image_pdfimage_print

History of patenting

Dovhan H. Legal regulation of invention in the Ukrainian Soviet Socialistic Republic in 30th of the XX century

P.    5

The article is devoted to the history of invention law in the USSR in 30th years of the XX century. It is based on the analysis of legislation as well as works of Ukrainian and Russian scholars who worked at that time. Special attention is paid to the elucidation of law enforcement practice. It was done by giving the examples of archive materials from the Central State Archive of Public Organizations of Ukraine as well as Central State Archive of Supreme Bodies of State Power and Administration of Ukraine.
At the end of the 20th in the USSR an important changes occurred in economy. It is stipulated the necessity of revision of legislation. A new legal act in the sphere of invention was issued on April, 9 1931. It was Regulations on inventions and technical improvements.
The main novel of this act was renewal of inventor’s certificate. Inventor could choose the form of legal protection — patent or inventor’s certificate. If the inventor chose certificate, the right of invention’s use belonged to the state and cooperatives. Other could use it only by authority of state bodies and on terms set by them. At the same time obligatory issue of inventor’s certificate in some cases was set forth.
Analysis of provisions of Regulations 1931 showed that state encouraged and supported mainly those inventors who had chosen inventor’s certificate as the legal form of his rights’ protection. It was done by giving them a lot of advantages.
For the first time in the world Regulations 1931 introduced a new object that is technical improvements. It was propositions of technical and constructive character or which changed the technological process of production. But such propositions didn’t have novelty as the criterion of the invention.
During 30s an essential reorganization of bodies in the sphere of invention had been carried out. Many authors underlined that it was unexpected, purposeless and groundless. As the result of this reform, more problems appeared but not the improvement of management.
At that time timely realization of inventions as well as now was one of the topical problems. In the report of the head of Central Council of Inventor’s Association of Ukraine was emphasized on unsatisfactory situation concerning inventions’ realization. «Destiny» of the invention depended on agency that at first received the application. Different agencies used different criteria for the determination of industrial utility of the invention.
In 1931 criminal responsibility was provided for the infringement of laws on invention. National association of inventors was playing an important role. It provided legal con sultations to the inventors, taking active part in law making process in this sphere. So, state authorities were taking a lot of measures to support invention. It is worth to mention that some problems, for example, timely realization of inventions is not solved in the modern Ukraine.
Key words: invention, inventor’s certificate, patent, realization of invention, National association of inventors

 

Copyright

Maidanyk L. Realization of common property rights of spouses according to the civil legislation of Ukraine 

P.   12

This article highlights the possibility of extending the regime of common property of spouse to works of copyright under the civil legislation of Ukraine. Also problematic issues of realization of common property rights of spouses on objects of copyright are analyzed. The author’s property rights are examined depending
on the basis of their origin.
In our opinion, should proceed from the position that when the property is to be understood as intellectual property rights, which may in some cases be subject to these provisions of the Civil Code of Ukraine and Family Code of Ukraine. The question of whether to extend the provisions of Art. 60 of Family Code of Ukraine into initial and secondary economic copyrights should be addressed through the analysis of the legal nature of copyright. If you follow the broad approach to understanding this issue, may conclude that the reason the acquisition of economic rights to works of copyright law has no legal significance for spreading the regime of common property to economic copyrights. When one spouse created a work while married copyrigh is only a result of his personal creative work, such as economic rights in computer programs, it is not appropriate to refer to the common matrimonial property, since there is no satisfied criteria for joint work of copyright. It seems that the initial copyright can occur only for one reason – the creative work of an individual. To initial economic copyrights should
be applied a similar approach in the case in which the acquisition of intellectual property rights in a work by one spouse as a result of his/her creation (acquisition of original intellectual property rights in the work) should be regarded as personal rights and as a result – private property of one of spouse. At the same time, to distinguish between intellectual property rights in the work and in come from the use of such rights. Therefore, the income from the exploitation of copyright should be referred to the general approach of the common property of spouses. The agreements on disposal of economic copyrights do not require mandatory state registration or notarization, as well as written consent to signing the contract is not required. Except in cases where there is reason to include intellectual property rights in the work categorized as valuable property within the meaning of civil legislation of Ukraine. It should be complemented the art. 57 of Family Code of Ukraine with the following provisions: «intellectual property rights in a work created by one of the spouses belong to him personally. The court may
admit the second spouse entitled to a share in such rights if the spouse can prove it by their actions (in addition to his creative work) contributed to the creation of such a work.
Key words: common economic rights for copyright, spouse, copyright.

 

Drobyazko V. Conventional protection of copyright in the Berne and Universal Conventions

P. 18

The article is devoted to the comparative analysis of the main problems of the conventional copyright protection in two international conventions, including: the
person entitled to the protection of the Convention; protected works; terms of statutory protection; statutory term of protection; personal rights of authors; right of translation work; the right to reproduce copies of the work; right of publicity.
Keywords: copyright, the Berne Convention, the World Convention

 

Designations

Afian А. Geographical indications: a property without an owner

P.    26

The right to a geographical indication of its content has a differences from other intellectual property rights.

If we consider law on geographical indications from proprietary theory view, the law has to comprise proficiency, using and disposal of geographical indications. Part 1 of tbsp. 503 CC of Ukraine establish exhaustive list of intellectual property rights on geographical indications: 1) right on the recognition designations of product (service) to geographical indications; 2) right for using geographical indications; 3)rights to prevent misuse geographical indications and forbid such using. As seen from this norms for geographical indications only inherent a right for using which is only part of ownership content. If we consider a right on geographical indications in theory exclusive rights contest, this theory is based on private monopolies. The subject of intellectual property law has exceptional right of using appropriate object and allow or forbid a using of this object by another persons. But legal nature of geographical indications doesn’t fit into this conception. Firstly, as was said before, the disposition of geographical indications is impossible. Secondly, a plurality of subjects, which use same geographical indication contemporaneously but independently from each other directly point out on lack of monopoly of one person in concerning to geographical indications.
Here is a suggestion that the owner of geographical indications is a state because only state gives a permission to use a geographical indication to producers of product. But state has no authorities which is specific to the owner like possession, usage and disposal.

Geographical indications can not be the object of people property or the local community. The role of the people in the creation of geographical names, among which can later distinguish geographical indications is quite clear. Territorial community has the right to change the name of the settlement, which may also make a connection with a geographical indication. However, the people and the local community have no right of ownership on geographical indications.

Identify single owner of geographical indication is impossible. Unlike other intellectual property rights, none of the objects of legal relations in one way or another related to geographical indications hasn’t enough rights to identify someone as an owner. Product manufacturers are unable to manage geographical indications. The state, the people of Ukraine and municipalities can not use and manage this way of individualization.

There can’t be the owner of geographical indication, since ownership regime does not extend to all phenomena. Geographical indications appeared historically because of specific cultural traditions of a certain area, and history and culture is public domain which assignment not only illogical, but can not because of the nature of their origin.
Keywords: geographical indication, theory of ownership

 

Contractual arrangements

Rabotiagova L. Some aspects of concluding a trademark license agreement

P. 35

The article describes some practical aspects of concluding licensing agreements for the use of a trademark. The conditions of the license agreement that determine the scope of intellectual property rights for a trademark, provided to the licensee for use, the mutual rights and obligations of the parties to the contract are analyzed.
It is shown that for the period between registration of a trademark and the moment of entering into a license agreement, it is possible to terminate the legal protection of the trademark completely or partially, change its owner (s), the scope of the rights granted by the certificate, and others.
It follows that when concluding a license agreement a certificate for a trademark and an extract from the State Register of Ukraine’s certificates for signs for goods and services must certify the intellectual property rights to the licensor’s trademark. This will reduce risks in the implementation of the license agreement
Key words: license agreement,a trademark,conditions of the agreement, scope of the rights

 

Forensics

Sopova К. A sign for goods and services (trademark) – the name of the medicinal product as an object of examination of court expertise 

P. 45

The article considers methods of determining the similarity of the names of medicines that are registered or used as signs for goods and services that differ from the established methods for determining the similarity of signs in other classes of the Nice Classification. The phases and features of the study of the names of medicines for determining their similarity are compared with the domestic judicial and expert practice and practice of the European Union.
In addition to standard methods for determining similarity of signs must be taken into  account other factors: features of functional purpose and regulations for the names of drugs, their selling on the market and that the choice of drug is determined by intermediaries (doctors and pharmacists).
There is no general rule that should be applied to determine the similarity of the names of medicines. A distinct complex of circumstances must be considered and assessed in each case.
It is also important to consider the functional features of naming drugs (identification of drugs and information about its effect and purpose), and special conditions for their treatment procedures in Ukraine.
Key words: name of the medicinal product, trademark, court expertise, similarity of signs

Defence

Shtefan А. Abuse of civil procedural rights as a procedural legal fact

P. 62

Procedural legal fact is a real action (inaction), whose legal model provided in the rules of civil procedural law and whose commission is able to generate procedural implications regarding to the nascence, the transformation, the proper operation (development) or the termination of civil procedural relationships.
According to the traditional classification of legal science, on the basis of volitional criterion, legal facts divided into events and conditions that are independent of human will and actions that are the result of some volitional expression. In turn, the legal actions are taken to classify as legitimate and illegitimate. This  lassification does not cover all of possible procedural behavior that is able to influence on the civil procedural legal relationships. In numerous cases the procedural implications in the case are arising from the offense of abuse of civil procedural rights that is not a legitimate or illegitimate act.
Legitimate actions are undertaken in accordance with the law. Abuse of procedural rights formally meets the requirements of the law but aimed at achieving a purpose other than the actual exercise of the right.
Illegitimate actions are undertaken with the violation of civil procedural law. The compliance with the nature of abuse of procedural rights and violation can be detected by analyzing of elements of violation:
1) a subject as a person who commits certain acts;
2) a subjective side as a set of intent, motive and purpose, that are reflecting the attitude of the subject to the action exerted on them. Concerning to abuse of procedural rights we can talk about the existence of intent (willful and deliberate nature of the action), a motive (need to obtain a certain result) and goals (achieving of the desired result or preventing of occurrence of adverse effects);
3) an object as public relations and values, protected by law;
4) an objective side as the outward expression of an offense which is a mandatory element of the violation.
Acts committed by abuse of procedural rights do not apply to illegal because they does not occur the violation of law. Abuse of procedural rights formally corresponds to legitimate actions but this formal legitimacy is not in accordance with principles of civil procedural law and the purpose of the procedural regulation. Committing of abuse is directed at achieving a purpose other than the actual implementation of the law according to its assignment.
Abuse of procedural rights is the use of the opportunities provided by the law within a certain subjective rights, contrary to its purpose which is defined in the Civil Procedural Code directly or follows from the general principles of civil procedural regulation.
This provides reasonable grounds to decide that the abuse of civil procedural rights is a special kind of actions that could give rise to procedural consequences and, therefore, is an independent kind of procedural facts-actions.
Key words: abuse of civil procedural rights, good faith, procedural legal fact

 

Economics of intellectual property

Butnik-Sіversky O. Theoretical aspects of understanding the new economy from the position of intellectual property sphere

P. 71

In the article the author considers the problem of determining the nature and features of formation, functioning and development of the new economy, taking into account evolutional changes. It is analyzed controversial attitudes of scientists, their approaches, different interpretations regarding understanding the meaning of «new economy» concept in the conditions of transformational processes in modern economy. It is proposed to complement the expression forms of new economy
with the intellectual property sphere that extends its influence to all sectors of economy, and identified the perspective tasks of Ukraine promotion to the new economy.
Keywords: new economy, attitudes of scientists, processes in the modern economy, intellectual property sphere

 

Scientist’s view

Kushnir I. Some aspects of the development and use of financial and legal models of housing construction in Ukraine

P. 83

The article examines the financial and legal models of housing construction in Ukraine. It turns out that the solution of the question — what means – their own or involved, and if so – at the expense of some resources (financial institutions, budget, funds, citizens, etc.), appears not only for each particular developer, but also should be the subject of development State housing policy. Housing is one of the key values for every person. Accordingly, any economically developed or socially oriented state is interested in providing its citizens with affordable and quality housing. Along with this, the construction industry has always been the driving force behind the positive economic changes in the country, and the availability of financial resources under accessible conditions is always an impetus for
the development of the industry, and hence the support of the national economy.
The provisions of the national legislation, the practice of the developers’ activity are analyzed, the positions of scientists and specialists regarding the positive moments and risks of using various financial and credit mechanisms fixed by the current legislation are examined. It is emphasized that for any developer, investor and purchaser in the sphere of construction, interests converge in order to find the best options for raising funds for construction, successfully implement construction projects and obtain housing in the property. The ways of improving the legislative regulation, as well as the possibility of using alternative models of construction financing, are considered. It is noted that taxation should be taken into account when choosing certain financial and credit mechanisms. A conclusion is drawn about the possibility of legislative consolidation of various financial and legal models of residential development. It is emphasized the need to improve legislative regulation regarding the use of various financial and credit mechanisms in order to eliminate existing risks of unfair activities of construction activity participants, in particular developers. In addition, risks related to the activities of a manager who performs in fact a monopoly role of the institution through which all cash flows related to financing and housing construction are carried out should be taken into account. Also, the issue of taxation should be one of the key issues that is chosen when choosing a specific financial and legal model of housing construction.
Key words: housing construction, construction taxation, financial and credit mechanism, financial and legal model

 

Internet relations

Glotov S. Legal regime of works in the digital environment: general theoretical provisions

P. 93

The article concentrates on the analysis of the general theoretical provisions of the concept of «legal regime» as applied to the works in the digital environment. It is presumed that a work in digital form is an atypical object of civil law rights. Therefore, it is proposed to take as a major premise the reasoning of V.I. Zhukov, who, while investigating atypical intellectual property, pointed out that the concept of «legal regime» should be applied insofar as we consider the properties of material or spiritual objects that determine the behavior of a person being the subject of law, where the inherent properties (tangible and intangible) of, for example, a computer science object should be called attributes.
Keywords: legal regime, copyright, work in digital form, atypical object of civil law rights, object properties, digital environment.

 

№ 2 (94) 2017