Why is a patent almost useless in Russia

    In a previous article, I promised to talk about how I received a patent for a utility model, as well as its uselessness in case of patent infringement. Now, albeit with a great delay, I will nevertheless fulfill my promise. I’ll note right away that I’m neither a lawyer nor a patent scientist, therefore the article may contain inaccurate wording and naive ideas, but I really hope not actual errors.

    The main idea is as follows. In theory, any patent should have two functions - permissive and prohibitive. Firstly, a patent allows its holder to do something, for example, to produce and sell a patented product. And secondly (and this is important), the patent prohibits to an indefinite circle of persons any actions related to the subject of patenting. That is, having a patent, a person can prohibit another person from producing, selling, storing, using, etc. The product in which this patent is used.

    In Russia, unfortunately, the main thing is that the prohibitive function of a patent has been completely destroyed. Therefore, it does not make sense to protect intellectual property in Russia.

    To begin with, any patent, whether a patent for a utility model or a patent for an invention, has a prototype. It is assumed that the inventor did not develop his idea from scratch, but took as a basis something famous, a prototype, and this prototype somehow improved. And this improvement allowed to get some new and necessarily useful property. Improvement should not be just an addition, if this addition does not bring qualitatively new useful properties.

    For example, we have a mop ...
    For example, we have a mop. We take a whistle and tape the tape to a mop. The result is a new object - a mop with a whistle. You can wash, and you can whistle. Wow! Can this be patented as a utility model? Probably not. Since functionally this thing can wash, like a mop, and can whistle, like a whistle. The result was a sum of functions that the original objects already had.

    And now we take a mop and we wind a flashlight to it. And we get a new function - the ability to wash in dark corners. This function was not separate for the flashlight or the mop. Such a new device can already be patented as a utility model.

    What to take as a prototype? In the case of a utility model, another utility model, or invention, or any known construction, object, method, or method, may act as a prototype. In practical terms, the search for a prototype should begin from here: go to http://www1.fips.ru , then “Information Resources”, “Open Registers”, “Register of Utility Models” (for example). Next, we put the parameter “IPC Index” and enter this same index. The index is previously recognized by the classifier. In my case it will be A47D9 / 02. As a result of all these actions, we get a list of useful models for this index. For example, my patent is numbered 112007. Next, we read all the patents from the list and choose something suitable as a prototype. Of course, the sources for choosing a prototype are not limited to this list. You can, for example, search in international patents for utility models and inventions.

    Choosing a prototype, you should come up with a patent formula. This is a key component of any patent. It is the patent formula that has legal significance; it is the formula that defines the boundaries of patent protection. Formulation is a whole art; there are many nuances and non-obvious points in it. In the formula of a utility model or invention, all the essential features of a utility model or invention are formulated. In turn, a sign is a kind of unit of meaning, a brick from which the patent formula is made up.

    From Wikipedia:
    The claims comprise one or more claims. Each paragraph of this formula usually consists of two parts, called the restrictive part and the distinctive part, separated by the phrase different (s), s) in that .... The restrictive part of the claims contains the name of the invention and its important features, already known from the prior art. The distinctive part contains features that make up the essence of the invention, and which are new. Each claim represents one sentence. Claims are divided into dependent and independent. An independent claim characterizes the invention by the totality of its features, which determines the scope of the requested legal protection, and is stated in the form of a logical definition of the subject of the invention. The dependent claim contains a refinement or development of the invention,

    An example of a patent formula (in this case, a patent for utility model 112007):

    1. A device for rocking a bed, comprising a supporting structure, a bed, pendants connecting the bed with the supporting structure, located on the base of the supporting structure, an electromagnet with a winding connected to the electric current network through a breaker with a control unit, and a metal plate fixed to the bottom of the bed with the possibility of interaction with an electromagnet, characterized in that the metal plate is offset relative to the electromagnet in the direction of swing of the bed.

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

    3. The device for rocking the bed according to claim 1, characterized in that the control unit is made on the basis of a microcontroller.

    4. The device for rocking the bed according to claim 1, characterized in that it is additionally equipped with a remote control.

    Let's take a closer look at what in this formula is what. So:

    First comes the independent part of the formula.

    A device for rocking a bed

    is an object of patenting, an object of legal protection. The following are restrictive signs.

    containing the supporting structure,

    - the first sign of the

    bed,

    - the second sign of the

    suspension connecting the bed with the support structure,

    - the third sign

    located on the basis of the support structure, an electromagnet with a winding,

    - the fourth sign of

    the electric current connected to the network through a breaker with a control unit,

    - the fifth sign

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

    - the sixth sign. All, the restrictive part of the patent claims has ended. The following is a distinctive part, beginning with “characterized in that ...”.

    characterized in that the metal plate is offset relative to the electromagnet in the direction of rocking of the bed.

    - one distinguishing feature. That's it, the independent claim has ended. Followed by dependent items (numbered). They are no longer so interesting, because their legal value is much less than the value of an independent claim.

    Having understood what the patent formula is, we go further.

    According to paragraph 3 of Art. 1358 of the Civil Code
    an invention or utility model is recognized as used in a product or method if the product contains, and each feature of the invention or utility model is used in the method, given in the independent clause of the claims or utility model contained in the patent, or an attribute equivalent to it and which has become known as such in the given field of technology before committing in relation to the corresponding product or method of actions provided for by paragraph 2 of this article.

    In turn, according to paragraph 3 of Art. 1358 of the Civil Code
    the use of an invention, utility model or industrial design is considered, in particular, import into the territory of the Russian Federation, manufacture, use, offer for sale, sale, other introduction into civil circulation or storage for these purposes of a product in which the invention or utility model is used, or products in which an industrial design is used.

    Thus, it would seem that the Civil Code unambiguously defines cases of using, for example, a utility model. If suddenly on the market there is a device containing a supporting structure, bed, pendants, etc. according to the formula of the utility model, and this device, relatively speaking, is not mine - it means that it violates my exclusive (patent) rights to the utility model.

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

    But in Russia you can do this. Watch your hands carefully.

    Let’s add, for example, one more coil to the rocking device and consider that this change gives any advantages (in fact, this is not necessarily the case, but let's say that it is). For example, let's say that this adds a smooth ride. Leave the rest as is. As a prototype, we take the initial utility model (PM) 112007 and get a patent for our utility model, for example, with number 122860. After that, we will quietly produce beds with a swing device that use all the features of the PM 112007, but have a second coil in the drive unit. And we’ll say that beds are produced according to patent 122860.

    Obviously, a product with two coils uses both PM 112007 and PM 122860. And, it would seem, take the Civil Code and apply it to this case. But ... (drum roll ....) attention, a hole in the law:

    Clause 9 of the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 13, 2007 N 122 “Review of the Practice of Arbitration Courts in Considering Cases Related to the Application of Intellectual Property Law”:
    If there are two patents for a utility model with the same or equivalent characteristics specified in an independent claim, until a patent with a later priority date is recognized as invalid, the actions of the holder of this patent for its use cannot be regarded as a violation of a patent with an earlier date priority.

    Later, the Presidium of the Supreme Arbitration Court of the Russian Federation confirmed its position (it was not a mistake!) By Resolution No. 8091/09 of 12/01/2009, extending it to inventions as well.

    Thus, now I have to prove not that the product with two coils uses my patent 112007, but that the later patent 122860 is invalid. It looks absurd, but it really is. Moreover, it is not possible to prove the invalidity of patent 122860, since it was issued according to all formal rules and in general is completely self-sufficient.

    Unfortunately, the courts when considering patent disputes are guided by this very decision of the Presidium of the Supreme Arbitration Court of the Russian Federation. With law enforcement, everything is fine with us.

    This completely unhealthy situation is well known to patent experts and people “in the subject”. For example, on Wikipedia, it is described and called the “Case of Legal Vandalism” (article “Invention”).

    The meaning of this approach is that the patent holder has the right to use the protected decision, even if the protected decision of a third party is used without the consent of the latter, which completely contradicts the very essence of the exclusive right as a right of prohibition and the last sentence of paragraph 3 of Article 1358 of the Civil Code of the Russian Federation, relating such actions to use cases of the invention.

    Thus, patenting something serious in Russia does not make sense. Anyone can get their patent for a similar utility model, slightly modifying it, and use it without any problems. As a result, patents in Russia cost nothing - it will be much cheaper to do this simple trick than, for example, buying a license to use an existing patent. It is also pointless to invest some money in the development of new devices, technologies, methods in Russia - investments that will have to pay off from the sale of licenses will also go nowhere.

    A patent in the conditions of Russia is needed only in one case - if you yourself produce a product on it. In this case, at least no one will forbid you to do this. And you yourself cannot forbid anyone to produce a similar product - your opponent will have his own patent (later, and in a particularly cynical case, your utility model will be used as a prototype), as a result of which you will be completely legally sent to paragraph 9 of the Presidium's Information Letter The Supreme Arbitration Court of the Russian Federation of 13.12.2007 N 122.

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