Violation of inventive and patent rights - Commentary...

Infringement of inventive and patent rights

1. The unlawful use of an invention, utility model or industrial design, the disclosure without the consent of the author or applicant of the essence of the invention, utility model or industrial design before the official publication of information about them, attribution or coercion, if these acts caused major damage,

shall be punished with a fine of up to two hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for up to four hundred and eighty hours, or by forced labor for up to two years, or by deprivation freedom for the same period (as amended by Federal Law No. 420-FZ of December 7, 2011).

2. The same acts committed by a group of persons by prior conspiracy or by an organized group , -

is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one to two years, or by forced labor for a period of up to five years, or by arrest for up to six months, or by imprisonment for up to five years (as amended by Federal Law No. 162-FZ of 08.12.2003, No. 26-FZ of 07.03.2011, No. 420-FZ of 07.12.2011) .

1. As noted above, Part 1 of Art. 44 of the Constitution guarantees everyone the freedom of scientific, technical and other forms of creativity, the results of which are intellectual property protected by law. As with copyright and related rights, criminal responsibility has been established for the most serious encroachments on inventive and patent rights.

The subject of the crime is an invention, utility model or industrial design.

Victims of a crime is the author or applicant of the essence of the invention, utility model or industrial design before the official publication of information about them.

The author applies to a commented article recognizes an individual whose creative work created an invention, utility model, industrial design. If several citizens participated in the creation of the facility, they are all considered authors. The order of use of the author's rights is determined by the agreement between them. The right of authorship, i.e. the right to be recognized as the author of an invention, utility model or industrial design, is inalienable and indelible, including when transferring to another person or transferring to him the exclusive right to an invention, utility model or industrial design and upon granting to another person the right to use it.

The applicant of the essence of the invention, useful model, industrial design, specified in the article under review, in addition to the author, may be an employer who, in accordance with federal law, has the right to receive a patent for an invention, utility model or industrial design created by an employee (author) in communication with the performance of his or her job duties or a specific task of the employer (service invention, service utility model, service industrial design), if the contract between him and the employee (the author) does not provide otherwise.

2. The objective side of a crime is expressed in the performance of alternative actions specified in the law.

Illegal use of an invention, utility model or industrial design may consist in particular in the use of said objects without the consent of the patent owner (except where the law allows such use without the consent of the patent owner) expressed in an author's or license contract registered in an established order, and also in the presence of such an agreement, but not in accordance with its terms or for purposes that are not determined by federal laws or other regulatory enactments.

The official publication of information about the objects specified in this article is the promulgation of this information in accordance with the procedure established by federal law. The federal executive body on intellectual property publishes in its official bulletin information about the grant of a patent, including the names of the author (authors), unless the latter (the latter) refused to be mentioned as such (such), and the patent owner, the name and formula of the invention or utility model or a list of essential features of the industrial design and its image. The full body of published information is determined by the federal executive body for intellectual property.

Disclosure of the essence of the invention, utility model, industrial design involves the disclosure of information about these objects of intellectual property publicity in any way (for example, by publishing the main constructive provisions of the invention in the media, transferring the utility model formula by telephone to another person).

Assignment of authorship as a method of infringing inventive and patent rights in relation to the article under review requires the author to declare himself the author of someone else's invention, utility model or industrial design, obtaining a patent by a person who has not made any personal creative contribution to the creation of the said objects of intellectual property, which provided the author with only technical, organizational or material assistance, or only contributed to the registration of rights to them and their use. Violation of inventive or patent rights by coercion to co-authorship, as provided for in the article under review, can consist in influencing in any way (including through violence, threats of unfavorable consequences for the injured) in order to obtain his consent to include other persons personal creative contribution to the creation of intellectual property objects specified in this article) as co-authors of ready-made or developed inventions, useful models or industrial designs ts, i.e. conclude a contract that allows these persons to obtain copyrights.

In cases where coercion to co-authorship is accompanied by the use of violence involving acts against the life, health or freedom of the victim, the responsibility for which is provided for in the relevant articles of the Special Part of the Criminal Code, the offense should be qualified according to the set of crimes provided for by Part 1 of the commented articles, and, depending on the circumstances of the case and the consequences that have occurred - according to the relevant articles of the Criminal Code.

The nature of the crime is material. The crime is over since the onset of socially dangerous consequences in the form of major damage.

The notion of major damage is of an evaluation nature. If the damage is recognized as large, it is necessary to take into account the actual size of the damage caused, the significance of this damage to the victim.

3. In the qualified composition , the method of committing a crime - by a group of persons by prior agreement or by an organized group (part 2 of the article to be commented) is provided as a mandatory feature.

4. The subjective side of the crime is characterized by guilt in the form of direct intent.

5. The subject of the crime is a sane individual who has reached the age of 16.

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