The concept and conditions of patentability of a utility model
A utility model is a technical solution related to a device, which is understood as a set of elements located in space and interconnected with each other.
A utility model is granted legal protection if it is new and industrially applicable.
When patenting utility model as well as the invention is to provide benefits for the novelty - 6 months from the date when the information on the essence of the utility model became available to the public.
Legal protection is not provided as a useful model:
1) decisions relating only to the appearance of products and aimed at satisfying aesthetic needs;
2) topologies of integrated microcircuits.
The concept and conditions of patentability of an industrial design
As an industrial design, an artistic design solution of an industrial or handicraft product that protects its appearance is protected.
The condition of legal protection of an industrial design is novelty and originality, determined by essential characteristics. Signs defining the aesthetic and (or) ergonomic features of the appearance of the product, in particular shape, configuration, ornament and color combination, are significant characteristics of the industrial design.
An industrial design is new if the totality of its essential characteristics is unknown from information that has become publicly available in the world prior to the priority date of the industrial design.
An industrial design is original if its essential features are due to the creative nature of the product's features.
With respect to an industrial design, a novelty benefit applies if information about it has become publicly available, subject to filing a patent application within 6 months from the date of disclosure.
Legal protection is not granted as an industrial design:
1) solutions, caused solely by the technical function of the product;
2) objects of architecture (except for small architectural forms), industrial, hydraulic engineering and other stationary structures;
3) objects of unstable form from liquid, gaseous, loose or similar substances.
The result of intellectual activity can be simultaneously protected by author's temper (works of arts and crafts) and patent law (industrial design).
The subject of patent law is originally the author of an invention, utility model or industrial design, the creative work of which created the corresponding result of intellectual activity. In this case, the US Civil Code established the presumption of authorship.
In the case of creating an object of patent law, the joint creative work of several persons is co-authored. The right to obtain a patent for an invention, utility model or industrial design is exercised by co-authors jointly, and the protection of rights can be exercised independently.
The exclusive right to use the invention, utility model or industrial design belongs to patent holders who may dispose of this right in the manner of universal succession or under an agreement on the alienation of an exclusive right, a license and an employment contract. The contract must be concluded in writing.
Employers of authors of service inventions, utility models and industrial designs acquire the exclusive right to the relevant object and the right to obtain a patent, unless otherwise stipulated by the contract with the employee and the US Civil Code.
The Government of the Russian Federation has the right, in the interests of defense and security, to authorize the use of an invention, utility model or industrial design without the consent of the patent holder, with a notification thereof as soon as possible and with payment of a commensurate compensation (Article 1360 of the Civil Code of the Russian Federation).
Other subjects may acquire the rights to inventions, utility models and industrial designs in cases and on grounds established by law.An important role in the organization of a patent case in the Russian Federation is played by the Federal Service for Intellectual Property, Patents and Trademarks (Rospatent), a federal executive body that:
• organizes the reception of applications for the granting of patents, their registration, expertise;
• issues US patents for inventions, utility models and industrial designs;
• registers agreements on the granting of rights to industrial property objects;
• carries out attestation and registration of patent attorneys of the Russian Federation;
• publishes information on objects of intellectual property.
In the Russian Federation, as in many other countries, there is an institution of patent attorneys - persons assisting in obtaining a patent and protecting intellectual property.
As a patent attorney, a US citizen who,
• has a permanent residence in the US, higher education and no less than 4 years of practical experience in the field of industrial property protection or professional legal representation;
• He has knowledge of the legislative and other normative acts of the United States, international treaties and agreements necessary to carry out activities to protect the rights to industrial property, and the relevant skills of their practical application, confirmed by the results of the qualification exam. The powers of the patent attorney are certified by a power of attorney.
Chamber of Patent Disputes - Dispute resolution body formed under the federal executive authority on intellectual property. It deals with applications and objections in order to secure the rights and interests of applicants and holders of security documents protected by law for intellectual property objects, as well as legitimate interests of other individuals and legal entities in this field.
Legal protection and obtaining a patent are governed by the US Civil Code and the Patent Law of the Russian Federation.
As noted above, a patent for an invention, utility model or industrial design is a state security document certifying the priority of an invention (utility model or industrial design), authorship and exclusive right to the relevant object.
Legal protection on the basis of a patent for an invention and utility model is granted in the amount determined by the patent formula or utility model contained in the patent. A description and drawings can be used to understand the formula. For an industrial model, the protection of rights is granted on the basis of a patent in the amount determined by the totality of its essential characteristics, reflected on the product images and listed in the list (Article 1377 of the Civil Code of the Russian Federation).
A patent may be invalidated in the following cases:
1) inconsistencies of the invention, utility model or industrial design with the conditions of patentability established by the Civil Code of the Russian Federation;
2) the presence in the claim of the invention or utility model or in the list of essential features of the industrial design contained in the decision to grant a patent, the features that were absent on the filing date of the application in the description of the invention or utility model and in the claim of the invention or utility model or on Product images;
3) granting a patent in the presence of several applications for identical inventions, utility models or industrial designs having the same priority date, violating the conditions provided for in Art. 1383 of the Civil Code of the Russian Federation;4) the grant of a patent with the indication in it, as an author or patent holder, of a person who is not such, or without specifying in the patent as the author or patent owner of a person who is such.
The issuance of a patent may be challenged by any person by filing an objection to the Chamber for Patent Disputes or through the courts (Article 1398 of the Civil Code of the Russian Federation).
A patent that is invalidated in whole or in part is canceled from the date of filing of the patent application.
If a patent is declared invalid, a new patent is issued in part.
The protection of an exclusive right certified by a patent can be carried out only after the state registration of an invention, utility model or industrial design and the grant of a patent.
The validity term of the exclusive right to an invention, utility model, industrial design and the patent certifying this right is calculated from the date of filing the initial application for the grant of a patent to the federal executive agency for intellectual property and is: 20 years - for inventions; 10 years for useful models; 15 years - for industrial designs (item 1363 ГК the Russian Federation).
Obtaining a patent consists of the following stages:
1) filing an application for a patent;
2) examination of an application for an invention;
3) the decision to grant a patent or to refuse its issuance;
4) registration of an invention, utility model, industrial design and grant of a patent.
1st stage - an application for the issuance} of a patent for an invention, utility model or industrial design shall be submitted to the federal executive agency on intellectual property by a person entitled to receive a patent (applicant). The application is accompanied by a document confirming the payment of the patent fee.
The application for an invention must refer to a core invention or group of inventions related to each other so that they form a single inventive concept and contain:
• application for the grant of a patent specifying the author of the invention and the person in whose name the patent is claimed, as well as the place of residence or location of each of them;
• A description of the invention that discloses it with a completeness sufficient for implementation;
• The formula of the invention, expressing its essence and completely based on its description;
• drawings and other materials, if they are necessary to understand the essence of the invention;
The utility model application must refer to one utility model or group of utility models that are linked together so that they form a single creative idea, and must contain the same requisites as the application for the invention.
The application for an industrial design should refer to one industrial design or group of industrial designs linked together so that they form a single creative idea (the requirement of unity of the industrial design), and contain:
• an application for the grant of a patent indicating the author of the industrial design and the person in whose name the patent is claimed, as well as the place of residence or location of each of them;
• a set of product images giving a complete detailed view of the appearance of the product;
• drawing of the general view of the product, ergonomic scheme, confection map, if they are necessary for disclosure of the essence of the industrial design;
• Description of the industrial design;
• list of essential features of the industrial design.
Priority of the invention, utility model or industrial design is established by the date of filing an application for a patent with the federal executive authority on intellectual property.
Stage 2 - examination of the application for the grant of a patent, temporary legal protection of the invention, utility model or industrial design.
On the application for an invention received by Rospatent, a formal examination is carried out, during which the availability of documents stipulated by the US Civil Code is checked and their compliance with the established requirements.
Information on applications for inventions are subject to mandatory publication. From the date of publication of information about the application to the date of publication of information on the grant of the patent of the invention, temporary legal protection is provided within the scope of the published claim.
Upon completion of a formal examination of an application for an invention with a positive result, an examination of this application on the merits is carried out, which includes:
• Information search with respect to the claimed invention for determining the state of the art, in comparison with which the novelty and inventive step of the invention will be assessed;
• verification of compliance of the claimed invention with the patentability conditions stipulated by the US Civil Code.
Examination of an application for a utility model includes:
• checking the availability of necessary documents;
• checking the compliance of documents with the established requirements;
• establishing the possibility of legal protection of the claimed solution as a useful model.
The applicant and third parties have the right to apply for an information search regarding the declared utility model for determining the level of technology, in comparison with which the patentability of a useful model can be assessed.
In the event that when the application for a utility model is considered in Rospatent, the information contained in it is classified as a state secret, the application documents are classified.
On the request for an industrial design, a formal examination is also carried out and, if the result is positive, an examination of the merits, which includes checking the compliance of the claimed industrial design with the conditions of patentability established by the US Civil Code (article 1391 of the Civil Code of the Russian Federation).
Stage 3 - the decision to grant a patent or to refuse its extradition is made by Rospatent. If a patent is requested in the name of more than one person, they are issued one patent.
The decision to refuse to issue a patent or to recognize an application withdrawn may be challenged by the applicant by filing an objection to the Chamber of Patent Disputes.
4th stage - registration of an invention, utility model, industrial design and grant of a patent is carried out by Rospatent. The invention, utility model and industrial design on the basis of the decision to grant a patent are entered in the relevant State Register. Further, Rospatent publishes in the official bulletin information on the grant of a patent, including the name of the author, the name and formula of the invention or utility model, or a list of essential features of the industrial design and its image.
State registration and issuance of a patent is subject to the payment of a corresponding patent fee.Patenting of inventions or utility models created in the United States abroad may be made (filed an application) after 6 months from the date of filing of the relevant application with Rospatent, if within the specified period the applicant is not notified that the application contains information , which constitute a state secret.
Protection of the rights of authors and patent holders is governed by the US Civil Code (article 1406-1407).
Disputes related to the protection of patent rights are considered by the court. This includes disputes:
1) the authorship of the invention, utility model, industrial design;
2) on the establishment of the patent holder;
3) violation of the exclusive right to an invention, utility model or industrial design;4) on the conclusion, on the execution and termination of agreements on the transfer of exclusive rights (alienation of the patent) and license agreements for the use of the invention, utility model, industrial design;
5) about the right of prior use;
6) about the right of after-use;
7) on the amount, term and procedure for payment of remuneration to the author of the invention, utility model or industrial design;
8) on the amount, timing and procedure for payment of compensation provided for by the US Civil Code.
The protection of patent rights in an administrative manner through the Chamber of Patent Disputes can be applied in the following cases:
• filing objections to the refusal to grant a patent;
• challenging the grant of a patent in the presence of grounds for recognizing the patent as invalid.
According to the US Civil Code (Article 1252), the patent holder has the right to demand publication in the official bulletin of Rospatent of a court decision on the misuse of an invention, utility model, industrial design or other violation of his rights.Unauthorized use of the invention, utility model or industrial design, disclosure without the consent of the author or applicant of the essence of the RID before the official publication of information about them, attribution or coercion to co-authorship, if these actions caused major damage, entail the application of criminal liability in accordance with Art. . 147 of the US Criminal Code, and in the absence of proven major damage - administrative responsibility under Art. 7.12, part 2 of the US Code of Administrative Offenses.
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