Why Russian patent is almost useless Bashny.Net

In a previous article, I promised to tell you about how I got the patent for utility model, as well as its uselessness in the patent infringement case . Now, though long overdue, yet to fulfill its promise. Immediately, I note that I am not a lawyer and patent engineer, so the article may contain inaccurate wording and naive view, but really hope no factual errors.

The basic idea is as follows. The idea is that any patent must have two functions - permissive and prohibitive. First, the patent allows its owner to do something, for example, to manufacture and sell the patented product. Secondly (and this is important), the patent prohibits indefinite number of persons any actions related to the subject of patenting. Ie, having a patent may prohibit a person to another person to manufacture, sell, store, use, etc. product that uses this patent.

In Russia, unfortunately, most importantly - a prohibitive function of the patent has been completely destroyed. Therefore, to protect intellectual property in Russia actually does not make sense.



We must start with the fact that any patent, whether the utility model patent or patent, has a prototype. It is assumed that the inventor has not developed his idea with full ground, and took as a basis for something known, prototype, and the prototype somehow improved. This improvement allowed us to obtain some new and definitely useful feature. Improvement should not be just a supplement if this supplement shall not be qualitatively new useful properties.

For example, we have a mop ... For example, we have a mop. Take the whistle and tape primatyvaem to mop. Get a new object - a mop with a whistle. Washable and can whistle. It'S Great! Can it be patented as a utility model? Probably not. Since functional this thing can be washed like a mop, and can whistle like a whistle. The result was a sum of functions, which were so in the original objects.

And now take a mop and primatyvaem her flashlight. And we get a new feature - the ability to wash in the dark corners. This feature was not alone nor the flashlight, no mop. This new device is already possible to try to patent as a useful model.

What to take the prototype? In the case of utility model may serve as a prototype for another useful model or the invention or any generally known construction, the subject method or method. In practical terms, a prototype search should start from here: go http://www1.fips.ru , the "Information Resources", "open registries" "Register of utility models" (for example). Next, put the "IPC index" and enter this same index. Index pre learn to классификатору. In my case it is A47D9 / 02. As a result of all these actions, we will get a list of useful models of the index. For example, my patent is number 112007. Then read all the patents from the list and choose something suitable as a prototype. Of course, the choice of sources of a prototype are not limited by this list. You can, for example, search and international patents for utility models and inventions.

Selecting a prototype should come up with claims. This is a key component of any patent. That patent formula has legal significance, namely the formula defined boundaries of patent protection. Drawing up the formula - an art, it has a lot of nuances and non-obvious points. In the formula, utility model or invention are set forth all of the essential features of the invention or utility model. In turn, the sign - a sort of a unit of meaning, brick, of which there is a patent formula.

Wikipedia:

Formula invention consists of one or more items. Each item of this formula usually consists of two parts, called the preamble of the characterizing part and separated by different phrase (-ayasya, -eesya) that .... Bounding part contains the name of the claims of the invention and its important features already known from the prior art. A distinctive part comprises features constituting the essence of the invention and which are novel. Each claim is a single sentence. The claims are divided into dependent and independent. Independent claim characterizes the invention the sum of its features, which determines the amount of legal protection is claimed, and is presented in a logical definition of the subject matter. Dependent claim contains clarification or development of the invention as disclosed in the independent claim.
Blockquote> Example of the claims (in this case a utility model patent 112007):

1. A device for rocking bed comprising a supporting structure, the bed, the suspension connecting the support structure with the bed positioned under the support structure with an electromagnet coil connected to the electric current through the interrupter to the control unit, and a metal plate fixed to the bottom of the bed for engagement with the electromagnet, characterized in that the metal plate is displaced relative to the electromagnet in the direction of the rocking bed.

2. A device for rocking bed according to claim 1, characterized in that the metal plate is made of metal with a remanent magnetization.

3. A device for rocking bed according to claim 1, characterized in that the control unit is based on a microcontroller.

4. A device for rocking bed according to claim 1, characterized in that it is further provided with a remote control. Blockquote> Let's take a closer look at that in this formula that. So:

First there is an independent part of the formula.

A device for rocking bed,

- The object of patenting, the object of legal protection. It then lists the restrictive signs.

containing the supporting structure,

- The first sign

bed,

- The second sign

Suspension linking bed with a support structure,

- The third sign

located on the basis of the support structure with an electromagnet coil,

- The fourth sign

connected to the electric current through the circuit breaker to the control unit,

- The fifth sign

and a metal plate fixed to the bottom of the beds with the possibility of interaction with the electromagnet,

- The sixth sign. All the preamble of the claims ended. This is followed by a distinctive part of the beginning "characterized in that ...".

characterized in that the metal plate is offset relative to the electromagnet in the direction of the swing bed. B>

- Another feature. All independent claim ended. Followed dependent items (numbered). They are not so interesting, because their legal value is much less than the value of the independent claim.

Having dealt with the fact, that such claims are going on.

According to para. 3 of Art. 1358 of the Civil Code

invention or utility model recognizes used in a product or method, if the product contains, and is able to use every feature of the invention or utility model, shown in the independent claim contained in the patent claims or utility model, or an indication equivalent and became known as such in the art before the commission in respect of the product or course of action provided for in paragraph 2 of this article. blockquote> In turn, according to para. 3 of Art. 1358 of the Civil Code

using the invention, utility model or industrial design is considered, in particular, into the territory of the Russian Federation, manufacture, use, offer for sale, sale, other introduction into civil circulation or storage for the purpose of the product, in which the invention or utility the model or product that uses an industrial design. blockquote> Thus, it would seem, the Civil Code uniquely identifies the use cases, for example, a utility model. If suddenly there on the market a device comprising a support structure, a bed, suspension, etc. according to the formula of a utility model, and this device, relatively speaking, not mine - then it breaks my exclusive (patent) for utility model rights.

So it should be. So it is in other countries. But, unfortunately, not in Russia.

And in Russia, you can do so. Pay close attention to your hands.

Add a minute we, for example, another coil unit swing and calculate that this change gives any advantage (in fact it is not necessarily so, but let's say that it is so). For example, let's say that it adds smoothness. Leave everything else as is. As a prototype we take the original utility model (PM) 112,007 and received a patent for a utility model has, for example, with the number 122860. After that will safely releasing bed with rocking device using all the features of GR 112007, but having a second coil in the drive unit. And we say that the bed is produced under patent 122860.

It is obvious that the product uses two coils and the PM and PM 112 007 122860. And, apparently, take the GC and applies to this case. But ... (drum roll ....) Note hole in the legislation:

Item 9 of the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of 13.12.2007 N 122 "Review of practice of consideration by courts of arbitration cases involving the use of intellectual property law»:

If there are two utility model patents with the same or equivalent features stated in the independent claim to recognition in the established order invalid patent with a later priority date of the current holder of the patent on its use can not be regarded as an infringement of the patent with an earlier priority date. blockquote> Later, Presidium of the Supreme Arbitration Court of the Russian Federation confirmed its position (it was not a mistake!) Decree № 8091/09 dated 01.12.2009, and extending it to the invention.

So now I have to prove not that the product uses two coils with my patent 112,007, and that the later patent 122860 is invalid. It seems absurd, but it's true. And to prove the invalidity of the patent 122860 is not possible, since it is issued for all formal rules and generally quite a well off.

Unfortunately, the courts in patent disputes is governed by this decree of the Presidium of the Supreme Arbitration Court of the Russian Federation. With the enforcement we are fine.

This totally unhealthy situation is well known patent attorneys and people "in the subject." For example, in Wikipedia it is described and named "cases, legal vandalism" (article "Invention").

The point of this approach is that the patentee is entitled to use the protected solution, even if it will be used by third party protected by the decision, without its consent, which completely contradicts the very essence of the exclusive right as the right to prohibit and the last sentence of paragraph 3 of Article 1358 of the Civil Code RF clearly pertinent to cases of such action using the invention.
Blockquote> So, to patent something serious in Russia makes no sense. Anyone can get a patent for a similar utility model, slightly modifying it, and use it without any problems. Patents in Russia as a result of cost nothing - much cheaper to crank out this simple trick, for example, than to buy a license for the use of an existing patent. Invest some money in the development of new devices, technologies, methods in Russia, too, is meaningless - investments that will have to be recouped from the sale of licenses and go nowhere.

Patent in terms of Russia only in one case - if you are on it to produce a product. In this case, at least, no one will prevent you to do so. And you're nobody prohibit produce a similar product can not - your opponent will be his patent (later, and in a particularly cynical case, the prototype will be used by your utility model), so that you legitimately them sent to paragraph 9 of the Information letter of the Presidium Supreme Arbitration Court of the Russian Federation of 13.12.2007 N 122.

Source: geektimes.ru/post/243947/