February 18, 2012 at 09:04What can be done with a patent. Likbez. part 4
So, we continue the already-traditional educational program on patent law. In this article I will talk about how the inventor can manage his patent, about the monopoly and its nuances, as well as about licensing and alienation.
The last time I was bombarded for quotes from the Civil Code, so this time everything will be in my own words, as before, with links to articles. Yes, the conversation, as usual, is about the Russian Federation, but most of the voiced in the article works everywhere with certain reservations.
The previous parts can be read here: 1 , 2 , 3
So, from the first part we remember that the patent system is a system that gives the inventor a time-limited, state-protected monopoly on the disposal of his idea for its publication.So how can you dispose of the idea?
Well, for starters, we can implement it and use the product or technology exclusively for profit, but there are two such things as the right of prior use ( 1361 CC ) and the right of after use ( 1400 CC ).
Prior Use Right is the right to continue to use an invention similar to the patented one, if this use began before the priority date. That is, if Vasya made an electro-shovel for himself, and you patented it, you will not be able to forbid Vasya to use it as he pleases.
In one of the previous articles, I wrote that the patent must be maintained in force by paying fees. So, if a patent has ceased to be valid for non-payment of a fee, then it can be restored within three years. But if, for example, Petya invented an electro-shovel for himself after the patent expired, but until you remembered about paying the fee and decided to restore the patent, then he has the right to use it afterwards . And they with Vasya, waving fun with shovels, go into the sunset along a sinusoid.
By the way, in this place it will also be useful to recall that the use of the invention for personal or family needs, not related to making a profit, is not a violation of the exclusive right. ( 1359.4 GK) That is, Sidor, who made the same electro-shovel during the validity period of the patent, will not be able to dig other people's gardens for her loot, unlike Vasya and Petya, but his own is quite.
Besides the fact that you can realize your monopoly, you can transfer it to another person. You can transfer it to the ends - this is called alienation , or you can transfer it to one or several entities for a certain period with certain conditions - this is called licensing . Accordingly, in the first case, you conclude an agreement on the alienation of exclusively rights ( 1365 Civil Code ), and in the second - a license agreement ( 1367 Civil Code ). Attention: these agreements are subject to registration with FIPS ( 1369 Civil Code ). Without registration, such an agreement is void.
With alienation, everything is clear: you retain authorship, but transfer the exclusive rights in full to another person. That is, he becomes the patent holder and can do anything with your patent: he can give out licenses, or resell, for example.
With licensing, things are a little more complicated: for starters, a license can be exclusive and non-exclusive. An exclusive license implies that no other licenses can operate simultaneously. Well, a non-exclusive license , as you might guess, suggests the opposite.
There is also such a thing as an open license ( 1368 CC) The bottom line is that you are submitting an application to FIPS, to which you are enclosing a licensing agreement, which you undertake to conclude with anyone who expresses a desire to conclude it on the terms stated in this agreement. Such a kind of public offer. By the way, giving such an obligation, you get a 50% discount on the payment of the fee for maintaining the patent in force.
Well, here, of course, the question arises: what can be the terms of a license agreement? And by any. This is called “freedom of contract” ( 421 Civil Code ). The main thing is that the licensee (to whom you give the license) and the licensor (you) are indicated there. And do not forget to register the contract in FIPS.
What else can I add? I’ll add that if you’re an altruist inventor and just want to fix your authorship, having received, if someone is interested in a patent, some money, then there is especially for you article 1366 of the Civil Code on a public offer to conclude an alienation agreement with any citizen of the Russian Federation, expressing a desire to conclude such an agreement and, in fact, on its terms. All fees will have to be paid to him, well, or to you, if after 2 years (not before) you will change your mind and decide to keep the patent.
For me, perhaps, that's all.
[UPD] All parts: 1 , 2 , 3 , 4 , 5 .
The last time I was bombarded for quotes from the Civil Code, so this time everything will be in my own words, as before, with links to articles. Yes, the conversation, as usual, is about the Russian Federation, but most of the voiced in the article works everywhere with certain reservations.
The previous parts can be read here: 1 , 2 , 3
So, from the first part we remember that the patent system is a system that gives the inventor a time-limited, state-protected monopoly on the disposal of his idea for its publication.So how can you dispose of the idea?
Well, for starters, we can implement it and use the product or technology exclusively for profit, but there are two such things as the right of prior use ( 1361 CC ) and the right of after use ( 1400 CC ).
Prior Use Right is the right to continue to use an invention similar to the patented one, if this use began before the priority date. That is, if Vasya made an electro-shovel for himself, and you patented it, you will not be able to forbid Vasya to use it as he pleases.
In one of the previous articles, I wrote that the patent must be maintained in force by paying fees. So, if a patent has ceased to be valid for non-payment of a fee, then it can be restored within three years. But if, for example, Petya invented an electro-shovel for himself after the patent expired, but until you remembered about paying the fee and decided to restore the patent, then he has the right to use it afterwards . And they with Vasya, waving fun with shovels, go into the sunset along a sinusoid.
By the way, in this place it will also be useful to recall that the use of the invention for personal or family needs, not related to making a profit, is not a violation of the exclusive right. ( 1359.4 GK) That is, Sidor, who made the same electro-shovel during the validity period of the patent, will not be able to dig other people's gardens for her loot, unlike Vasya and Petya, but his own is quite.
Besides the fact that you can realize your monopoly, you can transfer it to another person. You can transfer it to the ends - this is called alienation , or you can transfer it to one or several entities for a certain period with certain conditions - this is called licensing . Accordingly, in the first case, you conclude an agreement on the alienation of exclusively rights ( 1365 Civil Code ), and in the second - a license agreement ( 1367 Civil Code ). Attention: these agreements are subject to registration with FIPS ( 1369 Civil Code ). Without registration, such an agreement is void.
With alienation, everything is clear: you retain authorship, but transfer the exclusive rights in full to another person. That is, he becomes the patent holder and can do anything with your patent: he can give out licenses, or resell, for example.
With licensing, things are a little more complicated: for starters, a license can be exclusive and non-exclusive. An exclusive license implies that no other licenses can operate simultaneously. Well, a non-exclusive license , as you might guess, suggests the opposite.
There is also such a thing as an open license ( 1368 CC) The bottom line is that you are submitting an application to FIPS, to which you are enclosing a licensing agreement, which you undertake to conclude with anyone who expresses a desire to conclude it on the terms stated in this agreement. Such a kind of public offer. By the way, giving such an obligation, you get a 50% discount on the payment of the fee for maintaining the patent in force.
Well, here, of course, the question arises: what can be the terms of a license agreement? And by any. This is called “freedom of contract” ( 421 Civil Code ). The main thing is that the licensee (to whom you give the license) and the licensor (you) are indicated there. And do not forget to register the contract in FIPS.
What else can I add? I’ll add that if you’re an altruist inventor and just want to fix your authorship, having received, if someone is interested in a patent, some money, then there is especially for you article 1366 of the Civil Code on a public offer to conclude an alienation agreement with any citizen of the Russian Federation, expressing a desire to conclude such an agreement and, in fact, on its terms. All fees will have to be paid to him, well, or to you, if after 2 years (not before) you will change your mind and decide to keep the patent.
For me, perhaps, that's all.
[UPD] All parts: 1 , 2 , 3 , 4 , 5 .