Kashyntseva O. National Patent Reform in the sphere of Health Care on the principle of Rule of Human Rights.

P. 6–15

The article concerns the legal issues of the patent reform in the sphere of health care on the point of the Rule of Human Rights. Among the economic factors of necessity of realization of patent reform obvious is a necessity of reduction of loading on the budget of the state to insure the proper volume of providing of population necessary medications. Reduction of cost of medications at the national market could be due to expansion of competition with generic drugs. One of methods to ensure the competition of brand drugs with the generic medicinal facilities is to provide the proper balanced public policy as for the granting procedure of patent, as well as to the protection procedure of patents.

The patent legislation of Ukraine contains the row of anomalies that conflict with one of basic principles of Intellectual Property Law – principle of humanity. In intellectual property law, we referred to the possibility of positive law be consistent on natural law, to be focused on human rights law to be humanized.

Summarizing mentioned above the patent reform in health care should consist of the following:

1. Exclude the medicines among the patentable objects of the utility models.

2. Exclude the methods of diagnosis and treatment among the patentable objects of inventions.

3. Exclude patent link from the legislation of medicines.

4. Cancel the safety link in patent law.

5. Implement flexible rules of the TRIPS Agreement into the Ukrainian legislation.

7. Draft the Resolution of the Cabinet of Ministers of Ukraine On approval of the Cabinet of Ministers of Ukraine permission to use the patented invention relating to a medicines in accordance with the requirements of national and international legislation.

Keywords: patent reform, health care, human rights, data exclusivity, compulsory licensing, medicines

Petrenko I. Features of use of literary works in the public domain, international experience and national practice.

P. 13–20

The author examines the issues related to the use of works that have fallen into the public domain, literary and intellectual elements in particular. The comparative analysis of the legislation of Ukraine with similar provisions in foreign legislation is made.

In terms of national legislation of Ukraine that regulates intellectual ownership of copyright, the public domain notion has narrow meaning, because determines that the public domain is works and objects of related rights, copyrights and (or) related rights to which are ended. However, the relevant provisions of the Civil Code of Ukraine do not contain the term public domain; although in fact convey their meaning. Thus, in accordance with Article 447 of CCU after expiry date of intellectual property rights to a work, it can be freely used by any person, if other not established by law. Minimum term of copyright for the countries that joined the Berne Convention and the TRIPS Agreement is the whole life of the author and 50 years after his death. In addition, the Convention provides the possibility of establishing greater validity in the national legislation of member countries. In the European Union, the term of copyright protection has been increased to 70 years.

It should be noted that the use of works that went into public domain are limited by the observance of moral rights of authors of these works. According to Article 438 of CCU and Article 14 of the Law the author posses the following moral rights: the right of authorship, the right to choose a nickname; the right to anonymity; the right to inviolability of the work including the right to object to any distortion, mutilation or other modification of the work which could harm the honor and reputation of the author’s work. The above-mentioned rights are permanent in Ukraine. There are also obstacles for legal use of works that have fallen in the public domain. In some cases, the right to use literary works that belong to the public domain may be prevented by hardware. Typically, the application of the latter makes a distinction protected and works that have fallen in the public domain. These tools implants into a work under the protection and in the one that is the product of public domain.

Keywords: copyright, public domain, literary works

Kovalenko T. Management of copyright and related rights.

P. 21–27

In Ukraine, copyright and related rights protected under the Law of Ukraine «On Copyright and Related Rights», which in particular protects the «moral rights and property rights of authors and their successors related to the creation and use of science, literature and art — Copyright law and the rights of performers, producers of phonograms and videograms and broadcasting organizations — related rights». The authors of the works of science, literature, art, performers, producers of phonograms, broadcasting organizations have the right to form organizations that administer economic rights of authors and other copyright and related rights on a collective basis. These organizations are called organizations for collective management of proprietary rights, and they are investigated in the article.

Keywords: copyright, collective management organizations

Zaitseva A. Problems of determination of the jurisdiction of the courts.

P. 28–35

The article reviewed the basic problems of determination of the jurisdiction of the courts over cases regarding protection of intellectual property rights to marks for goods and services. The author of the article proposed criteria for the separation of the jurisdiction in this field. In the article special attention is paid to the jurisdictional problems in cases of invalidation of certificates for marks for goods and services, cases of refusal to grant legal protection to these objects and judicial appeals against decisions of the Antimonopoly Committee of Ukraine. The author analyzed the regulations, doctrinal sources, court practice and made some suggestions for improving the current legislation. The article criticizes the approach of determining the jurisdiction taking into account only the fact of presence of public authority in legal relationship, ignoring the issue of legal nature of that relationship and execution of commanding administrative functions by public authority. Sometimes even cases of invalidation of certificates for marks for goods and services mistakenly are attributed to the jurisdiction of administrative courts. It is necessary to introduce a uniform approach of determining the jurisdiction in the field of protection of intellectual property rights, including the protection of marks for goods and services. Cases in which public authority exercises commanding administrative functions in relation to the plaintiff just in the relationship that is in dispute must be attributed to administrative jurisdiction. In the majority of categories of cases in the field of protection of rights on trademarks relationship is of private nature and these cases, depending on subject matter might be attributed to the jurisdiction of commercial courts or general courts in civil proceedings. It is important to note that in cases of invalidation of certificates for marks for goods and services the certificate itself is to be found invalid, but not a decision based on which it is issued. Disputes over decisions of the Antimonopoly Committee of Ukraine are to be referred to the jurisdiction of commercial courts on the basis of a direct requirement of law. In the course of the studies, it is proposed to define the term “public law dispute” in the Code of administrative legal proceedings of Ukraine for a clear delimitation of jurisdiction of administrative courts. The Article 12 of the Code of civil procedure of Ukraine, which contains an exhaustive list of categories of cases under the jurisdiction of commercial courts, needs to be amended. It would be appropriate to include cases of the protection of intellectual property rights.

Keywords: intellесtual property, legal protection, jurisdiction, trademarks, marks for goods and services

Petrenko S. The scope of the specific tasks during the forensic examination for compliance of an invention (utility model) with novelty patentability conditions.

P. 36–45

The article considers the relationship between the scope of a particular expert problem which is being solved during the forensic examination in cases about the compliance of an invention (utility model) with the novelty patentability condition, and the formulating (editing) of the question that is put to the expert.

According to section 4.1.1 of Procedure of forensics expertise related with inventions and utility models, at one stage of research an expert in cases of cancellation of a patent on an invention (utility model) because of its bar to novelty patentability condition, essential features of the invention (utility model) to the date of filing of the application for such intellectual property objects, and if priority is claimed, by the priority date, is being checked.

If the unfamiliarity of characteristics of independent claim of an invention (utility model) in the art is determined, the examination of features of the dependent test item is not conducted. Thereby, sometimes for decision of legal expertise the question is put which limits the expert only with a research of features of independent claim of an invention (utility model). The results of this study will not affect the final conclusions of the forensic examination. However, the doctrine of patent law know that the scope of protection defined by all claims of an invention (utility model), taking into account the totality of attributes that belong to it. Therefore, such a restriction is unacceptable in order to complete the expert studies and objectivity of their results.

An expert’s research of totality of essential features of an invention (utility model) contained in independent and dependent claims, in terms of information on prior art to the date of filing of the application and, if priority is claimed, by the priority date, also makes sense in the course of judicial examination in cases where the subject of call demands its recognition of patent as invalid in part because of its bar to novelty patentability conditions under Part. 1 Art. 33 of the Law of Ukraine «On Protection of Rights to Inventions and Utility Models». Thus, the forensic study can establish that from the art a set of features of independent claim of an invention (utility model) is known, and a set of attributes of independent and one of dependent claims of an invention (utility model) at a constant technical result is not known. In such circumstances, the court may found the patent as partially invalid in the sense of reducing the amount of patent rights. Thus, if the subject of call requirements concerning the recognition of patent for an invention (utility model) invalid due to a bar to novelty patentability conditions or partial recognition of a patent as invalid with the corresponding adjustment independent claim, then to the solution of expertise it is necessary to raise the question as follows: «Does granted for research papers (case file № 000) information, according to which a set of features of the claims under the patent № 000 became generally available (known) in the world of art to the date of application № 0000, and if priority is claimed, by the date priority»?

Keywords: forensics, utility model, criteria for patentability, novelty

Koval I. Legislative regulation of contractual relations in the field of intellectual property: the state and prospects of development.

P. 46–54

The norms of current legislation of Ukraine, regulative contractual relations in the field of intellectual property, are analyzed in the article. The features of the legislative regulation of contractual relations are educed in a copyright and industrial property rights. Problems and prospects of improvement of the legislation are certain about the agreements related to transfer of intellectual property rights. To general directions of development of this legislation the legislative providing of functional specialization of norms is attributed about agreements in the field of intellectual property, and also normative regulation of legal forms of involving of intellectual property rights in innovative activity.

Keywords: contractual relations, intellectual property

Androschuk G., Davymuka S. Art market and resale right in the eu and ukraine: economic and legal analysis.

P. 55–65

Gives economic and legal analysis and projections for the development of Ukrainian and world art-market. The art market is a system of cultural and economic relations that define: the scope of supply and demand for works of art, the monetary value of works of art, and infrastructure and specific services for servicing this market. Particular attention is paid to the establishment and development of economic and legal institution of the route, the analysis of the EU art market compared to the major markets of other countries. The main positive and negative aspects caused by the adoption of Directive 2001/84/EC «on the resale right for the benefit of the authors of original works of art» (Resale Rights Directive). The conclusion of the need of sustainable art market of Ukraine by the Member States for the purchase and sale of works of art, harmonization of national provisions of law following the provisions of the Directive 2001/84/ЄС on the basis of existing problems and above experience in its implementation mechanism

Keywords: art-market, royalties, sales, resale right, works of art

Kharchenko V. Counteraction intellectual piracy is in Ukraine: providing of guard of intellectual ownership rights or affecting method public policy and mechanism of unfair competition.

P. 66–77

In the article the questions of becoming and development of institute of guard of rights are examined on the results of creative activity and mean of individualization in Ukraine from the moment of finding of independence and to the present tense. Specified on social, political and other factors which stipulated the high enough indexes of intellectual piracy in sew on to the country to the not border of XX–XXІ сenturies. The tasks of non-state associations of companies-producers of business and entertaining software are analysed, films, telecasts, music, books and magazines, and also mechanism of their influence on the public policy of governments of the most developed countries of the world. The mechanism of influence of International alliance of intellectual property is specified (International Intellectual Property Alliance (IIPA) on the foreign policy of the USA and subsequent economic approvals, which are used the indicated country to the states, to gettings status of «Priority Foreign Country».

Grounds and occasions of application in regard to Ukraine of different sort of limitations are analysed in foreign economic activity, rights related to violation on the objects of intellectual property, and also including of Ukraine in «Special 301» List. The gnosiological aspects of distribution are analysed in Ukraine of intellectual piracy, public policy of counteraction the indicated encroachments, and also directions and concrete steps of construction are determined in sew on to the country of innovative so-ciety.

Examining a level and system of preparation in Ukraine of specialists in ІТ-sphere, the high level of domestic programmers, and also their competitiveness, is established at the market of the computer programming and creation of software products both in the countries of Western Europe and in the USA. Efforts are analysed on forming in sew on to the country of favourable terms of development of industry of programmatic products, creations of highly productive workplaces, bringing in of investments, increase of volumes of output of hi-tech products, stimulation of science linkage export and substituting for the import of software products, realization of scientifically-technical potential of Ukraine.

Grounded, that realization of various influence on ІТ-сферу in Ukraine outside both governments of the separate states and ungovernmental associations of companies-producers of intellectual content, not contingently the level of violation of rights on the objects of intellectual property in our to the country, but depends on a concrete political situation and external influence has for an object on the public policy of Ukraine. At the same time such actions violate and rights of defence from an unfair competition, substantially complicate (up to elimination) the production of business and entertaining software in Ukraine, and also conditioning exploitation of domestic specialists exceptionally in the direction of the off-shore programming (ІТ-outsourcing).

Keywords: determinants of crimes in the field of intellectual property, International Intellectual Property Alliance (IIPA), «Special 301» List, ІТ-outsourcing

Karpenko S. Refunds on deposits of physical persons of banks in the process of liquidation: financial and legal aspects.

P. 78–86

The problem of the return of funds on deposits of individuals placed in bank institutions that are under liquidation. Analysis of judicial practice shows the unequal application by courts of the relevant legislative provisions governing the legal nature of deposit accounts and fulfillment of agreements on the return of deposits. Analyzes the position of civil science and civil law on the regulation of the deposit agreement, the execution of monetary obligations. Investing natural and legal persons in bank deposits is the passive banking operation and is characterized by increased banking risks. Also analyzed approaches financial and legal science and banking legislation in the definition of the rights and obligations of banks arising from the provision of banking services to service deposit agreement. The general principles of operation of national insurance of bank deposits. Analyzes the provisions of current legislation in order to identify priority rules enshrined banking legislation, in terms of return guaranteed amounts of deposits of individuals by banks that are under liquidation. It is shown that the relations arising in connection with the existence of the deposit agreement inherent in complex dichotomous nature, based on the application of the provisions of the civil and financial legislation in the process of solving the procedure for the return bank deposit.

Key words: bank deposit, banking, bank liquidation, the Deposit Guarantee, the national deposit insurance system

Kurowski S. On some aspects of the state to guarantee the legal protection of bank relationships.

P. 87

This article analyzes the general approaches to understanding banking relationship as an object of legal protection. The influence of the financial and economic factors to ensure the stability of the banking system. The stability of the banking system and the more — the stability of the national currency standing as the initial objectives of the central bank of the state. Identify the legal mechanisms that affect the solution of the task of ensuring the stability of the banking system. Among the areas of ensuring the stability of financial resources circulating in the banking sector, substantial given to banking regulation and supervision functionality which is intended also to legal protection of banking relations. Note that in Ukraine the combined form of banking supervision, which involves concentrating the functions of supervision within the central bank, in close cooperation with the internal and external audit. Identify areas of improvement of the National Bank of Ukraine, including in the direction of banking regulation and supervision, auditing, financial monitoring and more. We study the foreign experience of legal protection of banking relations. As one of the causes of the global crisis last called deficiencies in financial regulation and supervision, for Ukraine it is vital to solving systemic problems of improvement of legal regulation of banking relations.

Keywords: banking, banking relationships, the National Bank of Ukraine, legal protection

№ 3 (83), 2015
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