What can be done with the patent. Likbez. part 4
So, we continue to have already become a traditional educational program on patent law. In this article I will talk about how the inventor can dispose of his patent, about monopoly and its nuances, as well as about licensing and alienation.
Last time, I was charged for quotes from the Civil Code, so this time everything will be in their 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.
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?
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Well, for starters, we can realize it and use the product or technology for profit, but there are two such things as the right of prior use ( 1361 GK ) and the right of after-use ( 1400 GK ).
The right of prior use is the right to continue using the invention, similar to the patented one, if this use began before the priority date. That is, if Vasya has made an electropop for himself, and you have 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 duties. So, if the patent is terminated for non-payment of the fee, then within three years it can be restored. But if, for example, Petya zamonstryach himself electropopath after the termination of the patent, but until the moment you remembered the payment of the fee and decided to restore the patent, then he has the right to use . And he and Vasya, waving their shovels merrily, go down into the sunset along a sine wave.
By the way, in this place it will also be useful to remind that using the invention for personal or family needs, not related to making a profit, is not a violation of an exclusive right. ( 1359.4 Civil Code ) That is, Sidor, who made the same electropath during the period of the patent validity, will not be able to dig other people's gardens for her for loot, unlike Vasya and Petya, but hers is completely.
In addition to the fact that his monopoly can be realized, it can be transferred to another person. You can pass on with ends - this is called alienation , and you can transfer to one or several subjects for a certain period of time with certain conditions - this is called licensing . Accordingly, in the first case you enter into an agreement on the alienation of rights exclusively ( 1365 GK ), and in the second - a license agreement ( 1367 GK ). Attention: these contracts are subject to registration in FIPS ( 1369 GK ). Without registration, such a contract is void.
With alienation, everything is clear: you retain authorship, but transfer exclusive rights in full to another person. That is, he becomes the patent owner and can do anything with your patent: he may distribute licenses, or, for example, resell.
With licensing, everything is a little more complicated: for a start, a license can be exclusive and non-exclusive. An exclusive license assumes that no other licenses can operate at the same time. Well, a non-exclusive license , as is easy to guess, suggests the opposite.
There is also such a thing as an open license ( 1368 GK ). The bottom line is that you submit an application to the FIPS, to which you are attaching a license agreement, which you undertake to conclude with anyone who wishes to conclude it under the conditions stated in this agreement. This kind of public offer. By the way, giving such a commitment, you get a 50% discount on the payment of a fee for maintaining a patent in force.
Well, here, of course, the question arises: what could be the conditions of a license agreement? And by any. This is called "freedom of contract" ( 421 of the Civil Code ). The main thing that there was indicated the licensee (to whom you give the license) and the licensor (you). And do not forget to register the contract with FIPS.
What else can I add? I would also add that if you are an altruist inventor and you just want to fix your authorship, if you get someone interested in the patent, some money, then for you there is an article 1366 of the Civil Code on the public offer to enter into an alienation agreement, willing to conclude such a contract and, in fact, on its terms. All duties will have to be paid to him, well, or to you, if after 2 years (you can’t be used earlier) you will change your mind and decide to leave the patent behind you.
Today, I have, perhaps, everything.
[UPD] All parts: 1 , 2 , 3 , 4 , 5 .
Last time, I was charged for quotes from the Civil Code, so this time everything will be in their 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.
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 realize it and use the product or technology for profit, but there are two such things as the right of prior use ( 1361 GK ) and the right of after-use ( 1400 GK ).
The right of prior use is the right to continue using the invention, similar to the patented one, if this use began before the priority date. That is, if Vasya has made an electropop for himself, and you have 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 duties. So, if the patent is terminated for non-payment of the fee, then within three years it can be restored. But if, for example, Petya zamonstryach himself electropopath after the termination of the patent, but until the moment you remembered the payment of the fee and decided to restore the patent, then he has the right to use . And he and Vasya, waving their shovels merrily, go down into the sunset along a sine wave.
By the way, in this place it will also be useful to remind that using the invention for personal or family needs, not related to making a profit, is not a violation of an exclusive right. ( 1359.4 Civil Code ) That is, Sidor, who made the same electropath during the period of the patent validity, will not be able to dig other people's gardens for her for loot, unlike Vasya and Petya, but hers is completely.
In addition to the fact that his monopoly can be realized, it can be transferred to another person. You can pass on with ends - this is called alienation , and you can transfer to one or several subjects for a certain period of time with certain conditions - this is called licensing . Accordingly, in the first case you enter into an agreement on the alienation of rights exclusively ( 1365 GK ), and in the second - a license agreement ( 1367 GK ). Attention: these contracts are subject to registration in FIPS ( 1369 GK ). Without registration, such a contract is void.
With alienation, everything is clear: you retain authorship, but transfer exclusive rights in full to another person. That is, he becomes the patent owner and can do anything with your patent: he may distribute licenses, or, for example, resell.
With licensing, everything is a little more complicated: for a start, a license can be exclusive and non-exclusive. An exclusive license assumes that no other licenses can operate at the same time. Well, a non-exclusive license , as is easy to guess, suggests the opposite.
There is also such a thing as an open license ( 1368 GK ). The bottom line is that you submit an application to the FIPS, to which you are attaching a license agreement, which you undertake to conclude with anyone who wishes to conclude it under the conditions stated in this agreement. This kind of public offer. By the way, giving such a commitment, you get a 50% discount on the payment of a fee for maintaining a patent in force.
Well, here, of course, the question arises: what could be the conditions of a license agreement? And by any. This is called "freedom of contract" ( 421 of the Civil Code ). The main thing that there was indicated the licensee (to whom you give the license) and the licensor (you). And do not forget to register the contract with FIPS.
What else can I add? I would also add that if you are an altruist inventor and you just want to fix your authorship, if you get someone interested in the patent, some money, then for you there is an article 1366 of the Civil Code on the public offer to enter into an alienation agreement, willing to conclude such a contract and, in fact, on its terms. All duties will have to be paid to him, well, or to you, if after 2 years (you can’t be used earlier) you will change your mind and decide to leave the patent behind you.
Today, I have, perhaps, everything.
[UPD] All parts: 1 , 2 , 3 , 4 , 5 .
Source: https://habr.com/ru/post/138453/
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