Geneva.

WIPO's activities are mainly carried out in three areas:

Registration activity;
ensuring intergovernmental cooperation on administrative issues of intellectual property;
program activity.

All these activities are aimed at achieving the main objectives of WIPO, namely: to promote the maintenance and growth of respect for intellectual property throughout the world in order to create favorable conditions for industrial and cultural development by stimulating creativity and facilitating the transfer of technology.

Registration activities include services to applicants and owners of intellectual property rights, receiving and processing international applications in accordance with the Patent Cooperation Treaty, receiving applications for international registration of trademarks in accordance with the provisions of the Madrid Agreement Concerning the International Registration of Marks and the Protocol to this Agreement, receiving applications for the international registration of industrial designs in accordance with the Hague Agreement Concerning the International Registration of Industrial Designs and the receipt of applications for the international registration of appellations of origin of goods in accordance with the provisions of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration.

Registration activities are funded by fees paid by applicants. They represent 80% of WIPO's total income.

The activities of intergovernmental cooperation on administrative matters of intellectual property are mainly focused on managing the work with patent documents used for search and examination, developing methods to facilitate access to information from these funds, working on the development of classification systems, compiling statistical data, regional status reports legal norms in the field of intellectual property.

WIPO's core work is programmatic, which includes promoting wider acceptance of existing treaties, updating those treaties as needed through revision, creating new treaties, and organizing development cooperation.

Register of intellectual property

The Register of Intellectual Property Objects is a regulatory tool designed to carry out customs control over the observance of the interests of intellectual property owners. The protection of intellectual property rights is 2-level: in addition to the document valid in Russia, there is a Unified Register within the framework of the Customs Union.

FCS as a subject of intellectual property rights protection

According to the regulation "On the Federal Customs Service", approved by Decree of the Government of the Russian Federation No. 809, one of the areas of activity of this body is the protection of intellectual rights.

In pp. 5.2.8–5.2.9, the authority of the service includes determining the procedure for maintaining the register of intellectual property objects, as well as the sequence of actions of a person who wants to include an object in it, and requirements for submitted documents.

The FCS also directly maintains the Customs Register of Intellectual Property Objects (TROIS), which involves the official publication of the data entered, as well as their placement on the website.

One of the measures for the protection of intellectual property rights, for the implementation of which the body is responsible, is the suspension of the release of goods containing objects of intellectual property, when signs of violations are revealed within the framework of customs procedures.

Art. 305 of the Federal Law "On Customs Regulation in the Russian Federation" No. 311-FZ indicates that these manipulations are applicable to objects included in the TRIP and the unified register.

general characteristics register of objects of intellectual property of the Russian Federation

The main purpose of TROIS is to prevent the circulation of counterfeit products by preventing their import or export from the Russian Federation.

Art. 330 of the Customs Code of the Russian Federation says that the objects included in the register are subject to protection only within the territory of the state, that is, they are recognized and protected only within the borders of the Russian Federation.

The consequence of such local regulation was numerous cases of sale in the countries - members of the Customs Union of counterfeit products containing objects included in the TROIS of Russia, but not listed in similar registers of these states. This necessitated the creation of an additional unified registry. After the object is entered in the register, data about it and the right holder are sent to the regional customs authorities, which constantly monitor the movement of the relevant goods. According to paragraph 1 of Art. 331 of the Customs Code of the Russian Federation for general rule if violations are detected, for example, when a product is imported without the permission of the copyright holder, the release of the product is suspended for 10 days. The customs authority has 1 working day after the suspension to send a notification to the right holder.

If the goods are counterfeit, sanctions may be applied to the violator in accordance with Art. 14.10 of the Code of Administrative Offenses of the Russian Federation for the unlawful use of means of individualization, as well as measures of civil liability for encroachment on intellectual rights faces.

The procedure and conditions for the inclusion of objects in the register of the Federal Customs Service of Russia

Art. 330 of the Customs Code of the Russian Federation, as the basis for entering objects into the register, calls the application of the copyright holder to the FCS. Such an application is submitted if the person has reason to believe that intellectual property rights are likely to be infringed in the process of importing or exporting goods.

According to the legal requirements for the content of the application, it must indicate:

Information about the copyright holder;
information about the object requiring customs protection;
information about goods containing the specified object, the import or export of which may entail a violation of the rights of the subject;
the period of application of such a measure as the suspension of the issue.

Important! The administrative regulations of the FCS separately note that only 1 type of objects can be indicated in the application, otherwise it is unacceptable.

The application must be accompanied by a set of documents:

Confirmation of ownership of the rights to the object to this person;
power of attorney of the representative, if the application is not submitted by the copyright holder;
a written obligation of the right holder to compensate for the damage that may be caused to third parties in connection with the suspension of the issue.

You can also attach to the documents samples of goods proving the violation. Submitted documents must be reviewed within 1 month. The final inclusion of an object in the register on the basis of a positive decision requires the right holder to comply with the following condition: the risk of liability for harm caused to third parties must be insured.

Unified Customs Register of Intellectual Property Objects at the Customs Union Level

The 2nd level of protection of intellectual property rights is a unified register of intellectual property objects of the states that are members of the Customs Union, which is maintained on the basis of an agreement on a unified TRIP.

The central body authorized to give opinions on the inclusion of objects in the register, on the part of the Russian Federation, is the FCS, which, in addition, is determined by the Commission of the Customs Union as the body whose functions include maintaining a single register, that is, directly including information in it. The application (and a set of applications) is submitted to the central authority of 1 of the states that are members of the union.

Important! The number of copies must correspond to the number of countries that are members of the Customs Union.

The authority, in accordance with the provisions of the regulation approved by the decision of the Commission of the Customs Union No. 290, sends copies of applications with attachments within 10 working days to the central authorities of other states, which have 30 days to draw up a conclusion on the possibility of entering the object in the register. The conclusion is subject to transfer to the authorized body (FCS).

If at least one of the customs authorities comes to the conclusion that it is impossible to enter the object in the register, the right holder is notified of the refusal within 10 days.

Unfortunately, at the moment the unified registry is not functioning. The customs authorities control the movement of goods only on the basis of national laws. Thus, the system of customs control over the observance of intellectual property rights assumes the functioning of 2 levels of registers, which would ensure maximum efficiency in the fight against the movement of counterfeit goods across the border of the Russian Federation. However, the process of preparing a unified registry was delayed, so at the moment only the national system of barriers is in effect.

Intellectual Property Management

Intellectual property management is a set of measures aimed at the creation and use of intellectual property objects at the level of organizations, institutions, enterprises, industries, and the national economy as a whole.

Insufficient attention to the intellectual resource affects the competitive positions of enterprises, their export positions, the living standards of society, the economic, social and political security of the state.

Countries with economies in transition have specific features caused by the monopolization of the socialist economy and the policy of distributing productive forces. The political and social goals of the state were realized, in particular, by creating new industries in the union republics for the industrialization of the regions, increasing employment and raising living standards. However, this did not take into account the existing structure of academic, university and branch science, the directions of ongoing scientific research. As a result, new productions often turned out to be beyond the professional interests and capabilities of scientists. On the one hand, changing the subject of scientific research required long-term hard work and was impossible due to the lack of scientific schools and funding. On the other hand, new industries did not need the services of specialists who did not know the specifics of specific technologies and even their elements, and could only perform simple contractual work, mainly for personal purposes.

New industries were created on the basis of the developments of the leading industry institutes, which used both their own and foreign scientific and technical achievements, so often the scientific potential of the regions was not in demand not only for functioning, but also for improving production. So there was a natural gap between science and production.

Scientists were required to "introduce" developments into production. However, very often many workers in science either had nothing to implement, or did not have anything to implement. Science has never been and never will be a "direct productive force." Science arose as a means of knowing the world and forming new knowledge. Some knowledge becomes the basis of technical developments that turned out to be implemented in certain inventions. Such inventions can become the basis of new industries, technologies, goods and services. In other words, science has not a direct, but an indirect influence on social production, on the improvement of engineering and technology.

The relationship between science and production that has developed in the Soviet Union and persists in countries with economies in transition continues to affect the results of the intellectual activity of scientists and inventors, designers and engineers. Based on research and development, they create inventions that often turn out to be unclaimed by production, because these inventions do not correspond to the needs of production. As a result, inventions are patented that are not needed in production.

The reason lies not only in the isolation of inventions from the needs and needs of production. Enterprises within the framework of the established model of socialist monopoly are not interested in self-improvement. Enterprises were not in competitive conditions, since the state protected them from external competition with trade and tax barriers, and for many industries there was and could not be internal competition. As a result of the policy of state monopolism, enterprises did not have an urgent need to improve production, since there was no competition and responsibility for the results of their activities - the state tried to prevent a social explosion and reimbursed costs through more efficient enterprises.

Main cause of death Soviet Union- this is an erroneous state policy, focused only on a planned economic system without a market mechanism and competition. The militarized state power, recognizing only the plan and the monopoly, could not understand and use the opportunities provided by the market economy. What could be achieved with the rational use of raw materials, intellectual and labor resources, shows China. This country has not abandoned either socialist goals or party leadership, but it has given freedom to economic relations. As a result, China is experiencing rapid economic, social and political growth, overtaking yesterday's favorites in many respects. The countries with economies in transition continue to follow the economic strategy that ruined the Soviet Union. If Russia, Ukraine, Kazakhstan and some other countries can rely on their raw materials, cape resources, then for other states the repetition of the past is fraught with sad consequences.

In this regard, the role of the state is extremely important: if countries with economies in transition are able to use their intellectual potential in the conditions of liberalization of economic relations, they can be confident in their future and enjoy political, economic and technological independence. The right development strategy is inextricably linked with the full support of creative scientific and intellectual property. The same strategy should be developed and concretized at the level of sectors of public production and at the corporate level.

In countries with economies in transition, there are rudiments of planned (forecast) management both at the state and at the sectoral level. However, even in such conditions, numerous ministries and departments underestimate the main driving force of any social production - the results of intellectual activity, primarily in the field of science, technology and invention, as close as possible to the needs of specific industries. In the governing bodies responsible for the branches of production, it is actually curtailed research activities, patent, licensing and marketing research, which could provide information on trends both in industries and individual enterprises at home and abroad. Unfortunately, this most important activity is not expanding, not deepening, but shrinking. A number of ministries and departments do not have not only patent and licensing services, but also specialists in this field. Under such conditions, long-term sustainable development is impossible.

The most important factor in the economic strategy of competitive industries should be the full stimulation of the creation and use of intellectual property. However, most enterprises do not conduct research, development and marketing research, do not have large patent and licensing divisions. As a result, enterprises cannot modernize production on their own, and not only investments are not available for the introduction of third-party technologies, but also the results of relevant patent-licensing and marketing research. Therefore, enterprises can only “patch holes” in the existing technologies of a particular production, losing their competitive advantages in foreign markets day after day. The situation is somewhat better only at the largest, major enterprises, but the real potential of intellectual property management is not being realized here either.

Despite statements about the importance government controlled intellectual property, there are many unresolved problems both at the state and at the industry and corporate levels. The main problem is that an insufficient number of high-quality and demanded results of intellectual activity are being created, which are necessary to improve existing and create new high-tech industries.

The results of intellectual activity are necessary for the development of science, culture, improvement of education and other areas of social activity. Therefore, it is very important to understand why the effectiveness of intellectual activity is not as high as it is necessary for sustainable and high-tech development. Let's dwell on this problem in more detail.

The most important objects of intellectual property are created as a result of creative activity. The wide development of creative activity is unthinkable if the state does not create the appropriate conditions for any country to have a system of education, research and development. However, without the development of creative activity, the state has no future. Some assurances in the preservation, development and enhancement of the intellectual potential are not enough. It is necessary to raise the prestige of creative activity, not in words, but in deeds. This is not possible without adequate funding. Now there are no creative professions on the list of priority activities, which is natural given the miserable salaries of a scientist and engineer, teacher and teacher.

Countries with economies in transition have forgotten the experience of the Soviet Union in the development of education, science and technology. In a few decades, from an almost illiterate country, a great country, which has reached the forefront in science and education, culture and art, technology and production. The attitude of the state towards scientists and teachers, engineers and teachers also played a significant role. Scientists and university professors were one of the highest paid categories of Soviet society. The state understood that only the development of science and education could ensure the creation of new technology and industries.

There was an effective system of preparation for creative activity, primarily for scientific, technical and inventive creativity. Unfortunately, many methods of developing creativity are forgotten. Therefore, the primary stimulation of scientific, technical and inventive creativity is the most important state task.

Thus, at the state level of intellectual property management, the main thing is to create conditions for the comprehensive development of scientific research, development and inventive activity that meet the needs of modern production.

In conclusion, it is necessary to dwell briefly on the problems associated with an inadequate understanding of innovation.

Innovation is a foreign synonym for the words "innovations" or "innovations". The innovative way of development is the improvement, primarily of the production sector, using certain innovations.

However, innovation is different from innovation. It is one thing when an enterprise improves production using world-class innovations, and another thing is when innovations have the level of rationalization proposals that have long been forgotten or outdated. Therefore, the term "innovation" hides the level of innovation. Only world-class innovations can ensure truly innovative development of the economy.

World-class innovations are provided, first of all, by patented inventions. Patenting ensures that the technical solution has a world-class novelty, inventive step and industrial applicability. If an enterprise modernizes its production on the basis of modern patent or licensed solutions, then this is a truly innovative development path. If it "patches holes" by calling it innovations, then it misleads the state and society. Cunning with innovation leads to the saddest consequences, because, in the end, the company will lose all competitive advantages and become bankrupt. Such examples are well known.

The innovative development path requires the use of the most advanced developments and inventions. The possibility of such a development path is determined, first of all, by the scale and level of research and development work implemented in patented technical solutions, i.e. inventions that meet the needs of real production.

For innovative development, the main condition for its provision is a rational state system for managing intellectual property. An innovative path is unthinkable without the comprehensive development and strengthening of this system. Without the intellectual element, without the full support of the intellectual property management system, innovative development is impossible. Within the framework of this system, it is possible to establish directions and trends in the development of industries and individual enterprises, to determine the direction of rational investment - in their own developments or in the acquisition of licenses. Investments should be directed to the implementation of the most advanced technical solutions. Only in this case they can contribute to innovations that will ensure the sustainable development of the state and the solution of the most important social problems.

Thus, the management of the intellectual property system should become one of the priority areas for the development of countries with economies in transition.

intellectual property agreement

The intellectual property agreements include the following agreements:

Samples of these contracts are presented in the relevant sections.

To understand at what point which of these contracts must be concluded, let us consider in more detail the concept, characteristics, types and legal regulation of these contracts.

An author's order agreement is an agreement in which one party (the author) undertakes, at the order of the other party (the customer), to create a work of science, literature or art stipulated by the agreement on a material carrier or in another form (Article 1288 of the Civil Code of the Russian Federation). According to the characteristics, the contract is consensual, bilateral, may be paid or free of charge.

Under an agreement on the creation of a computer program (database), the contractor creates a computer program or database and transfers it to the customer.

The legal regulation of an agreement on the creation of a computer program (database) by order is carried out by articles 1288 - 1291, 1295, 1296 of the Civil Code of the Russian Federation.

Provides for the alienation of exclusive rights to created works;
provides for the transfer of certain exclusive rights to use the work;
according to which on cos this work the customer is not alienated exclusive rights and is not granted the right to use exclusive rights.

Under an agreement on the alienation of an exclusive right, the right holder transfers or undertakes to transfer the exclusive right belonging to him to the result of intellectual activity or to the means of individualization in full to the acquirer (Article 1234 of the Civil Code of the Russian Federation).

According to the characteristics, an agreement on the alienation of an exclusive right is real or consensual (transfers or undertakes to transfer), a bilateral agreement, may be paid or free of charge. Legal regulation is carried out by part 4 of the Civil Code of the Russian Federation.

Under a license agreement, the licensor grants or undertakes to grant the licensee the right to use the result of intellectual activity (individualization means) in the ways, volume and limits provided for by the agreement (clause 1 of article 1235 of the Civil Code of the Russian Federation).

The following types of license agreements are distinguished in the legislation:

Transfer of exclusive license rights,
transfer of rights of a simple (non-exclusive) license.

Simple or non-exclusive license - grants the licensee the right to use the result of intellectual activity or means of individualization with the licensor retaining the right to issue licenses to other persons. An exclusive license implies that the licensee is prohibited from granting licenses to others.

Legal regulation of contracts on intellectual property is carried out by Chapter 4 of the Civil Code of the Russian Federation, special laws on certain results of intellectual activity (means of individualization): Federal Law No. 209-FZ "On Geodesy and Cartography", Federal Law No. 169-FZ "On Architectural Activities in the Russian Federation", Federal Law No. 126-FZ "On State Support for Cinematography of the Russian Federation", Law of the Russian Federation No. 2124-I "On the Mass Media", Federal Law No. 316-FZ "On Patent Attorneys", government decrees and other regulatory legal acts.

Intellectual property protection

According to the established stereotype, real relations are regulated by law to a greater extent, and new ideas, technologies, and management decisions related to the sphere of intangible phenomena do not have adequate forms for assessing their value, economic and social criteria, and legal standards. This leads to the emergence of piracy in the intellectual sphere. Therefore, the development of technologies for the protection of intellectual property is one of the urgent tasks.

The protection of intellectual property is a key aspect of innovation. The very state of the patent system can either encourage or discourage companies from innovating. Due to the special intangible nature of intellectual property, the absence or deprivation of patent rights means the loss of the property itself. The patent system now covers all stages of new product development following basic research, including marketing. Therefore, its protection, as well as the suppression of unfair competition, are among the strategic goals of both companies and the state.

States are intensively improving the system of industrial property protection. Patent protection has spread to new areas (biotechnology, computer science, etc.), methods and technologies, including in business practice. In connection with the active dissemination of information technologies, the unification of national patent systems is taking place, and the protection of intellectual property is beyond the scope of national jurisdiction.

The European Union, concerned that most European patents are owned by US and Japanese firms, approved the Community Patent Regulations, which made it possible to make the costs of obtaining a patent in Europe comparable to those in the US and Japan, thereby enhancing the innovative capacity and competitiveness of European companies.

With the growth of commercial use of the Internet, the number of copyright infringement cases has increased dramatically. In the European Union, the Internet Patent Distribution Service (DIPS) is organized, focused primarily on the needs of small and medium-sized businesses and individual inventors.

The Russian Federation has adopted the Patent Law of the Russian Federation (Law No. 3517-1, as amended by No. 22-FZ) and the Law on Trademarks, Service Marks and Appellations of Origin (Law No. 3520-1, as amended by No. 166 -FZ, as amended No. 176-FZ). These laws regulate relations arising in connection with the legal protection and use of inventions, utility models, industrial designs, trademarks, service marks and appellations of origin.

At Federal Service on intellectual property, patents and trademarks, an advisory board has been established. Its main goal is to find effective ways to protect property, develop proposals for improving legislation, create an environment for healthy competition and a favorable investment climate.

In addition to the patent and license in most countries, forms of intellectual property protection are:

Copyright (the right to reproduce) is a legal norm that regulates relations related to the reproduction of works of literature, art, audio or video works. The Latin letter C in a circle applied to a work indicates that this work is protected by copyright;
- trademark and service mark - designations that serve to individualize goods, work performed or services provided, legal or individuals(legal protection in the Russian Federation is provided on the basis of their state registration);
- company name - after registration is termless and terminates only in the event of liquidation of the company, is not subject to sale. According to Article 54 of the Civil Code of the Russian Federation, "a legal entity that is a commercial organization must have a company name. A legal entity whose company name is registered in the prescribed manner has the exclusive right to use it."

In addition to the protection and protection of industrial property, the law regulates relations arising in connection with the creation and use of works of science, literature and art (copyright), phonograms of performances, productions, broadcasts of broadcasting or cable broadcasting organizations (related rights). These relations are regulated by the Law of the Russian Federation "On Copyright and Related Rights" No. 5351-1 (as amended by No. 72-FZ).

According to this law, copyright in a work of science, literature and art arises by virtue of the fact of its creation. The creation and exercise of copyright does not require registration of the work, other special design of the work, or compliance with any formalities.

The owner of exclusive copyright to notify about his rights has the right to use the copyright protection sign, which is placed on each copy of the work and consists of three elements: the Latin letter C in a circle, the name (name) of the owner of exclusive copyright, the year of the first publication of the work.

However, the exclusive rights to use an official work belong to the person with whom the author has an employment relationship (employer), unless otherwise provided in the contract between him and the author. The amount of royalties for each type of use of an official work and the procedure for its payment are established by an agreement between the author and the employer.

The law establishes cases when it is allowed to use a work without the consent of the author and without paying royalties (with the obligatory indication of the name of the author whose work is used and the source of borrowing). It is allowed to quote for scientific, research, polemical, critical and informational purposes from legally published works in the amount justified by the purpose of quoting; reproduction in newspapers, broadcasting of articles on current political and economic and other issues, as well as publicly delivered political speeches.

Copyright is valid throughout the life of the author and 70 years after his death. Copyright is inherited. The right of authorship, the right to a name and the right to protect the reputation of the author are protected indefinitely, but are not inherited. The expiration of the copyright on works means that they are in the public domain, which gives the right to any person to use it without paying royalties.

Article 49 of the law provides for civil, criminal and administrative liability for violation of copyright and related rights in accordance with the legislation of the Russian Federation. Authors and performers in case of violation of their personal non-property rights or property rights also have the right to demand compensation for moral damage from the violator.

The text of the law includes a new article "Confiscation of counterfeit copies of works or phonograms", which states that such works, materials and equipment used to reproduce works or phonograms, as well as other instruments of offense are subject to confiscation in judicial order. Confiscated counterfeit copies of works or phonograms are subject to destruction, except for the cases of their transfer to the owner of copyright or related rights at his request.

International agreements on the protection of intellectual property

There are a number of international agreements related to the protection of intellectual property in the world. These agreements include: the Paris Convention for the Protection of Industrial Property, adopted in 1883 and entered into force on July 7, 1884. Its last edition was adopted in Stockholm in 1967 (Russia is a party to this convention); the Berne Convention for the Protection of Literary and Artistic Works, adopted in 1886, last revised in 1971 (Russia acceded to it in 1995); The International (Rome) Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, adopted in Rome in 1961, entered into force on May 18, 1964 (Russia acceded to it on December 20, 2002); Intellectual Property Treaty for Integrated Circuits (IPIS Agreement), adopted in Washington on May 26, 1989 (Russia has not acceded to this agreement).

The problems of protection of intellectual property in the conditions of globalization of world trade are dealt with by the World Trade Organization (WTO), which, together with the World Intellectual Property Organization (WIPO) and other international organizations, has developed framework rules. They are set out in the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.

The agreement is one of the foundations of the global trading system. In Art. Article 7 notes that "the protection and enforcement of intellectual property rights should promote technological progress and the transfer and dissemination of technology to the mutual benefit of producers and users of technological knowledge, contributing to social and economic well-being, and to achieve a balance of rights and obligations."

TRIPS is currently the main international legal document on the basis of which legal regulation in the field of intellectual property is carried out. Members of the WTO may, but are not required to, implement more extensive protection in their national laws, provided that such protection does not conflict with the terms of the agreement.

The term "intellectual property" covers copyrights, related rights, trademarks, geographical indications (in Russian legal practice, the term "appellation of origin" is used), industrial designs, patents, layouts (topographies) of integrated circuits, classified information.

The agreement is based on existing international conventions and other agreements between WTO member countries, therefore TRIPS contains norms of a referential nature to the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, the International (Rome) Convention for the Protection of Performers, Producers of Phonograms and broadcasting organizations and the Treaty on Intellectual Property in respect of integrated circuits.

Characteristic of TRIPS is the obligation to provide foreign citizens from WTO member countries, national treatment in the field of intellectual property rights, as well as the most favored nation treatment, in order to prevent discrimination against them.

According to paragraph 2 of Art. 9 TRIPS "copyright protection should extend to specific implementations, but not to ideas, procedures, working methods, or mathematical concepts as such." A special article is devoted to computer programs and data compilation.

This article reads:

"1. Computer programs, both the source code and the object move, are protected as literary works in accordance with the Berne Convention.
2. Compilations of data or other information in machine-readable or other form which, by reason of the selection or classification of their content, constitute the result of creative work should be protected as such. Such protection, which does not extend to the data or information itself, does not affect the copyright existing in the data or information itself."

Compared to the Paris Convention, TRIPS contains innovations. A service mark is equated to a trademark, the number of cases when a trademark registration is possible to be refused (for example, if the mark is not visually perceived), the possibility of extending the term of registration of a trademark an unlimited number of times (initial registration, and then renewal are carried out for at least seven years). The agreement prohibits unreasonable restrictions on the use of a trademark in trade (use with other trademarks, in a special form). The principle of freedom of transfer of the mark is proclaimed both with the enterprise and without it.

Art. 25 TRIPS sets out the rules for granting and using patents. Patents are granted for any invention, regardless of whether it is a product or a process in all fields of technology, provided that they are new, contain an inventive step and are industrially applicable. The Agreement specifies the exclusive rights that a patent owner has. If the object of the patent is a product, then the owner has the right to prevent third parties, without the consent of the owner, from creating, using, offering for sale, selling or importing for these purposes the said product. If the object of the patent is a method, then the owner has the right to prevent third parties, without the consent of the owner, from using this method, as well as to carry out actions to use, offer for sale, sell or import for these purposes products obtained directly by the mentioned method. Patent owners have the right to transfer rights to a patent, transfer it by inheritance and conclude license agreements.

As far as licensing practices are concerned, the establishment of rules and conditions is left to the discretion of national law. Exceptions are certain licensing practices or conditions relating to intellectual property rights that restrict competition and may have an adverse effect on trade and hinder the transfer and dissemination of technology. The agreement does not prevent WTO members from taking appropriate legislative measures to prevent such practices.

TRIPS obliges WTO member countries to provide in their national laws mechanisms for the protection of the rights of national and foreign owners, up to criminal penalties for deliberate acts of trademark forgery and copyright infringement on a commercial scale. The punishment may include imprisonment, a fine, as well as the seizure, confiscation or destruction of counterfeit goods and tools of production that were used in the commission of the offense.

In Russia, the International Agreement on the Protection of Intellectual Property will be applied everywhere after the country joins the World Trade Organization.

Use of intellectual property

Intellectual property rights are rights that are recognized by law on objects of intellectual property.

There are three types of intellectual property rights:

1) An exclusive right is the right to use objects of intellectual property in any form and by any means.

At the same time, the exclusive right includes the ability to prohibit all third parties from using intellectual property without the consent of the copyright holder.

The exclusive right arises for all objects of intellectual property.

2) Personal non-property rights are the rights of a citizen-author of an intellectual property object. They arise only in cases provided for by law.

3) Other rights are heterogeneous in nature and are singled out in a separate group, because cannot be attributed to either the first or the second.

Examples are the right to access, the right to follow.

Company intellectual property

In the context of the global economic crisis, one of the few assets of companies that have suffered the least from its consequences are the intangible assets of enterprises or the so-called intellectual property (hereinafter referred to as IP).

The intensification of competition for the right to dominate certain markets with their products, which is characteristic of the crisis, enhances the role of the intellectual capital of companies due to the possibility of obtaining additional income from the sale of packaging equipment or the exclusive use of new technical solutions, the sale of patents, licenses, and an increase in consumer demand for products of well-known brands. . This is confirmed by well-known companies that have made a fortune not only in the development of new technologies and products, but also in the sale of licenses for them around the world: DUPONT, BAYER, MICROSOFT, INTEL, PEPSI-COLA etc.

The intellectual property of companies is becoming an increasingly expensive intangible asset, especially in industries where the main role is played not so much by production facilities (buildings, equipment) as by the profitability of patents, trademarks, copyrights, know-how and other intangible assets. For example, Hewlett Packard outperformed its competitors in the inkjet printer market by investing heavily in research and development and securing the results of its development with a large number of patents.

In order to extract the maximum benefit from existing or acquired IP objects, it is necessary to ensure their legal protection in a timely manner in accordance with the current national and foreign legislation, as well as under international agreements, implement them on a commercial basis and monitor the violation of exclusive rights arising from protection documents.

The objects of intellectual property are: objects of copyright (literary, artistic and scientific works, computer programs), objects of industrial property (inventions, industrial designs, utility models, trademarks, know-how).

The invention is a product or a method that carries new method making something or suggesting a new technical solution to a problem. Inventions are protected by patents, which grant the patent owner exclusive rights. This means that a patented invention cannot be made, used, distributed or sold without the consent of the patent owner. Patent protection is granted for a limited period, usually 20 years from the filing date of the patent application. Upon expiration, protection ceases and the invention enters the public domain and can be used for commercial purposes by others.

A trademark is a distinctive mark with which consumers identify certain goods and services. Trademarks date back to antiquity, when artisans affixed their hallmarks - signs on finished goods. Trademarks can be presented in the form of drawings (logos), any combination of words, letters, images, symbols, and even musical sounds. A registered trademark provides its owner with protection in the form of the exclusive right to use the trademark to designate goods or services or to license its use by others. The trademark is valid for 10 years and can be renewed at the request of the owner repeatedly.

An industrial design is an artistic and design solution for an industrial product. A patent is issued for an industrial design, which is valid for 15 years with the possibility of renewal. Assigning intellectual property rights is an important initial step, but more important is the effective management of an enterprise's intellectual property.

Intellectual property of the company should be considered as a set of key assets (intangible), which significantly increase the value of the enterprise. Currently, in a crisis, the issues of enterprise development strategy come to the fore. Equally important is the definition of the place and role of IP in the overall policy of the company. Therefore, one of the important tasks of each enterprise is the development of its own patent strategy, which will not only allow the maximum use of all available intellectual resources of the enterprise to obtain additional income from the use of IP, but also save the enterprise from possible mistakes, unnecessary material and moral expenses. To see in general how the company's activities will develop in this direction, in what ways - this is the key to success.

The formation of an enterprise's patent policy must begin, first of all, with an audit (accounting) of the existing intellectual property, the subsequent definition of patenting markets (internal or external) and the goals facing the company as part of its activities in these markets.

The main goals of the enterprise's patent policy in the domestic market are: protection from competitors, use in its own production, tax optimization, obtaining additional income from the use of IP and the sale of licenses, and advertising.

In this regard, it is necessary to choose actions to achieve the goals. Such actions include, for example, the choice of objects for patenting, the choice of objects that can be protected under the trade secret regime, the development of a brand strategy for an enterprise, etc.

As you know, business is not limited to only one country, so the issues of foreign patenting of IP objects should also be considered within the framework of the enterprise's patent strategy.

The main objectives of foreign IP patenting, in addition to traditional ones, as a rule, are the protection of equipment exports and the sale of licenses. Foreign patenting can also be carried out when providing assistance to foreign countries in the construction of turnkey facilities, the development of technological processes using inventions or know-how, with the cooperation of domestic enterprises with foreign companies within the framework of joint ventures, etc. Foreign patenting, i.e. obtaining patents or international registration of trademarks is carried out with the help of specialized patent law firms or patent attorneys.

In accordance with various international treaties, it is possible to obtain an international, European, Eurasian patent, an international trademark, which will enable entrepreneurs to protect their business not only in their own country, but also in other countries.

Foreign patenting is an expensive undertaking and the cost of it is estimated at more than one thousand dollars, therefore, when deciding to obtain a foreign patent, it is necessary to calculate all the pros and cons.

In accordance with various international treaties, it is possible to obtain an international, European, Eurasian patent, an international trademark, which will enable entrepreneurs to protect their business not only in their own country, but also in other countries. However, it must be remembered that any type of international patents, trademarks is valid only on the territory of those countries that were indicated in the primary application materials filed with WIPO.

Thus, your intellectual property is your valuable asset that needs to be nurtured and nurtured, then it will begin to bring you profit.

Intellectual property mark

Registered trademark mark

It is a special designation indicating that a trademark has been registered. As signs of warning labeling in world practice, the “R” icon, the letter combinations “TM” (short for trademark), “SM” (short for service mark), as well as the words “Trademark”, “Registered Trademark”, “registered sign”, “Marque deposee”, “Marca registrada”. Marking "K" (Registered) according to world practice can only be used by owners of officially registered trademarks. The symbol is placed directly to the top right of the trademark image.

Copyright sign

The copyright holder (the author or his successor) to notify of the exclusive right to the work belonging to him has the right to use the copyright protection sign, which is placed on each copy of the work and consists of the following elements: the Latin letter “C” in a circle; the name or designation of the copyright holder; the year of the first publication of the work.

A computer program and a database - software - a computer program are copyright objects that are protected as literary works. Registered computer programs are also marked with the sign: "C".

Sign Trademark

The designation Trade mark ™, “TM” or “™”, which is not regulated by the legislation in Russia, in foreign countries usually means that a trademark application has already been filed and when using this name after registering a trademark, you can receive a claim from the copyright holder.

Warning label patented - patented sign

Warning marking about a registered object - patented, protected by a patent for an invention / patent for a utility model / patent for an industrial design.

It is a designation: patented / patented, indicating that this object of intellectual property is registered and a patent has been issued for it. As signs of warning marking for the protection of industrial property objects in world practice, the designation has become widespread:

Patented / patented and indication of the patent number.

Service mark

SM - Short for "service mark".

Integrated Circuit Topology Protection Mark

To notify of his exclusive right to a topology, the right holder has the right to use the protection mark, which is placed on the topology, as well as on products containing such a topology, and consists of a highlighted capital letter"T" ("T", [T], (T), T* or [T]), the date of commencement of the term of the exclusive right to the topology and information that allows the identification of the right holder.

Intellectual Property Valuation

The need to evaluate any property arises in cases that can be conditionally divided into two groups, depending on what awaits this property or the enterprise that uses it in its economic turnover in the near future.

The first group includes situations when the legal status of the object of assessment or the enterprise changes:

A. there is a transaction for the sale or purchase of the property being valued;
b. the division of property between the owners of the enterprise is to be;
c. it is necessary to separate a small viable firm from a large enterprise;
d. the acquisition of one enterprise by another is planned;
e. the reorganization of the company is expected (for example, the transition from AOZT to AOOT);
f. liquidation of the enterprise;
g. received a warning about the alienation of the asset by the state.

In US legal practice, such cases are called the priority domain situation. In Russia, such phenomena are still little known, but it should be understood and explained to clients that the state, by alienating any asset from an enterprise, causes damage, which it must compensate. In the event of, for example, the expropriation of a land plot, goodwill may be lost, and as the conditions for the use of intellectual property change, a valuation becomes necessary. It is quite likely that the state may intervene directly in the use of intellectual property.

The second group includes situations where the legal status of the assessed asset and the enterprise using it does not change:

A. it became necessary to include an intangible asset in the authorized capital;
b. the conclusion of a license agreement is expected and it is necessary to justify the calculation of the fee for the use of the asset;
c. it is necessary to determine the amount of the author's remuneration;
d. it is planned to receive a bank loan secured by the exclusive rights of the owner of intellectual property;
e. a business plan is drawn up in order to attract investments;
f. the amount of tax on property is determined when it is donated or inherited;
g. intellectual property insurance is carried out;
h. compensation is calculated for damage caused, for example, by an infringer of exclusive rights.

This is far from complete list all possible situations encountered in business practice. The wording of a particular case in the valuation assignment is called the purpose of the valuation, and this, in turn, can determine the standard of cost, methods and procedures that are best used by the appraiser.

Professional cost standards

The variety of situations in which there is a need for the services of an independent appraiser implies a number of types of value that correspond to the specific conditions for the use of the property being valued. At the same time, in the most general form, two types are distinguished: value in exchange and value in use.

The value in exchange (exchange value) implies the likely selling price, provided that the market in which the transfer of property from one hand to another is open and competitive, where transaction prices depend on the ratio of supply and demand. During such a transaction, the seller of property must receive fair compensation for the costs that he incurred in creating his property or acquiring it, as well as for future income from its use, which he waives by selling his rights to this object. Thus, this value is determined specific circumstances and real economic factors. For this, it is often called objective value, emphasizing that the value in exchange is the most convincing for the parties involved in the planned transaction.

The most common form of this value is the reasonable (fair) market value (fair market value).

It is understood as the most probable price, expressed in monetary terms, at which, on the day of valuation, property could change hands from a willing seller to a willing buyer in a commercial transaction in an open competitive market, provided that both parties act competently, prudently and without coercion. .

In doing so, the following clarifications must be made:

1. By this it is understood that the market value is the estimated value that corresponds to the highest price that is realistically possible for the seller and the lowest price that is realistically possible for the buyer.
2. There are no special relationships between the parties (for example, parent and subsidiary companies) and they act independently each in their own interests without collusion and fraud.
3. The property must be presented on the market in the most appropriate way in the sense of obtaining the maximum price realistically possible. The duration of the exposure (marketing period) should in any case be sufficient to ensure that the property attracts the attention of an adequate number of buyers.
4. Market value is understood as the value of the property, calculated excluding trading costs and any associated taxes. The market value standard is always calculated when the customer of the valuation is a seller.

You often come across the term "value in use". It implies the value of the property in the views of a particular user. Since value in use is related to the needs of a particular subject, it is often called subjective value. The most commonly used form of such value is investment value. This is the cost of ownership for a specific investor or a group of investors who have certain goals and investment criteria (perceptions of the return on planned capital investments).

This value is calculated, as a rule, on the basis of the data provided by the valuation customer, without checking their compliance with market ideas about the parameters and possible volumes of sale of the property being valued. There is no provision here that the forthcoming transaction is treated as a hypothetical one that could take place between a typical seller and a typical buyer, the execution of which is necessary in determining a fair market value.

Intellectual property legal

The system of Russian intellectual property law consists of the following institutions:

A) copyright - a set of legal norms regulating social relations arising in connection with and in connection with the creation and use of works of science, literature and art;
b) rights related to copyright, rights of performers, producers of phonograms and broadcasting and cable broadcasting organizations;
c) patent law - a set of legal norms regulating property, as well as personal non-property relations related to them, arising in connection with the creation and use of inventions, utility models and industrial designs;
d) intellectual property right to a trademark (service mark);
e) intellectual property rights to the trade name;
f) intellectual property rights to topologies of integrated circuits;
g) intellectual property rights to computer programs and databases;
h) intellectual property rights to selection achievements;
i) legal relations in the sphere of commercial and official secrets.

The system of sources of intellectual property rights consists of:

1) The Constitution of the Russian Federation - in Art. 44 freedom of creativity is fixed; p. "o" art. 71 refers the legal regulation of intellectual property to federal jurisdiction;
2) The Civil Code of the Russian Federation - the provisions on intellectual property are contained in the articles (Article 8 of the Civil Code of the Russian Federation refers the creation of the results of intellectual activity to the grounds for the emergence of civil rights and obligations; in Article 128 of the Civil Code of the Russian Federation, the results of intellectual activity, including exclusive rights to them ( intellectual property), classified as objects of civil rights, article 138 of the Civil Code of the Russian Federation reveals the content of the concept of exclusive right (intellectual property), including the results of intellectual activity and equated means of individualization);
3) federal laws:
a) Copyright law;
b) Patent Law;
c) Trademark Law;
d) Law on legal protection of computer programs;
e) Law on Legal Protection of Layouts of Integrated Circuits;
f) Law of the Russian Federation on Selection Achievements;
g) Law on Commercial Secrets (provides for the protection of any information, the practical use of which in the field of commercial activity can give an economic effect);
h) Law on Protection of Competition;
i) Law on information, information technologies and information protection;
4) decrees of the President of the Russian Federation ("On public policy in the field of protection of copyright and related rights"; "On measures to implement the rights of authors of works, performers and producers of phonograms to remuneration for the reproduction for personal purposes of an audiovisual work or sound recording of a work"; "On the legal protection of the results of research, development and technological works of military, special and dual-use"; "On the state policy for the involvement in the economic circulation of the results of scientific and technical activities and objects of intellectual property in the field of science and technology");
5) Decrees of the Government of the Russian Federation (Decrees that approved the minimum rates of royalties for certain types of use of objects of copyright and related rights; Regulations on patent attorneys; Regulations on fees for patenting inventions, utility models, industrial designs, registration of trademarks, service marks, names places of origin of goods, granting the right to use the names of places of origin of goods);
6) international treaties and agreements.

In addition to the Constitution of the Russian Federation and the Civil Code of the Russian Federation, the legal protection of intellectual property is carried out by the following federal laws:

1. Law of the Russian Federation No. 5351 "On Copyright and Related Rights". It establishes relations arising in connection with the creation and use of works of science, literature and art (copyright), phonograms of performances, productions, broadcasts of broadcasting or cable broadcasting organizations (related rights). The scope, objects, duration of copyright are established.
2. Patent Law of the Russian Federation No. 35171. The law regulates relations arising in connection with the legal protection and use of inventions, utility models and industrial designs. The conditions for the patentability of inventions, utility models and industrial designs have been established. The circle of subjects of rights to inventions, utility models and industrial designs is defined.
3. RF Law No. 35201 "On Trademarks, Service Marks and Appellations of Origin". The law regulates relations arising in connection with the registration, legal protection and use of trademarks, service marks and appellations of origin. The Law provides definitions of a trademark and a service mark, appellation of origin of goods.
4. Law of the Russian Federation No. 3523I "On the legal protection of programs for electronic computers and databases". Relations arising in connection with the legal protection and use of computer programs and databases are regulated.
5. Law of the Russian Federation No. 35261 "On the legal protection of topologies of integrated circuits". Relations arising in connection with the creation, legal protection, as well as the use of the original topology of an integrated microcircuit, created as a result of the creative activity of the author and unknown to the author and (or) specialists in the field of topology development at the date of its creation, are regulated.
6. Law of the Russian Federation No. 56051 "On Breeding Achievements". Establishes the foundations for the legal regulation of property, as well as related personal non-property relations arising in connection with the creation, legal protection and use of breeding achievements.
7. Federal Law No. 98FZ "On Trade Secrets".
8. Federal Law No. 135FZ "On Protection of Competition".
9. Federal Law No. 149FZ "On Information, Information Technologies and Information Protection".

The Constitution of the Russian Federation and the Civil Code of the Russian Federation as sources of intellectual property rights

The fundamental normative act for intellectual property rights is the Constitution of the Russian Federation. The Basic Law of the Russian Federation in Art. 44 establishes that everyone is guaranteed freedom of literary, artistic, scientific, technical and other types of creativity, teaching. The right to freedom in all spheres of creative activity is an inalienable human right guaranteed by universally recognized norms of international law. The right of a person to engage in creative activity can be exercised both on a professional and amateur basis. Both creative workers are equal in the field of copyright and related rights, intellectual property rights, protection of the secrets of craftsmanship, freedom to dispose of the results of their work, state support.

The Constitution of the Russian Federation also stipulates that intellectual property is protected by law. The Russian Federation not only guarantees freedom of creativity, but also protects the right to its results. The exclusive right (intellectual property) of a citizen or legal entity to the results of intellectual activity and equated means of individualization of products, work performed or services (company name, trademark, service mark, etc.) is recognized.

The Civil Code of the Russian Federation regulates property and personal non-property rights in the field of intellectual property. The Civil Code of the Russian Federation establishes as the basis of civil rights and obligations as a result of the creation of works of science, literature, art, inventions and other results of intellectual activity (Article 8 of the Civil Code of the Russian Federation); classifies the results of intellectual activity as objects of civil rights (Article 128 of the Civil Code of the Russian Federation); recognizes and defines the exclusive right (intellectual property) to the results of intellectual activity and equivalent means of individualization of a legal entity, individualization of products, works or services performed (company name, trademark, service mark, etc.), establishes that objects of intellectual property can be used by third parties only with the consent of the copyright holder (Article 138 G CRF). The innovation of the Russian legislation was the adoption of the fourth part of the Civil Code of the Russian Federation, which combines all relations in the field of intellectual property. The provisions of the new part of the Civil Code of the Russian Federation, respectively, from this time, the laws regulating certain issues of intellectual property cease to have effect.

International treaties as sources of intellectual property rights

According to the Constitution of the Russian Federation, generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. It means that legal system RF includes not only domestic legislation, but also international law, which is used along with Russian. In addition, if an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty are applied (Part 4, Article 15 of the Constitution of the Russian Federation).

It follows that when the norms of international and Russian law compete, international law is applied. In order to apply the norms of international acts on the territory of the Russian Federation, it is necessary to ratify an international act or join an international treaty.

Registration of intellectual property

Intellectual property is one of the most important components of the development of the world market today. Copyrights and industrial property make a significant contribution to the economies of developed countries. In order to protect the results of their own mental work, copyright holders need to register an intellectual property object.

Intellectual property is divided into two main types:

Industrial property refers to trademarks and service marks, industrial designs, selection achievements, inventions and utility models. Such results of intellectual work can be patented or obtained a certificate of registration for intellectual property in the Federal Patent Office.

Copyright protects works of art and literature computer programs, topology of integrated circuits and databases for computers. Personal non-property rights to authorship, name, protection of the author's reputation are not alienated and transferred to other persons. Property copyrights for the distribution, reproduction, translation of works can be transferred under an author's agreement and be inherited.

Registration of intellectual property is mandatory for industrial property, legal protection of copyright and related rights is carried out without this procedure. Unfortunately, it is this fact that makes authors especially vulnerable, which is what scammers use to distribute the fruits of someone else's labor without the permission of the copyright holder (the so-called "piracy").

Obtaining a patent and registration certificate

In order to obtain a patent for intellectual property, an entrepreneur must submit an application to Rospatent. The package of documents must contain a description of the invention; for a trademark, you must also select a class (field of application). It is best to entrust the preparation of the application and the submission of documents to a patent attorney registered with the Federal Patent Office.

The registration of intellectual property may be refused if the submitted documentation is incorrectly executed, the class for the trademark is incorrectly selected, or the registered brand already exists in the Rospatent database. For patenting an invention, the criterion of novelty is especially important, if the claimed product does not correspond to it, the applicant may be asked to register it as a utility model.

Registration of intellectual property rights in the Russian Federation can take up to one and a half years. After a patent is obtained, the right holder has the right to file an application for registration with international patent organizations. If a trademark certificate is obtained, intellectual property and exclusive rights to it belong to the right holder for 10 years with mandatory re-registration.

Registration of intellectual property rights, which belongs to the field of copyright, is optional. However, the authors still seek to protect themselves from the claims of third parties and turn to the Russian Authors' Society. This organization allows you to register manuscripts of fiction and scientific literature, scripts for documentaries and feature films, projects, business plans, musical and choreographic works, and much more.

Unlike the patenting procedure, the registration of an object of intellectual property does not require an examination, only the applicant is responsible for the declared information. Exist international organizations, where you can register your works, for example, the Copyright Office at the Library of Congress (USA) and others.

Transfer of rights under the contract

An intellectual property agreement may be a license agreement, on the alienation of exclusive rights or an author's order. In the first case, the copyright holder (licensor) transfers to the licensee the right to use the result of his intellectual labor on the agreed terms. The license can be exclusive or simple, that is, it can be transferred to an unlimited number of persons.

If we are talking about a contract for the alienation of exclusive rights to intellectual property, then in this case the right holder transfers such rights to an invention, trademark or piece of art in full. Legal regulation allows this procedure to be carried out free of charge or for compensation.

An author's order contract implies the creation by the author of certain intellectual property objects (technologies, art objects, books, etc.) at the request of other persons. Distinguish between an agreement on the transfer of exclusive rights to a created work, the transfer of rights to use it and without alienation of exclusive rights and the possibility of their use.

Protection of intellectual property in court

Judicial protection of intellectual property is most in demand in cases where it is necessary to confirm the presence or absence of copyright in the plaintiff. Such a procedure is necessary to establish true authorship and allow the author to fully enjoy the rights established by law.

In addition to the recognition of copyright, judicial protection of intellectual property makes it possible to obtain compensation for damages, payment of compensation for moral damage, stop illegal use and bring to justice violators of copyright.

Fight against counterfeit

Intellectual property of counterfeit origin brings losses to right holders, and can also cause lost profits. To stop the illegal circulation of products, it is necessary to enter a trademark in the Customs Register of Intellectual Property of the Russian Federation. The entrepreneur submits an application to the Federal Customs Service, if it is approved, the customs authorities begin to track the import and export of these goods according to the parameters of the copyright holder.

Importers who supply counterfeit goods are subject to administrative liability with a fine, which ranges from thirty to forty thousand rubles for legal entities. Intellectual property of illegal origin can be destroyed at the request of the copyright holder, and its supplier is blacklisted by the customs service.

Unlike copyright, objects of industrial intellectual property are regulated in a different way: state registration of an object of industrial property is a necessary condition for granting such an object of state legal protection.

Registration of intellectual property is carried out in several areas: registration of copyright for a work, patenting of an invention, registration of a trademark, international registration of copyright rights are necessary to ensure and prove authorship, as well as for the further use of intellectual property objects by the right holder and licensee.

The protection of intellectual property rights is ensured by the methods provided for by law, taking into account the essence of the violated right and the consequences of the violation of this right. For various cases of violations of intellectual property rights, the legislation establishes civil, administrative and criminal liability.

The cost of intellectual property

Intellectual capital is considered the most important asset of many of the world's largest and most powerful companies; it serves as the basis for dominating the market and ensuring the continued profitability of leading corporations. It often plays a key role in mergers and acquisitions, and knowledgeable companies are increasingly taking advantage of licensing opportunities to move these assets to low-tax jurisdictions.

However, the role of IPRs in business is not yet fully understood. Standards accounting typically cannot capture the value of intellectual property rights and intangible assets (IPRs) in company accounts, and intellectual property rights are often not fully valued, used and managed. Despite the importance and complexity of issues relating to intellectual property rights, there is generally a lack of coordination among the various professionals involved in IPR matters. In order to better understand the role of IPR for a company, it is necessary to know the answers to the following questions: What intellectual property rights are used in the business? What is their cost (and therefore the level of risk)? Who owns them (can I sue, or can anyone sue me)? How can they be better used (for example, selling or buying technology under a license)? At what level do I need to insure IPR risk?

One of the key factors influencing the success or failure of a company is the degree of effective use of intellectual capital and risk assessment. Of course, company management must know the value of IPRs and related risks for the same reason that it must know the value of the company's tangible assets, because the company's management must know the value of all assets and liabilities under their management and control in order to maintain this value. . The use of IPRs can take many forms, ranging from the direct sale of assets, the establishment of a joint venture or the conclusion of a license agreement. Of course, their use increases the risk assessment.

Valuation is primarily a combination of the economic concept of value and the legal concept of ownership. The presence of assets is a function of their ability to provide income and determine the discount rate of this income. The cardinal rule of commercial valuation is this: the value of something cannot be stated in the abstract; all that can be specified is the value of the thing in a specific place, at a specific time, in specific circumstances. I adhere to this rule, and always ask the question “to whom?” before conducting an assessment. and "for what purpose?"

This rule is especially important when evaluating intellectual property rights. Typically, there will be one or two stakeholders involved and the score for each will depend on the specific circumstances. If these circumstances, and the circumstances of the rights holder, are not taken into account, the assessment will be meaningless.

For someone who evaluates intangible assets, calculating the value of intangible assets is usually not a big problem if they have received official protection through trademarks, patents or copyright. However, this does not apply to such intangible assets as know-how (which may include talent, skills and knowledge of work resources), training systems and methods, technical processes, buyer lists, distribution networks, etc. These assets may be equally valuable, but more difficult to define in terms of the revenues and profits they generate. For many intangible assets, a very thorough preliminary analysis needs to be carried out together with IP lawyers and company accountants.

There are four main concepts, namely: ownership value, market value, fair value and tax value. Ownership value often determines the price in negotiated transactions and often depends on the owner's view of value if he were dispossessed. The basis of market value is the assumption that if a comparable value has a certain price, then the price of the property in question will be close to it. The concept of fair value, at its core, is the desire to provide fair treatment for both parties. It recognizes that the transaction is not carried out on the open market, and that the contact between the seller and the buyer takes place in the form prescribed by law. Tax value has been the subject of case law throughout the world since the turn of the century, and it is a little-understood practice. There are quasi-concepts of value that touch on each of these major areas, in particular investment value, salvage value, and going concern value.

Methods for valuation of intangible assets

Acceptable methods for valuing identifiable intangible assets and intellectual property fall into three broad categories. These are market-based, cost-based, or based on estimates of past and future economic benefits.

Ideally, an independent expert would always prefer to determine market value by reference to comparable market transactions. This is quite difficult when valuing assets such as bricks and mortar, because it is impossible to find a completely comparable deal here. When evaluating an object of intellectual property, the search for a comparable market transaction becomes almost useless. This is not only due to a lack of compatibility, but also because the criteria for the sale of intellectual property are generally not well developed, and many sales are only a small part of a larger transaction, the details of which remain strictly confidential. There are other barriers that limit the usefulness of this method, such as specialty buyers, varying negotiation skills, and the distorting effects of peaks and troughs. economic cycles. Overall, this confirms my objection to statements such as "this is the rule of thumb in this sector".

Cost-optimized methodologies such as the "cost of creation" or "cost of replacement" of a particular asset assume that there is some relationship between cost and value, and this approach is not attractive except for ease of use. This method ignores changes in the value of money over time and does not account for maintenance costs.

Valuation methods resulting from the valuation of past and future economic benefits (also called income valuation methods) can be classified into four groups:

1) capitalization of historical profits,
2) methods for estimating the difference in gross profit,
3) methods for estimating excess profits,
4) method of exemption from royalties.

1. Capitalization of historical gains allows the value of an IPP to be determined by multiplying the sustained historical profitability of an asset by a multiple of the number that was determined after the relative strength of the IPP had been reached. For example, a multiple is determined after evaluating a brand in the light of factors such as leadership, stability, market share, internationality, profitability trend, marketing and promotional support, and protection. While this capitalization process takes into account some of the factors that should be taken into account, it has serious drawbacks, mainly related to the generation of past earnings. This method almost does not take into account future possibilities.

2. Gross margin valuation methods are often associated with the valuation of trademarks and brands. These methods consider differences in selling prices adjusted for differences in market value, ie the difference between the price fluctuation margin of a branded and/or proprietary product and a product without a brand name or with a generic name. This formula is used to provide cash flow and cost calculations. Finding generic patent equivalents and definable price differences is much more difficult than finding retail brand price differences.

3. The excess profit method considers the present value of the net tangible assets used as the basis for the estimated rate of return. It is used to calculate the return required to encourage investors to invest in these net tangible assets. Any income generated in addition to the profits required to encourage investment is treated as windfall generated by IPPs. Although theoretically based on future economic benefits from the use of assets, this method is associated with the difficulty of adjusting for alternative uses of the assets.

4. The royalty exemption method takes into account what a buyer can afford or be willing to pay for a license for similar IPPs. After that, the royalty stream is capitalized, which reflects the relationship between the risk and return of investing in this asset.

Discounted cash flow analysis considers the last three methodologies and is probably the most comprehensive valuation method. Potential earnings and cash flows need to be carefully assessed and then compared to present value by using a discount rate or rates. The mathematical modeling of discount cash flow confirms that €1 in your pocket today is worth more than €1 next year or €1 one year from now. The time value of money is calculated by adjusting expected future returns against the present value of money using a discount rate. The discount rate is used to calculate economic value and includes compensation for risk and for expected inflation rates.

When considering your asset, the appraiser will need to take into account the environment in which the asset is used to determine the potential for growth in market earnings. Forecasting market returns will be a critical step in the valuation process. Potential returns need to be assessed in relation to the longevity of the asset and its marketability, and therefore consideration of costs should be linked to an estimate of residual value or final value, if any. This method takes into account market conditions, possible performance and potential, and time value of money. It is illustrative in terms of cash flow potential, and not illustrative in terms of ownership, it attracts a lot of attention and is widely used in the financial community.

The discount rate applied to cash flows can be determined using various models, including common sense, the accumulation method, dividend growth models, and a weighted average fixed capital pricing model. The latter is likely to be the preferred option.

These processes will come to nothing if due diligence and an evaluation process do not allow the remaining useful life and decay rates to be determined. This will make it possible to determine the shortest of the following periods: physical, functional, technological, economic and legal. This process is necessary because, like any other asset, IPPs have varying capacities to generate economic returns depending on these key periods. For example, in a discounted cash flow model, it would be incorrect to expect to receive cash flows over the entire legal period of copyright protection, which can be over 70 years, when the valuation refers to computer software that has a short economic life of 1-2 years. . However, the fact that the legal term of a patent is 20 years can be very important for evaluation purposes, which can often be seen in the pharmaceutical sector when generic competitors rush to market as quickly as possible when the term expires. protection in order to weaken monopoly positions. The idea is that when making a valuation using a discounted cash flow model, the valuator should never make projections beyond these base periods.

It should be noted that in many situations, after carefully considering these periods in order to forecast cash flows, it is often impossible to give a reliable forecast for a period of more than 4-5 years. Mathematical modeling takes this into account in such a way that at the end of the period, when forecasting becomes useless and cash flows do not “fall out of the sky”, the final cost is used, which is calculated by using moderate growth rates (for example, inflation) that remain constant throughout the year , but also not taking into account this forecast in relation to the assessment date.

Although some of the above methods are widely used by the financial community, it is important to note that valuation is more of an art than a science and is an interdisciplinary study covering areas such as law, economics, finance, accounting and investment. It would be reckless to attempt an assessment using so-called industry/industry standards without considering the fundamental theoretical basis of the assessment. When valuing an IPR, context is very important and the valuer must take this into account when determining the true value of assets.

Types of intellectual property

Intellectual property is a legal term that refers to a set of rights granted to certain persons (authors or other right holders) to intangible objects. First of all, the term implies the temporary possession of copyright and related rights, the possession of valid trademark certificates and valid patents. The legal content of the term “intellectual property” itself is not defined in most countries.

Types of intellectual property:

Copyright regulates relations arising in connection with the creation and use of works of science, literature and art. The basis of copyright is the concept of "work", meaning the original result of creative activity, existing in some objective form. It is this objective form of expression that is the subject of copyright protection. Copyright does not cover ideas, methods, processes, systems, methods, concepts, principles, discoveries, facts.

Related rights

A group of exclusive rights created in the second half of the 20th century and the beginning of the 21st century, modeled on copyright for activities that are not creative enough to be covered by copyright. The content of related rights differs significantly in different countries. The most common examples are the exclusive right of performing musicians, phonogram producers, broadcasters.

Patent law

Patent law is a system of legal norms that determine the procedure for protecting inventions, utility models, industrial designs by granting patents. As an industrial design, a new and original artistic and design solution of an industrial or handicraft product, which determines its appearance, may be protected.

Means of individualization

A group of intellectual property objects, the rights to which can be combined into one legal institution for the protection of marketing designations. Includes such concepts as: trademark, trade name, appellation of origin, domain name.

Production secrets (Know-how)

Production secrets (know-how) are information of any nature (original technologies, knowledge, skills, etc.) that are protected by the trade secret regime and can be sold or used to achieve a competitive advantage over other business entities. The protection of such information occurs in different ways: if it is technical documentation, then a limited number of people know about it (as a rule, they sign a “trade secret” agreement); if this is an invention, then innovations are protected in such a way that the know-how object cannot be revealed during technical inspection (example: the engine mechanisms of machine tools are made in such a way that the material decomposes in air, and therefore it is impossible to understand the principle of operation of the installation (the manufacturer of such machines is Japan) .

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Scientific Concepts for Understanding IP Law

*This material is over three years old. You can check with the author the degree of its relevance.

Scientific Concepts for Understanding IP Law

Maxim Labzin, INTELLECT-S, investigates the problem of scientific understanding of intellectual property, which was put in the title of the article.

The history of the formation of laws on the protection of exclusive rights clearly shows that their goal was and still remains mainly the protection of property interests. And if the need to protect the property interests of manufacturers and traders was initially recognized, then for some time now it has also been the interests of authors, whose creative work creates works, inventions and other protected objects. But the recognition, consolidation and development of the exclusive right has always met with opposition, which was based on the idea of ​​free competition and the public interest to get wide access to the products of creative work.

Such a clash of private and public interests forced pundits to look for socio-economic, ideological or general legal justifications for exclusive rights in order to explain the reasons why public interests should still be infringed to one degree or another in order to protect the property interests of right holders.

All more or less clearly formed views on this issue can be divided into the following areas (theories).

Personal theory

This theory proceeds from the main consideration that the results of mental activity are a kind of continuation of the personality of their creator, since they reflect its features. Such manifestations of personality, as well as the ability to use the results of one's creative activity in civil circulation, are subject to protection by virtue of the theory of natural rights and insofar as their unauthorized use by another person is an unacceptable encroachment on the identity of the creator. This protection is provided by the section of civil law on personal rights, to which the exclusive right gravitates. The property side of this right is secondary to the non-property side.

The main developer and active supporter of this theory was the famous German law professor Otto Gierke. It was very popular in France in the 18th century. However, this theory is unable to explain or even justify the market circulation of the results of intellectual labor (rights to them), the ownership of rights by other owners than the author, and the emergence of non-creative objects of exclusive rights. In fact, as S.A. Babkin rightly notes and as we will see below, the vast majority of intellectual property objects are divorced from the personalities of their creators and exist in an objective, not subjective sense. In this regard, this theory is of value, perhaps, only as an explanation of the personal non-property rights of the authors. Also, some historical merit can be recognized for her in substantiating and securing the exclusive right for the author, the transition of this right from the sphere of public law to the sphere of private law. This merit was especially great in the era of bourgeois revolutions, when society got rid of all monopolies issued by monarchs, but did not abolish intellectual property.

Contractual (contract) theory

Supporters of this theory saw in each case of granting an exclusive right to a particular subject a kind of deal with the state, according to which this right is granted for a certain period and in exchange for the public disclosure of the object. This allows the public to derive some benefit from the object during the term of legal protection and to a greater extent after its expiration. In other words, according to this theory, the exclusive right is a kind of payment for the benefit that the creator of the object gave to society.

This theory can be recognized, perhaps, only for the value that it explains the need to find a certain balance of private and public interests in regulating the legal relations under consideration, answering, for example, the questions why the exclusive right is urgent and why it is impossible to issue patents for already known or, conversely, insufficiently disclosed inventions? However, in essence, it is incorrect, since the view of granting any right as a deal would mean the right of the state to decide this issue at its own discretion each time, which does not correspond to modern views. In addition, this theory does not correspond to the absence in modern law of such a condition of protectability as the public utility of an object.

Remuneration theory (labor theory)

This theory became widespread in the era of the formation of intellectual property law, played an important role in the transition of exclusive rights from the sphere of public rights to the private sphere, and still has numerous supporters. It is based on the consideration that civil law should regulate and protect the appropriation of any objects that are the result of labor and have value. These include the results of mental activity.

Indeed, as I.A. Pokrovsky wrote, in addition to material goods, little by little the individual begins to appreciate intangible, spiritual goods, and the law begins to give them protection - at first partial, weak and unsystematic, and then more and more completely. As shows historical development intellectual property rights, awareness of the value of the results of mental activity and the willingness to pay for them came with the development of technology that could make the use of these results massive, as well as with the cultural development of society itself, as V.A. Belov writes.

At the same time, the original owner of the object must be its creator, so that he can receive remuneration for his work and (or) reimburse his costs. However, supporters of this theory have different preferences for the interests of authors and the interests of other copyright holders. Some see the purpose of legal protection primarily as rewarding authors. Others also pay tribute to the interests of business owners.

So, G.F. Shershenevich wrote: “ We see the goal of establishing copyright in the need for material support for the author, in eliminating the need for him to find sources of subsistence, in ensuring an independent position in society, but not in simple protection of the results of labor, as is the case in economic activity ... With the existence of an economic system , built on the principles of private enterprise, obliging everyone to personally take care of the conditions of their material well-being, the only possible way to ensure the authors is to put them on a par with economic figures and leave them, personally, on general economic grounds, to look after their own interests.» . A.A. Pilenko spoke in the same spirit: “The insufficiency of all the above methods to ensure that inventors receive remuneration forced them to turn to the system of issuing so-called patents (privileges) for inventions. The remuneration of the inventor, by issuing a patent, becomes organically dependent, firstly, on the merits of the invention ... Secondly, it is also made dependent on the diligence that the inventor shows in such a difficult matter as spreading a new idea ... " .

However, we must not forget that the emergence of an exclusive right was caused by the need to create conditions under which production and trade activities related to the circulation of intellectual products would be profitable. These commercial interests have not disappeared. And today, the creation of these products is often provided not only, and sometimes even not so much by the creative work of the author, but by the conditions created by their employers, investors and other similar carriers of property interests: the availability of equipment, the appropriate organization of creative work, information resources, payment for creative work with acceptance risk of creative failure, etc. Accordingly, speaking of the exclusive right as a reward, one should expand such an understanding of it, recognizing it as a means of reimbursing costs, making profit by all other right holders, and not just authors. Therefore, the modern understanding of the goals of exclusive law from these positions looks like this: everyone who has made efforts (labor, investments) to resources that do not have an owner has the right to complete power over the results of labor.

The value of this theory lies in its compliance with the general principles of private law, which does not tolerate willful enrichment at someone else's expense, unauthorized use of the results of someone else's labor without providing an equivalent. The criticism of this theory is that it is unjustifiably limited to the consideration of the property sphere of the right holder, ignoring other needs of modern society.

Utilitarian theory

Proponents of this theory honor intellectual property rights by maximizing the public domain. They argue that intellectual property law is the basis of the market for intellectual products, which, in a competitive environment, allows each intellectual product to be appreciated and thereby stimulates their creation. It is often said that without copyright and patent rights, people would still write essays and create inventions. It's right. But one can hardly doubt that the composition of intellectual products on the market would be different. For better or worse, one thing is clear: we probably would not see many so-called commercial products of a purely entertainment orientation. Note that the beginnings of this theory are also observed in the labor theory. For example, in the above statement by A.A. Pilenko. But in general, it is more characteristic of the Anglo-Saxon legal doctrine of "copyright", while continental Europe has always gravitated towards theories in which the interests of the author are at the center.

Social planning theory

It does not reveal any fundamental differences from the utilitarian theory. It also puts at the forefront the positive social effect that provides the right of intellectual property, but to stimulate the creation of intellectual products it also adds such a consequence as the independence, creative independence of authors. Therefore, the utilitarian theory and the theory of social planning should, perhaps, be considered as a single one, the essence of which is the opinion that intellectual property can also achieve other economic and social goals, in addition to protecting the property interests of copyright holders, which is seen as a promising way in finding a balance of interests under legal regulation. Certain thoughts in this direction can already be found in G.F. Shershenevich (see the above quotation).

Perhaps, each of the theories discussed above contributes to understanding the goals of legal regulation of intellectual property relations, which, in turn, allow finding one or another balance in protecting the private interests of copyright holders and public interests. One can agree with S.A. Babkin, who, bringing all known views on the goals of legal regulation to a common denominator, came to the following generalization.

The main goal of intellectual property law is the creation by legal methods of such an economic structure that allows society, within the framework of market mechanisms, to evaluate the labor invested in the intangible result of human activity. At the same time, the need to recognize and evaluate such labor is justified both ideologically (all labor must be rewarded) and objectively economically (industries in which intangible products are created must be provided with an influx of resources). Thus, the right of intellectual property should ensure the turnover and evaluation within the framework of this turnover of the results of intellectual activity and other objects equated to them in the legal regime.

However, the above theories describe neither the legal methods of ensuring such an economic structure, nor the very essence of the exclusive right, nor its place in the system of other rights, and therefore their importance should not be overestimated. Pilenko A.A. called such theories first-order genetics, while noting that it is impossible to derive any content of exclusive rights from them. The thesis “the invention must be protected and must belong to the author who created it” is undeniable, but how will such power be provided? It even got to the point that supporters of the same genetic theory gave directly opposite conclusions about the essence of such power. The influence of such theories on the content of specific statutory rights and obligations and the choice of legal technique used is small. L. Bentley and B. Sherman, however, admit that, for example, adherence to theories of the natural law direction (I would include personal and proprietary theories) could lead to conclusions about the specific content of the exclusive right, for example, the need to provide exclusive rights indefinitely. However, it is difficult to agree with this, since the theory of natural rights, which belong to everyone from birth (for example, the right to own their own things), allows for various restrictions on them in order to protect public interests. For example, the urgency of the right can also act as such a restriction in cases where this allows you to find a balance of interests.

In this regard, theories that, taking into account the legal essence, attribute the exclusive right to one or another type of civil rights, are of greater interest. Today, only two developed theories of this kind are known: proprietary and monopolistic. A.A. Pilenko called such theories second-order statics.

proprietary theory

This theory appeared as soon as it became necessary to explain the exclusive right precisely as a right, and not as a favor of the king, granted by him at his own discretion. In the absence of other known ways normative consolidation of the property power of the subject over the object, it was said: the right of the author, who creates a product with his labor, is the right of ownership of this product, and the unauthorized use of the object created by him is theft. And even in the legislation of a number of states it was determined that the work and invention are the property of its author. For example, the French patent law of 1791, the law Russian Empire 1830 “On the Rights of Writers, Translators and Publishers”, Code of Laws of the Russian Empire 1887. And one of the French defenders of the proprietary theory said this: “We ask that the word “property” be inserted into the text of the law - and we ask for important reasons ; words have a tremendous influence on those minds that cannot penetrate to the essence of things. A superficial person will respect his neighbor's invention only when the law warns him that the invention is property. If the law remains silent on this important issue, then immediately there will be envious people who will say: "This is a monopoly, down with it!" It is to this theory that we owe the appearance of the terms "intellectual and industrial property", which are still actively used in international and national legislation, the names of international organizations.

Pretty soon it became clear that there are many differences between real property and the right to the results of mental activity, predetermined by the intangible nature of the object of the latter. Recognizing this, the proponents of the proprietary theory pointed out that intellectual property is a “sui generis” (kind of) property and still saw in it much in common with the right of real property: the classic triad of powers “to own - use - dispose”, the grounds for acquiring rights and some other points. They often drew the theoretical basis of their views from the concept of so-called incorporeal things (res incorporales), which was known to Roman law.

However, this concept cannot give the proprietary theory a reliable theoretical basis. The fact is that here we are dealing with a kind of fiction, a special trick of the Roman lawyers who ranked rights as things in order to justify their negotiability. But in the future, legal science and legislators of most countries of the world abandoned a broad understanding of things, and today it is material objects of rights that are called things, and the right of ownership is understood exclusively as a property right.

It should also be noted that the domestic doctrine is dominated by the view that one can only own an object that has spatial localization, and one cannot own an intangible good. The definition of Prof. V.A. Belova, who defines ownership as a real-life exclusive (monopoly) ability of a well-known person to determine the conditions and mode of access of other (outsiders) persons to a well-known thing. That is, possession is understood by modern science not as any legal power of the subject over the object, but only the power that lies in the possibility of physical control. Perhaps, it is the absence of the right of ownership that is the main difference between the exclusive right and the right of ownership.

The inability to own an intangible object, in turn, also predetermines the peculiarity of the disposal: it is impossible to dispose of an intangible object (to decide its legal fate). For example, it cannot be destroyed or transferred to anyone. You can only dispose of the right to it or a material carrier.

For these reasons, today the proprietary theory has practically lost its relevance, and the phrase "intellectual property" is conditional. No one seriously claims that intellectual property is property in the sense in which it is understood by the legislator in the section of private law on rights in rem. Thus, the draft federal law of the Russian Federation on amendments to part four of the Civil Code of the Russian Federation contains a new paragraph 3 of Art. 1227, which states that the provisions of the section of the Civil Code of the Russian Federation on property rights do not apply to intellectual property rights. That is, the legislator does not even see the analogy of the law between them.
monopoly theory

This theory, like the proprietary one, determines the place of the exclusive right in the system of other rights and is most relevant in the field of patents.

As already noted, the exclusive right has long been regarded as a monopoly. Many, in the heat of the struggle for the preservation and strengthening of this right, tried to deny this, thereby avoiding the well-known arguments about the dangers of monopoly for economic life. However, in reality, the exclusive right to produce, for example, vodka with more or less specific characteristics of its composition is essentially the same monopoly as the state monopoly on the production of vodka in general (if it were introduced), with the only difference that if the second covers all variants of this drink, then the first is only a part of them, and also very indefinite. Any version of vodka will fall under the patent if it contains the features specified in the independent clause of the patent formula or equivalent to them and has become known (clause 3 of article 1358 of the Civil Code of the Russian Federation). Another example: the owner of a patent and only he has the right to manufacture products according to the method described in the patent. Trademark rights are not deprived of this characteristic: the trademark owner and only he has the right to import goods marked with his trademark.

This theory found critics who said that the monopoly is not a legal construct. However, A.A. Pilenko believed that such a monopoly still has a certain civilistic distinguishing feature, which is the generic nature of this right, that is, when its object is something that is abstractly defined and includes a pre-defined list of specific objects.

Apparently, one can agree with this, although the science of civil law has not recognized the great value behind this theory. Apparently, due to the fact that civil law does not know other monopolies of a private legal nature, in modern conditions such a phenomenon cannot spread, and therefore the need to investigate its characteristic features does not make sense. In addition, this theory does not penetrate into the legal mechanism for protecting the interests of copyright holders, describing it only in the most in general terms and naming the place of the exclusive right among other rights. However, the term monopoly itself is found quite often in the characteristics of intellectual property. For example, in A.V. Belov's textbook of civil law we see the title of the paragraph on the secrets of production: the actual monopoly on intangible objects as a civil law form.

At the same time, it should be noted that the establishment of a monopoly is more likely to be characterized by such a phenomenon as the imposition of a ban on use by third parties than a sanction for the monopolist to use. For example, a monopoly can be introduced (and often is introduced) at a time when both the future monopolist and its competitors, without any restrictions, were already carrying out activities that were subsequently monopolized. In this regard, it is absolutely impossible to agree with Prof. V.I. Eremenko, who believes that the legitimacy of a patent monopoly indicates the positive content of the exclusive right. In particular, his assertion that “under this monopoly the patent owner exercises his right to use a patented invention, utility model or industrial design” looks erroneous. Monopoly does not give a special opportunity to use that was previously absent, but deprives others of it. Therefore, the use of the object by the monopolist has nothing to do with monopoly and monopolization.

In the teachings of A.A. Pilenko, there are other considerations about the essence of patent law and exclusive law in general, which characterize the legal structure no longer in terms of its place in the system of civil rights, but from the position of the legal mechanism for ensuring the property interests of the right holder, that is, they affect the essence of the exclusive law as a regulator of human behavior. These considerations, as will be shown below, despite all the later achievements of the legal doctrine, are still relevant and can be used to solve the problems facing science, legislation and judicial practice.

So, in modern civil law, it is unanimously recognized that the mechanism for establishing the ownership of an object of intellectual property by a specific person or persons is largely artificial in the sense that if real rights, as it were, formalize social phenomena that exist without them (for example, the fact that a thing belongs to a certain person), then exclusive rights create appropriate social relations of a new type in accordance with the goals of legal regulation. The main goal, as shown above, is to make the inherently intangible results of intellectual property and other objects marketable goods capable of being traded on a reimbursable basis. Before us is not a simple reflex reaction of law to objective economic reality, but rather a serious transformation of it.

In other words, the dominance of the subject over the intangible object provided by the legislation is purely legal, and not factual. However, different points of view were put forward as to whether the exclusive right has positive or negative content.

Prohibition theory (negative theory)

A.A. Pilenko believed that the essence of the exclusive right lies in the right to prohibit the use of an object by other subjects, and exclusivity in one's own use is only a reflex (consequence) of this prohibition. The scientist's arguments in favor of the greatest adequacy of just such an approach boiled down to the following:

• everyone can use their object (invention) without the exclusive right (patent privilege), the essence of the latter is to ensure the exclusivity of use, and it is ensured by the prohibition and only by it;
• the exclusive right does not cancel and does not conflict with public law prohibitions only if it is thought of as the right to prohibit, and not as the right to use;
• co-owners of an exclusive right have a general right of prohibition, which does not apply to each of them, therefore each of them can use their own object, but they can only allow the use of another jointly;
• relations between the holders of dependent patents can be determined without conflicts only if their rights are considered as the rights of mutual prohibition to each other to use the objects patented by them.

Drawing parallels with controversial issues about the content of absolute legal relations in general, A.A. Pilenko wrote: “Patent law undoubtedly has two elements: positive (“the right to fabricate”) and negative (“the right to prohibit fabrication”). Nobody denies this duality. But then an additional question arises: which of these two elements is more fundamental, more significant from the point of view of structural economy? ... Everywhere you turn, the negative construction presents considerable conveniences for structural engineering everywhere... Patent law is the right of prohibition: the positive possibility of fabrication is not a legal concept, but economic function legal institution of prohibition".

It should be noted that such an understanding of the exclusive right was not proposed for the first time by A.A. Pilenko. Back in the 19th century scientists Laband and Gareis argued that the legal essence of patent law is not a positive right, but a purely negative right to prohibit anyone and everyone from exploiting a given invention. Own right of exploitation belongs to every inventor and without a patent.

A.A.Pilenko's reference to a similar problem in understanding the right of real property is not new either. Thus, he cites the following reasoning by Wrangel, expressed in 1866: the basis of material property is the joint and several obligation of third parties to refrain from interfering in the sphere of the owner, and intellectual property can be reduced to the same construction, because the author has the right to demand from outsiders not positive any actions, but only refraining from them, therefore the essence of copyright is primarily the exclusion of third parties, that is, the same as with material property.

But, of course, one should recognize the great merit of A.A. Pilenko in that he comprehensively substantiated and developed this approach using illustrative examples of how patent law manifests itself in the situations indicated above, and also allowed this approach to be extended to any exclusive right at all. However, at that time such an understanding of the exclusive right did not yet find reliable support in the theory of legal relations, and the key function of obligation for many types of legal relations as a means of realizing the opportunities guaranteed to the authorized person was not identified in civil law. In domestic civil law, such views began to be expressed somewhat later, and they received theoretical justification (primarily in the works of O.S. Ioffe) only in the second half of the 20th century. Subjective civil law was conceived most often as a measure of possible behavior, a measure of freedom, and such a view, apparently, was rooted in the recognition of the dominant role of the state in sanctioning any rights and freedoms.

In addition, the right to prohibit, which A.A. Pilenko insisted on, really cannot be presented in statics, and opponents of the negative concept often point to this: the right holder cannot, and should not, declare his prohibitions to everyone and everyone. Nevertheless, the presented view on the content of the exclusive right had very authoritative supporters. So, G.F. Shershenevich wrote: “The essence of the right to an industrial invention lies in the prohibition for everyone, except for the inventor or his successor, to use this invention without the permission of the subject of law.”

positive concept

Proponents of a positive construction argue that the right holder has the right to take actions to use the object, and this right is secured by prohibiting everyone and everyone from doing the same actions. Some supporters of the positive construction also believe that without such authority as use, it is impossible to talk about the “assignment” of an object to a certain subject, about its power over it.

However, the question immediately arises: is it possible to ensure the right of the copyright holder to perform them with the help of a ban on third parties to perform actions with an object? Indeed, from the fact that third parties will use the object, the copyright holder will not lose his ability to use it.

In response to this, supporters of the positive construction clarify that it is the exclusive right to use that is implied as the content of the exclusive right. S.A. Babkin writes: “The fact is that the function of a patent is not to grant the right to practical use invention, but in granting the exclusive right to the practical application of the invention.

But by doing so, they recognize that the main thing is not so much the ability of the authorized person to perform actions, but rather his exclusive position among other persons and the prohibition that lies on third parties, which ensures such a position. Accordingly, the addition of the characteristic “exclusive” to the right does not protect the positive concept from criticism, but, on the contrary, weakens it, since it addresses the question: what is the position of all other (obliged) persons and whether the main burden in protecting the interests of the right holder does not lie on legislative definition of the proper behavior (inaction) of precisely such obligated persons, and not the actions of the right holder himself? This brings us closer to understanding the mechanism of legal regulation, clarifying the alignment of forces in legal relations. And for legal science, it is important to answer the questions: in what way, with the help of what construction of subjective law and by granting what powers arising from it or by assigning what duties, it is possible to achieve the exclusivity of the position of the right holder in the shortest way and with the least contradictions and what this exclusivity consists of.

Based on the lack of clarity on this issue, the view of the authoritative domestic theorist of intellectual property law V.A. Dozortsev is curious. He referred to the number of property rights to objects of intellectual property the right to use and the right to dispose of this use. It would seem that a negative concept with such a system of views should be rejected by him. However, the author further unexpectedly points out that the right of use consists not only in the ability of the copyright holder to perform actions exclusively, but also in the prohibition of all third parties to perform such actions without the permission of the copyright holder. And legal protection, in his opinion, means prohibition.

It should be noted that the negative theory finds more and more support from the theory of legal relations, where the view was confirmed that in absolute legal relations, the passive duty of all third parties to refrain from relevant actions plays a key role in ensuring the opportunities of an authorized person. At the same time, the thesis that the power of the subject over the object must necessarily include the authority to use it remains controversial. Isn’t my position such as power when, for some reason, and not having the legal opportunity to use it (for example, due to public prohibitions), I don’t allow another person to do this, although another person would have such a legal opportunity and would start using it, if not for my perseverance? I believe that this is the real power.

The positive concept of exclusive right does not correlate well with the approach to the legal regulation of private relations, which is expressed by the phrase: "Everything that is not prohibited is allowed." In the private law sphere, granting the state of the subject one or another opportunity to act is not quite typical: it rather decides when and in what way the freedom and initiative of subjects of civil law should be limited.

Finally, at present, the following objection to the negative construction of the exclusive right seems untenable: the right of prohibition cannot be implemented in practice, where it still boils down to the fact that the right holder can use his object, and other persons must refrain from such use. Indeed, in this part, the views of A.A. Pilenko seem to be erroneous or, rather, inaccurately formulated. In fact, any absolute right is characterized by the fact that all third parties are obliged to refrain from committing certain actions, regardless of whether the bearer of such a right forbids them or not. This general prohibition follows from the law, and not from the will of the right holder, and is valid until the owner removes it with his permission. This creates the economic value of the exclusive right, as well as the right of ownership. It exists even when no violation has yet occurred, when the copyright holder has not yet put forward any requirements and prohibitions to anyone, because the instruction arising from the law and addressed to everyone: “You must not use the object of intellectual property”, accompanied by the stipulated liability in case of its violation, just keeps third parties from invading the sphere of interests of the copyright holder.

Accordingly, from the standpoint of the modern theory of legal relations, the negative concept of exclusive right can be presented as a hypothesis: the exclusive right is, of course, not the right to prohibit, but the obligation of all third parties to refrain from the actions specified in the law on the use of the object, which is the main element of such an absolute legal relations, since it is precisely this that allows the right holder to benefit from the intangible benefit that belongs to him. Is this not what V.A. Khokhlov writes about: “The exclusive right should not contain such an element as the “right to prohibit” others from using the work, because it is precisely based on the need for everyone to apply to the copyright holder for the consent of any use, i.e. . Is this prohibition meaningfully already included in the exclusive right? .

Currently, there is a new round of discussion in the literature on the content of the exclusive right. The number of supporters of the negative theory was replenished by E.P. Gavrilov, V.Yu. Dzhermakyan, E.A. Dedkov, V.A. Meshcheryakov, N.V. The law corresponds to the obligation of all third parties to refrain from actions that are not agreed with the author, while the obligations of passive subjects have the form of a prohibition. ... and here the prohibitive element plays a leading role, unlike, for example, the right of ownership.”

Note that it is the negative concept that underlies US patent law, where the rights arising from a patent for an invention are defined as follows: “the right to exclude (not allow) others from (to) the creation, use, offer for sale or sale of an invention in the USA or importation of the invention into the United States and, in the case where the invention is a process, the right to exclude (prevent) others from (before) using, offering for sale or selling in the United States, or importing into the United States products made using such a process” 36

Probably, you have ever come across such an inscription on Youtube as “the video is blocked by the copyright holder”. In such cases, one can only sigh in annoyance and exclaim that, they say, "these copyright holders do not allow you to breathe freely." But when you write, create something, you yourself encounter piracy, you are already on the other side of the barricades. Indeed, what is the logic? If you like, for example, a singer, then why not support him financially by buying a new album? Artists' income suffers greatly from illegal copying and distribution of songs. In the end, it may come to the point that it will be unprofitable to continue a career. In order for cultural figures (writers, artists and other professions) to be able to defend their rights and stop the loss of revenue, there is the concept of "intellectual property". And it is protected by law.

What is intellectual property

Intellectual property is the legally protected right of a person (natural or legal) to a product of mental activity. Let's say a writer has written a novel and entered into an agreement with a film company to allow the plot of this book to be used in a new film. Then both parties - the writer and filmmakers - will be subjects of intellectual property rights. A writer (author, performer, inventor…) is called a creator. The film company or other persons interested in benefiting from his property and who have entered into an agreement with him are called copyright holders. The object of legal relations is the right to a work (picture, article, film ...). In this case - to borrow the plot of the book.

But all things cannot be called creation. The concept of "intellectual property" is applicable only to such objects:

• literature, scientific works and works of art;
• reports and television programs;
• sound recordings and other performing activities;
• inventions, technologies, trade secrets (know-how);
• industrial designs - significant improvements in the operation or design of existing products;
• trademarks, emblems and other trade marks;
• programs for electronics (from firmware to games);
• objects of related rights.

Since July 4, 1967, the World Intellectual Property Organization has been operating to this day. She deals with the protection of works, the issuance of patents, issues of creativity. There is also the All-Russian Organization of Intellectual Property.

Types of intellectual property

Intellectual property includes several types, depending on the object and the copyright holder:

• Copyright,
• related rights,
• patent Law,
• the right to brand uniqueness,
• the right to trade secrets.

Copyright

Copyright regulates the use and creation of works of art, scientific works and literature. It applies only to material objects, that is, it does not include verbal constructions: sayings, assumptions, methods, and the like, and protects only works - unique products of the creator's life in any form (text, audio ...). But this is not only the right of authorship, but also others:

• personal non-property:
  • the right to a name (if you are a celebrity or have a pseudonym. For example, Verka Serduchka);
  • the right to protect reputation;
  • the right to publish;
• property:
  • the right to use the work in any form and in any way;
  • right to copyright.

Related rights

Related rights are created to regulate issues related to, for example, translating texts from foreign languages, making phonograms, covers (rehashing songs), that is, for works that are not entirely copyrighted, but still creative and unique.

Patent law

Patent law protects the rights of the author to an invention, design solution. In other words, industrial property. Recently, this type of intellectual property has begun to act on achievements in the field of breeding (bringing new varieties of plants) and, accordingly, genetic engineering. Such a right is formalized by issuing a patent - a document that indicates the name of the invention and the name of the author, so that no one can steal and copy the achievement.

Rights to brand uniqueness

Brand identity includes emblems, company names, logos, even shop signs in your backyard. Organizational identity rights formally include:

• the right to a trademark;
• the right to a trade name;
• the right to an appellation of origin. This means that the manufacturer indicates the place of manufacture of the product in its name, since its properties are associated with natural conditions of that area or with other territorial features (for example, champagne was historically made in the French province of Champagne, where special grape varieties grow. Hence the name).

It is important for manufacturers of scarves to register the place of origin of the goods: Orenburg downy scarves are made in this city using a special technology and in a peculiar style

Right to trade secrets

Secret technologies are trade secrets. Such secrecy allows the manufacturer to earn extra money on interest in his products (remember the movie "Charlie and the Chocolate Factory", where no one could understand what Willy Wonka's chocolate was made of, because he kept the recipe as a trade secret). Such technology know-how can be bought/sold… or sniffed out for free.

How to get intellectual property rights

A person's right to the result of his labor is recognized by law a priori. But in order to protect the object from use by others, it is better to formalize your authorship and the rights associated with it.

Registration of works (copyright)

If you need to register your work, contact a notary or one of the special law firms. In any case, an identifiable instance must be provided. It is important that it must be exactly material, in digital form you simply will not accept it. That is, if you register authorship for a book, you need to submit a printed text, for a piece of music - notes. It is better to bring also a digitized copy on an information carrier. This will then allow you to prove that you are the creator. There are separate requirements for text works: they must be printed on A4 sheets with a font of at least 12 pt on one side of the page. And also in the work there should be a title page indicating the full name of the author, city of residence, title of the work and year of writing.

When registering, it is necessary to agree on the terms with the copyright holder (for example, with the publishing house, if the book has been published) and sign the contract. The agreement must be in your hands in two copies. It is used as proof of authorship. You can register your work in a special registry with an international number, but this is not mandatory under current legislation.

Registration is a paid procedure, but available. Rates depend on the place of registration. For example, registration of copyright for a song will cost about 500 rubles.

Take the application, receipt of payment of the state duty and the contract to the copyright registration department of the selected institution.

Registration of other forms of intellectual property

If you are registering an object of corporate uniqueness (trademark, etc.), then you must clearly depict it and attach it to the application. You need to apply to Rospatent (Berezhkovskaya embankment., 30, building 1, Moscow, Russia, G-59, GSP-5, 123995), it registers the rights of a person to inventions, production samples and trademarks. All items of brand uniqueness registered by Rospatent are recorded in the Register of Intellectual Property Objects. The database is in the public domain.

Photo gallery: sample documents for registration of intellectual property rights

An application for registration of copyright is written in a standard form, which will be issued upon application. The agreement between the author and the copyright holder is called an author's order agreement. A state fee is charged for the registration of intellectual property rights.

Duration of the exclusive right

Copyright is valid until the moment of transfer or until the end of the life of the author. For another 70 years after his death, the rights belong to his heirs. The situation is different for commercial properties. In case of non-payment of annual state fees for maintaining a patent in action, it may be terminated before the expiration date.

Table: expiration dates and renewals of the exclusive right

Name of the object of exclusive right	Initial validity period	Possibility of renewal
Invention Patent	20 years from the date of application	Not more than 5 years if the invention is medicine, pesticide or agrochemical for which a permit is required.
utility model patent	10 years from the date of application	-
A patent for an industrial design (most often this is a design)	5 years from the date of application	For 5 years at the request of the patent owner (the plus is that there can be many such applications). But no more than 25 years in total.
A work created by one author (no co-authors)	Throughout the life of the author and another 70 years after death	-
Co-authored work	Throughout the life of the author and co-authors and another 70 years after the death of the last co-author	-
Work created anonymously or under a pseudonym	70 years from the date of the first seal	-
A work created by an author who participated in the Great Patriotic War or worked during this period	-	Extendable for 4 additional years
The work of the author, who was repressed and then rehabilitated	70 years since rehabilitation	-
Work published after the death of the author	70 years from the date of the first seal	-

How Intellectual Property Can Be Used

It so happened that now good ideas are worth millions. For example, many film companies pay good money for outlining the plot of the film. If you have a rich imagination, then this is a chance to earn extra money.

If you are the author of intellectual property, then its use will not be a problem for you. The owner can do whatever they want with it. For a simple layman, this will be problematic. To provide him with this opportunity (for a fee or for free - decide for yourself here), you can:

• fully transfer (sell) the rights to intellectual property. This is called alienation of the exclusive right, because after the transfer you will no longer be able to use and dispose of this creation as an author, but the very fact of authorship will be preserved;
• sign a license agreement. Then a third party will be able to use intellectual property strictly to the extent described in the contract. The right of disposal and ownership remains with you. The license is:
  • exceptional. Then you will not be able to enter into other similar contracts;
  • non-exclusive. You can issue an infinite number of licenses and earn more.
• waive rights in favor of another person or state.

The owner of intellectual property may permit others to use it under license

Alienation of the exclusive right

100% sale of intellectual property is subject to a written agreement. You must specify the amount of the reward. In special situations, such an agreement must undergo state registration (you will need to contact the Federal Service for Intellectual Property and inform about the changes made):

• when one of the parties declared the need for registration;
• if the property must be registered;
• if so ordered by the court;
• if you have inherited the property.

Must be registered:

• inventions;
• useful models;
• industrial samples;
• selection achievements;
• trademarks;
• service marks;
• appellation of origin of goods.

The Skype logo belongs to one owner, and the copyright for the program belongs to another

Skype was developed by entrepreneurs Niklas Zennström Janus Friis. The trademark was owned by Skype Limited, which the men founded together. After its sale, ownership passed to Microsoft, which commercially benefits from the use of the logo. But copyright was not alienated. On the brand and authorship different types intellectual property rights.

Waiver of exclusive right

To waive the exclusive right, submit an application to the Federal Service for Intellectual Property (Rospatent). At will, you can waive only part of the rights. For example, allow non-commercial use of their work.

Intellectual Property Valuation

Intellectual property valuation can be widely used in the company's market strategy. With its help, they reduce income tax, increase the value of the enterprise.

The value of an intellectual property object has its own life cycle

Evaluation features:

• the value of the appraisal object changes over time and is determined on a specific date (principle of change);
• the cost depends on external factors that determine the conditions for their use, for example, due to the operation of market infrastructure, international and national legislation, state policy in the field of intellectual property, the possibility and degree of legal protection (the principle of external influence);
• the cost is determined based on the most probable use of the object, as a result of which the calculated value will be maximum (principle of the most efficient use).

In the evaluation procedure, consider the uniqueness of the objects and their current use, the cost of production and implementation, the degree of development, the possibility of legal protection, the receipt of remuneration for use.

How can property be protected and what is the liability for violation

Here is one very famous example: when the Russian-French artist Marc Chagall (he was stubbornly not recognized in his homeland, so he immigrated to France) at the beginning of his career wanted to sell a couple of his paintings, he brought them for evaluation. There they were shamelessly taken away from him. The artist in our imagination, who knew about his intellectual property rights, would have long ago declared injustice, but Marc Chagall could not do anything.

As they say, you need to learn from the mistakes of the past. Today, the strongest evidence of your authorship will be the "presumption of authorship" - the earliest document of the available copies. It will be original. The proof of this presumption can be an agreement with the copyright holder, manuscripts, registration of a work in your name in the international registry.

Video: Protecting Intellectual Property Rights (Part 1)

The best defense is an attack, so it is carried out by sending a claim and demands to the offender:

• about the recognition of the right;
• on the suppression of actions that violate the right or create a threat of its violation;
• for damages;
• on the seizure of a material carrier - claims are sent to its manufacturer, importer, custodian, carrier, seller, other distributor, unscrupulous purchaser;
• on the publication of a court decision on the infringement with an indication of the actual copyright holder - to the violator of the exclusive right.

If it was possible to prove their right and its non-observance, the perpetrator will be held accountable. It can be like this:

• indemnification or payment of compensation for each case of violation of the right. The size is determined by the court:
  • from 10,000 to 5,000,000 rubles;
  • at twice the value of the copy or ownership;
• if the objects are counterfeit or false information is indicated on them - an administrative fine in the amount of 1,500 to 2,000 with confiscation of the counterfeit;
• if the value of copies or ownership rights exceeds 50,000 rubles:
  • a fine in the amount of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months;
  • compulsory work for a period of 180 to 240 hours;
  • imprisonment for up to two years.
• if violations are committed by a group of persons, by prior agreement or on an especially large scale - imprisonment for up to six years with a fine of up to 500 thousand rubles or in the amount of wages or other income for a period of up to three years or without it.

Video: Protecting Intellectual Property Rights (Part 2)

So, you can make good money selling intellectual property rights. But many people don't want to pay to use an idea or object, even if it's worthwhile, and just copy it. In this case, the copyright holder may complain about the violation of copyright or other rights. The only problem with protecting intellectual property is that you must first catch the infringer and prove his guilt. But do not be afraid to defend your rights: if you are really an author, the law is on your side.

Most of us, without knowing it, had to deal with intellectual property issues in our lives. The most common example is...

By Masterweb

09.06.2018 12:00

Most of us, without knowing it, had to deal with intellectual property issues in our lives. The most common example is the installation of a program or game on a computer, during which an additional window appears on the screen, introducing the terms of the license agreement. So, by ticking the empty box, we undertake not to distribute copies of this application and use it according to the rules of the developer. In all cases, when it comes to a license, patent, trademark and other results of intellectual property, social relations are formed that are regulated by a separate legal branch.

Basic concepts

Everything that is produced by man is somehow connected with his intellectual activity. At the same time, not all the fruits of his mental labor can be attributed to the category that is covered by state legal protection.

The brain activity of each of us is constant. The results of the work of the brain can take both ideal and some kind of objective material form, which in the latter case gives every reason to provide them with legal protection. So, the fruits of mental activity, equated to the means of individualization of legal entities, works, services, are called intellectual property.

The concept is defined by the temporary exclusive or personal non-property copyright enshrined at the legislative level. If a specific product of mental activity is assigned to this category, an author's monopoly is established on the methods of its application. Domestic legislation does not exclude the possibility of using intellectual property by third parties with the permission of the author.

Objects of property created by human intelligence

Russian legislation offers an exhaustive list of such results. The objects of intellectual property rights are:

• scientific developments;
• literary works;
• visual arts;
• computer programs for electronic computing devices;
• Database;
• phonograms;
• broadcasting of representatives of a legal entity, broadcasting a radio or television broadcast;
• technical and engineering inventions;
• improvement of existing models, industrial designs;
• new breeding varieties;
• integrated circuits;
• secrets of innovative production;
• trade names and trademarks;
• service symbols;
• names of places of production of goods;
• commercial designations.

The specified results of mental labor and means of individualization are covered by the Civil Code of the Russian Federation in the field of protection of intellectual rights, in particular Art. 1226 of the Civil Code of the Russian Federation. Some provisions imply an exclusive right, which is also a property right. The current Code provides for personal non-property and other rights (inheritance, use, possession, etc.).

Among personal non-property rights, the most common and striking example are the rights of authorship and name. Their significance cannot be neglected - in the absence of these powers, it is impossible to use the exclusive right, which will become a natural obstacle to further creativity and development. In this case, copyright can be transferred, that is, alienated. The original legal owner of intellectual property rights, but after a properly executed legal transfer of rights to works, their owners can be both individuals and legal entities.

What is copyright?

Copyright is considered to be the ability to own and dispose of scientific, literary works or objects of art. It is extremely important that the citizen who created the product has the status of the author. By default, the author of a work is the person whose information is indicated on the original.

Interestingly, copyright can extend to published and unpublished objects of intellectual activity. To protect it or exercise copyright, federal law does not require object registration or other formalities.

The absence of references and official interpretations of fundamental concepts in its provisions can be called features of the copyright of the Russian Federation. The law does not disclose the meaning of such terms as work, creativity, objective form, etc. Therefore, a more detailed and arbitrary interpretation of concepts is not ruled out, which may affect the resolution of disputes over the rights to products of intellectual works in different ways. On the one hand, this contributes to the simplification of the system of protection of intellectual rights, and on the other hand, to its significant complication.

Patent for a product of intellectual labor

The objects of patent law can be called products created in the conditions of scientific and technological progress, artistic design. These include inventions and improved models, industrial designs. These objects, officially classified as objects of intellectual labor, are protected by the laws of the Russian Federation.

To confirm their patent rights, the owner of an innovative subject should register his invention, which can be either a finished product or a step-by-step technological method for its creation. A product in this sense means a technical device, a substance, a strain of microorganisms, a breeding plant variety, an animal breed, etc. At the same time, the invention must be completely new and appropriate for use in the production process.

An industrial design is an art and design solution protected by the state. The most widespread are objects falling under the scope of patent protection, which is regulated by separate legal norms.

In some cases, experts are skeptical about inventions as such. Many experts believe that an innovative approach to the development technical device or industrial model is not rational and efficient enough in terms of modern production. At the same time, the choice of security mechanisms for protecting inventions is very difficult. The way to protect an object of intellectual activity also depends on the duration of the law enforcement norm. Utility models and exemplary industrial inventions often become a flexible tool for solving a number of tactical and strategic issues in the development of industry.

Signs of works of intellectual activity

In order to understand what features should be met by objects of intellectual work recognized as the property of a particular person, it is worth referring to the theory of civil law. Lawyers distinguish the following features:

• intangibility;
• relationship with relations in the property sphere;
• expediency;
• innovative approach;
• providing legal protection.

immateriality

Speaking about the first feature of intellectual property, it is important to understand what it means. The point is that absolutely all works, inventions, developments, other objects of mental labor always exist not in a material, but in an exclusive form. This specific feature distinguishes them from physically tangible, that is, material objects of property rights. Movable or immovable property can be touched, touched with hands. Thus, a book cover or a mobile phone, by their nature, are inventions, but in fact it is just their outer shell.

Relationship with property relations

Commonality with property relations ensures that the fruits of intellectual activity and means intended for the individualization of the subject, by default, imply that their owners have special powers. It is the rights to objects of mental labor that can become the subject of civil law relations, for example, when drawing up a contract of sale, donation, pledge, etc. In this context, the relationship is concluded. This feature creates an opportunity to delimit the objects of the sphere of intellectual property and intangible benefits, which recognize life, health, morality, dignity. None of the intangible benefits can participate in civil law transactions and, therefore, cannot be the object of a transaction.

Expediency

The objective manifestation of the fruits of intellectual activity is their no less significant feature. This means that the results of mental labor are expressed in a specific material thing. So, going back to the example above mobile phone and book cover, it is important to pay attention to the fact that in themselves these objects are more correctly perceived as ways of representing the exclusive content of creative ideas and human thought. Moreover, it is not the things themselves that are subject to state protection, but their uniqueness. So, for example, the claims of an invention are subject to mandatory registration of a patent.

Innovative approach

Novelty as a characteristic feature of an object of intellectual activity partially duplicates the previous feature. Taking an innovative approach to creating an object implies uniqueness. The subject matter to be patented must not have been known to others in the past. At the same time, the principle of novelty for objects of intellectual activity belonging to the category of copyright and patent law has significant differences. This is due to a number of features of the legal regulation of each area.

State protection

Providing legal protection for intellectual property is of great importance and follows from all the previous characteristics. For the subjects of relations in the field of protection of intellectual activity, it is fundamentally important that Russian legislation clearly defines a specific list of objects that may belong to the relevant category. By the way, a wider list of items that could be considered a product of intellectual activity is contained in international conventions. But, despite this, it should be understood that only those positions that are approved by federal laws can be under state legal protection.

Authorities regulating relations in the field of intellectual rights

Russia's policy in the field of realization of rights to products of intellectual activity is based on the need to strengthen competitive national industries, including the provision of additional guarantees for the rational use of budgetary funds invested in research and technology. The basic principles are implemented by determining the interests and priorities of the state in the international economic arena and creating an effective executive apparatus, the primary task of which will be to stimulate enterprises to create and implement the latest inventions in practice.

The main state body regulating relations in the field of intellectual property is the Federal Service for Intellectual Property. The second name of this organization is Rospatent. This executive agency is the legal successor of two state organizations in the field of registration of patents for inventions and means of individualization, as well as the legal protection of the interests of the country in the process of economic and legal circulation of products of research, development and technological enterprises with paramilitary, specialized and other purposes.

The Federal Service for Intellectual Property is located in a government department and is directly subordinate to the Ministry of Economic Development of the Russian Federation. The main functions of this state body are:

• proposal to the Government of the Russian Federation of draft decisions on issues related to the powers of Rospatent;
• presentation of the draft plan and forecast indicators of the work of this structure;
• publication of rules for processing documents for state registration of objects of intellectual property;
• summarizing the practice of applying the norms of the laws of the Russian Federation and preparing proposals for improving the legislative framework in the established sphere of relations.

In the field of state management of intellectual property, Rospatent carries out state registration of inventions and industrial designs, information systems for electronic computers. The most common objects of registration are service marks, goods and other means of individualization. Databases and topologies of microcircuits are also intellectual property. Rospatent is also engaged in the issuance of relevant patents and certificates of registration of products of intellectual activity, their duplicates in accordance with the regulated procedure.

Where information about intellectual property owners is stored

The Intellectual Property Registry was created to control and protect right holders. In fact, this resource is an important tool enshrined at the legislative level. The register of intellectual objects is a complex two-level system: in addition to the base operating exclusively on the territory of Russia, there is the Unified Register of the Customs Union.

Maintaining the Register is within the powers of the above-mentioned Federal Service. The basis for the inclusion of an object of intellectual activity in this base considered to be a statement from the copyright holder. General rules for the registration of products in a single regulated Art. 385 of the Customs Code of the Eurasian Economic Union. You can declare the need to enter information in relation to:

• copyright for a specific product of intellectual activity;
• objects of related rights;
• trademarks;
• names of places of production.

The document is sent to the Federal Intellectual Property Service in any language, but if an application is submitted in a foreign language, a notarized translation into Russian will be required. In addition, you will need to collect a package of additional documents:

• confirming that the applicant has the rights to the presented product;
• duplicating information on registration with Rospatent;
• general power of attorney in case of representing the interests of the copyright holder by a third party.

At the moment, the Intellectual Property Register is undergoing technical modernization in order to simplify the mechanism for entering information.

Types of agreements on the transfer of rights to a product of intellectual labor

In accordance with the provisions of the Civil Code of the Russian Federation, the organization's right to intellectual property may be transferred to third parties. Also, the possibility of expanding the list of powers of the latter is not ruled out. This will require proper consent. An intellectual property agreement may imply both the transfer (assignment) of an absolute right, and the granting of a license to use objects.

When concluding an agreement on the assignment of the opportunity to dispose of the results of mental activity, all rights are transferred to the successor, who acquires the status of the copyright holder with all the ensuing consequences. In comparison with license agreements, the transfer agreement implies a change of the right holder with the subsequent assignment of all exclusive rights. At the same time, the right to use a trademark can be transferred only to a certain proportion of registered goods.

With the transfer of a trademark, the new owner has the opportunity to independently allow or prohibit the use of this intellectual property object by third parties. The federal laws governing trademark assignments do not require the new owner to produce a product of good quality, unlike a license agreement.

Kievyan street, 16 0016 Armenia, Yerevan +374 11 233 255

Intellectual Property (IP) is a form of intangible asset. These are ideas, discoveries, works. At the physical level, IP may not exist, but this does not prevent the asset from making a profit. Therefore, intellectual objects are subject to accounting.

The concept of intellectual property

IP is the result of intellectual activity protected by regulations (Article 1125 of the Civil Code of the Russian Federation). Intellectual property is characterized by these characteristics:

• Intangibility. IP is different from tangible assets. The latter can be transferred to other persons, used in work. One and the same material object in most cases cannot be used by two people at the same time. With regard to IP, simultaneous use by several users located in different places is possible.
• Absoluteness. All rights to the intellectual object belong to the copyright holder.
• Embodiment of IP in material objects. For example, a person acquires a disk with an album of a musical group. The disc will be owned by that person, but the person does not get the rights to the music itself.

Not all tangible assets can be considered intellectual property. IP objects are listed in Article 1225 of the Civil Code of the Russian Federation. If an asset is not included in the list established by law, it cannot be considered IP. That is, anyone can use this asset.

Objects representing IP can be completely different. However, they share a number of common features:

• This is the result of creative or intellectual activity.
• In relation to the subject there is a complex of property and non-property rights.
• Application for a long time.

An important characteristic of intellectual property subject to accounting is the ability to profit from it.

FOR YOUR INFORMATION! The right to an IP object is understood as a whole set of rights. For example, a copyright holder can reproduce a work, sell it, publicly display it, modify it, or rent it. Accordingly, if a person does not have property rights, he cannot carry out these actions.

Basic types of intellectual property

ICs are classified by various experts. For example, A.P. Sergeev, who is a specialist in the field of intellectual property law, suggests dividing assets into two categories:

1. Copyright object. This concept is used not only in business, but also in the cultural sphere. A feature of such an asset is that the ownership of it does not need to be registered. They are formed by virtue of the creation of IP. Copyrights include scientific discoveries, works of art, books, computer programs. There are also objects of related rights - the rights of performers. This is the performance of a work, phonograms, television broadcasting, phonograms.
2. Objects of industrial property. They are used in business activities for the purpose of making profit. They are required to be registered. They are divided into three types:
   • Patents: inventions, developments, product samples.
   • Objects for individualization. Company and commercial names, trademarks, names of geographical places.
   • Original objects: selection successes, know-how.

Different objects of industrial property serve different purposes. For example, individualization tools are needed to attract consumers and ensure competitiveness. Patents are required to improve production to improve product quality and generate profit. Original (non-traditional) objects can serve to optimize production.

IMPORTANT! Most IP objects need to be registered with the Federal IP Service. However, the ownership of some assets is formalized in other bodies. For example, breeding achievements are registered with the Ministry of Agriculture.

Other types of intellectual property

Let us consider in more detail the objects that are included in the industrial group of intellectual property:

1. Invention. Assumes some technical solution that can be attributed to production activities. Distinctive features inventions: applicability to industrial activities, novelty, inventive step, evidence of the validity of the findings of the survey. An example of the invention are strains of microorganisms, a new optimized production algorithm.
2. Useful model. It also represents a technical solution. Its difference is that it is aimed at a specific product. A utility model is characterized by such features as novelty and the possibility of application in production activities.
3. Industrial model. This is an artistic design decision. The sample should give an idea of appearance a product that is produced by an industrial or artisanal method. The sample will be protected by law only if it is original. There are significant features of the considered intangible asset. This is a set of aesthetic and ergonomic properties: shape, color, pattern, texture.
4. Trademark. It is a designation that gives the product individual characteristics. A trademark can be obtained not only for products, but also for services.
5. Trade name. Needed to identify the company. It is a symbol of business reputation. Basically, it's an asset. The trade name does not need to be registered specifically. The manager just needs to reflect it in the Unified State Register of Legal Entities. Once the name is registered, no other firm will be able to use it.
6. Undisclosed information. This is data that has potential commercial value. This value remains until the information is transferred to third parties. An example of NI is the secrets of cooking.
7. Know-how. They are divided into many varieties:
   • Technical data: confidential part of the description of the invention, claims, drawings.
   • Management know-how: distribution of functional responsibilities, methods of organization.
   • Financial know-how: methods of profitable use of financial resources.
   • Commercial knowledge: information about market conditions, the cost of commercial transactions.

Types of intellectual property depending on the legal regime

IP objects are divided into types:

1. The results of intellectual work for which a patent has been received.
2. Tools for individualization of a company, product or service.
3. The results of creative activity, which are subject to copyright.
4. Know-how covered by the right to a trade secret.
5. Intangible objects covered by the right to selection achievements.
6. The results of creative activity, which are covered by the right to the topology of integrated circuits.
7. The results of scientific and technical work, in respect of which the right to use a single technology in the system is valid.

It is important to distinguish between objects of individual property, since each group of objects has its own rules. Some objects do not need to be registered specifically. Other items must be registered with several authorities at once.