Actual Problems of a patent law in the interests of development of the civilized market of Intellectual Рroperty

(Report theses at the international scientific workshop in Max Planck Institute for Intellectual Property and Competition Law, Berlin, on October, 06-08th 2011г.)

1. Economy and the law. In the conditions of globalization in the world market, along with the goods, works and services, «the fourth basket» is made by the rights to results of intellectual activity – intellectual property. Its sale in the world trade within the limits of the World Trade Organization makes to 10 % of a total internal product for some countries entering into the WTO[1].

The structure of the market in the conditions of transition to new sixth technological way has a steady tendency to change to 2015 in favor of growth of a share of the market of intellectual property.

It is defined by the objective preconditions connected with:

 mankind transition in to the higher stage of formation and noosphere development (on Vernadsky) where one of the basic criteria of value of a created intellectual product in all its measurements (from art to science and technologies) is the intellectual property;

growing globalization and construction of an open information society,

and also with conditionality of the further innovative development by presence of the civilized market of intellectual property (necessity of the civilized market of intellectual property is recognized for a long time in the USA, Japan, Germany, then in the mid-nineties in China, in 2010г. – in the Russian Federation, in 2011г. – in the European Union)[2]. 

First of all, the intellectual property in scientific and technical sphere plays the major role as the mechanism of creation of additional cost (the intellectual property share makes to 10-15 % from the price of realized production), as means of capitalization of actives of the enterprises and the organizations (through non-material actives) and as an investment resource (where on the security of intellectual property give credits, loans and bank guarantees). In Russia these functions are realized while only in separate projects.

Formation and development of economic relations assumes and causes the further development of legal regulation of this sphere, as in the decision of actual problems in enough perfect areas of a right protection and intellectual property protection, and liquidation of the big blanks and holes in the field of its use.

2. Crisis of patent system. For its overcoming it is important to understand the reasons,

Both objective, and subjective property. From them it is possible to carry to the cores:

First of all, globalization has aggravated conflicts between the interests of public and private beginnings, abusings of the legal owner as manufacturer and the offender as consumer;

developed and developing countries;

national and international patent bodies;

economic requirements and legal possibilities (backlog of legal regulation in the field of a patent right from other fields of intellectual property right).

Secondly, the big terms from the demand to the patent that predetermines high latency offenses during the period before the demand publication (18 months) with threat of loss of a priority, and also impossibility of operative commercial use of the rights to the invention in difference, for example, from a know-how.

Thirdly, absence of professional shots of maintenance of all life cycle of the decisions protected by patents (patent scienctist and patent attorneys are experts in the field of protection (before patent reception) and the defence (expertise), and also state structures of effective patent protection at infringement of the rights.

3. Objects of a patent right. Demands more accurate classification criteria differences inventions as object of a patent right from objects, adjacent with them, at their protection, use and defence:

- the computer programs (they aren't inventions, but they are an algorithm putting in the computer program, it can be protected as a know-how);

- plant patent (on the one hand, the invention is the technical decision in any field, concerning a product (in particular, culture of cages of plants or animals), but on the other hand, it isn't given a right to protection as the invention to grades of plants, breeds of animals);

 - discoveries (they aren't inventions, but institutes of patent right are quite often used for their protection: examination, registration, etc.);

 - know-how (know-how) are used for protection of the same patentable technical decisions if the decision of patenting, with possibility of the subsequent patenting isn't accepted;

- a database (the possibility to include of patentable decisions, including containing in the scientific and technical, design documentation in electronic form that creates possibility of duplication legal protection of the same decisions);

- uniform technology (assumes sharing of objects of a patent law with other results of intellectual activity);

- defense from unfair competition (assumes as protection at infringement of the rights, and at abusing the rights, including failure of the patent. There isn’t this institute in the Russian Federation (for last five years for infringements of patent rights is condemned only 8 persons; from 250 thousand existing patents in commercial use - less than 2 %).[3]

4. The rights to objects of a patent law demand unification as at level of the international regulations, and as at national level taking into account experience, as positive, well as negative in this field.

Fourth part of the Civil Code of the Russian Federation was adopted.
This step allowed a little to unify the law, but in some cases created collisions with the international law[4]:

- the intellectual property is equal to results of intellectual activity, instead of to the rights to them;

- the closed list of objects of intellectual property except for discoveries, protection against an unfair competition (in international law this list is open) is established;

- the opened list of the rights to objects of intellectual property, including the personal (non-property) rights, the exclusive (property) rights, other rights and different rights (in the international law this list is close) is established.

5. The exclusive (property) rights demand legal specification for their effective use:

- the conflict of presumptions and principles of the proprietary interest (everything that isn't forbidden is it authorized) and intellectual property rights (absence of an interdiction doesn't mean consent presence);

- the order as definition of limits of possible using, including the right to resolve and the right to forbid;

- use unforbidden means (there is no list of legislative interdictions, but there is an open list of permissions);

- distribution of the rights at the disposal and use in case of the state participation.

6. Legal collisions. The basic means of the permission of legal collisions are:

1) an establishment of collision norms – the right of application;

2) implementation of  the international norms to the national legislation;

3) unification of norms of the right (change of the national legislation or norms of international law);

4) interpretation of norms of the right;

5) judicial precedents;

6) standardization.

7. Personnel. The requirement for professionals – mediators is defined by quantity («a rule of 10»: from calculation 1 mediator on 10 researchers) and on quality (lawyers, economists and managers)[5]. It is impossible to realize this most long-term priority investment project without science and state participation.

8. Value of a workshop.

- historical value (this is the first participation of the Russian Federation before the coming into the WTO);

- scientific (the mechanism of association of potentials of Institute of M.Planck and RSRIIP on the basis of specific research projects is created);

- economic (the mechanism of interaction MPG and corporations RSRIIP is created).

Reference:

RSRIIP is the only Russian scientific non-profit organization in the sphere of intellectual property. In 2010 RSRIIP became an awardee in the category of "100 best research institutions and organizations of Russia" and was awarded with a gold medal. Director of this institute was awarded with a medal «Scientist of the year».

RSRIIP is an expert organization of the European Union within the "Tempus" project on creating centers of intellectual property in the universities.

RSRIIP is accredited as an independent expert empowered to perform expert examinations on corruption in the Ministry of Justice of the Russian Federation.

RSRIIP provides work of the "Intellectual Property" National Technical Committee (TK-481).

RSRIIP is an expert organization of the Parliament of the Russian Federation to prepare for the annual state report «About a state of a right protection and defense of intellectual property in the Russian Federation» (since 2007).

RSRIIP is a basic expert organization in the CIS to prepare for the annual state report «About a state of intellectual property in the CIS» (since 2011).

RSRIIP is the legal owner of the unique technology UMKD/MKD on which is issued and sold intellectual property for the sum about 2 billion roubles only in the last two years.

RSRIIP is an incorporator of intellectual property (the corporation RSRIIP).

 


[1]  Лопатин В.Н. Инновационная имитация или инновационное развитие (как и почему Россия теряла конкурентные преимущества в XXI в.?)//  Федеральный научный журнал «Право  интеллектуальной      собственности», 2011, №2, С. 11

[2]  Третий международный форум «Инновационное развитие через рынок интеллектуальной собственности».  Сборник материалов. М., Издание Международного университета в Москве, 2011, С. 35

[3] О состоянии правовой охраны и защиты интеллектуальной собственности в Российской Федерации в 2010 году.  Аналитический доклад / под редакцией доктора юридических наук Лопатина В.Н., М., Издание Совета Федерации, 2011, С. 283-284, 310.

[4] Гражданский кодекс Российской Федерации часть четвертая от 18 декабря 2006 г. №230-ФЗ  // ''Собрание законодательства РФ", 25.12.2006, N 52)

 [5] О состоянии правовой охраны и защиты интеллектуальной собственности в Российской Федерации в 2010 году.  Аналитический доклад / под редакцией доктора юридических наук Лопатина В.Н., М., Издание Совета Федерации, 2011, С. 27

2012 Actual Problems of a patent law in the interests of development of the civilized market of Intellectual Рroperty - Republican Scientific Research Institute of Intellectual Property (RSRIIP). © RSRIP
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