Protection of intellectual rights in Russia

Any result of creative or intellectual activity is protected by law. For copyrights, such protection is established immediately after the creation of a work or similar object. For patent rights, the protection is established upon registration of the object and entry of information about the right holder in the registry. Legal protection is maintained within the term of validity of a patent or certificate, and the most effective option to protect the interests of the right holder is to apply to the court.

Protection of infringed intellectual rights

The object of intellectual property rights can be used by the owner at his own discretion - to conduct production activities, for the full or partial transfer of rights to third parties. Any forms of use of another's object must be fixed in the form of an agreement on alienation of rights or a licensing agreement. Consequently, exclusive rights are recognized as infringed if the following facts are established:

• another's intellectual property is used without the permission of the right holder (if the patent or certificate of protection has not expired);
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• if there is a violation of the terms of the transfer agreement (for example, the invention is used outside the territory specified in the licensing agreement)
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• if the right holder has not received monetary remuneration for the rights transferred, or other conditions of payment have been violated.

The possibility of protecting intellectual rights in the Russian Federation provides a set of measures that the author or legal owner of the object is entitled to use. First of all, protection is provided by registering and obtaining patents, trademark certificates.

At the registration stage, the protection is in the following areas:

• setting the priority of rights at the registration of the application - each subsequent application will be rejected if technical solutions or means of individualization are the same as the previously submitted subject matter;
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• possibility to extend the patent to the territory of other states - for this purpose an application under the PCT procedure or under the Eurasian Patent.

Protection of the results of intellectual property in the Russian Federation after the registration of rights is carried out in pre-trial or judicial procedure. Let's consider what options are available to the right holder if he is faced with a violation of his legitimate interests.

Non-judicial options for protecting intellectual property rights

Protection of the company's intellectual property is not necessarily accompanied by an appeal to a court. The legislation of the Russian Federation allows for the following options:

• fixing the order of use of other people's rights in the form of contracts (for example, the definition of the territory of use of the patent in the provisions of the license agreement);
• requesting that the infringer immediately cease the unauthorised use of another's rights
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• referral to law enforcement authorities for criminal or administrative responsibility

Violations in the field of patent rights may entail administrative or criminal liability. To impose sanctions under Article 7.12 of the CAO RF the amount of damage does not matter, and the punishment will follow not only for the illegal use of someone else's rights, but also for disclosure of the essence of a unique technical solution, misappropriation of authorship, etc. The maximum possible punishment under this article threatens the company, the fine can reach 40 thousand rubles.

Criminal sanctions will follow under Art. 147 of the Criminal Code of the RF only in case of major damage to the right holder. The maximum amount of punishment threatens for violation of patent or copyright committed by a group of persons - the sentence may establish imprisonment for up to 5 years.

If a dispute arises about the priority of applications or the termination of legal protection, you can contact the service of Rospatent or the Russian Copyright Agency (depending on the nature of the dispute). Also the mentioned offices will be involved as a party to the case when applying to the courts.

For special objects of intellectual and industrial property may use other options of protection. For example, the production secret (know-how) is not subject to registration with the issuance of a patent. The organization itself must approve the regulations on access to confidential and secret information, introduce the official secrecy regime and appoint responsible persons. Only if these requirements are met can claims be made against third parties who have gained access to classified information without a legal basis.

Judicial order of protection

If the legal requirement to stop infringement of exclusive rights is not fulfilled, the protection of the interests of the right holder will take place in court. In Russia, patent and copyright protection is possible through courts of general jurisdiction, arbitration, and the Intellectual Rights Court, depending on the nature of the infringement. Let us highlight the key nuances that must be taken into account when applying to court:

sue can be the author or right holder of the object, as well as the person who legally obtained the rights under the license agreement;.
• the plaintiff can conduct the proceedings personally or through representatives - as a representative can be a lawyer or a solicitor, as well as a patent attorney;
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• within the litigation it is possible to claim a fixed amount of compensation or demand compensation for the damages caused by the infringement;
• all infringing products would be confiscated and destroyed at the conclusion of the litigation.

If the right holder decides to recover damages, he must not only prove the fact of infringement, but also present a calculation of the claim. When claiming compensation in a fixed amount, this is not required, it is only necessary to prove the fact of infringement. The amount of compensation will be determined by the court in one of three ways:

• in a fixed amount - in the range from 10 thousand to 5 million rubles. (the court will set the amount of payment based on the nature of the violation);
• double the value of counterfeit goods (to calculate the claim price an expert examination will be required)
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• twice the value of exclusive rights - the valuation will also make an expert on the basis of market prices for the use of similar rights.

The easiest option would be to recover compensation in a fixed amount. If the protection of interests in court is done through representation, the offender will be charged the costs of legal assistance.

Litigation may be initiated to invalidate the patent and cancel the registration in the registry. In this case, a representative of the service of Rospatent is involved in the case, who presents a reasoned opinion on the merits of the dispute. One of the cases when the legal protection regime is subject to annulment is the non-use of the trademark within 3 years after the certificate was issued.

After the judicial act, the right holder has the right to demand its publication, if the document contains proof of the right of authorship. This option is an additional means of protection if the subject matter of the dispute was a challenge to registered rights.

Our services

Federal Law No. 316-FZ regulates the powers of patent attorneys in the protection of intellectual property rights. Prof-PatentProf-Patent offers a full range of services for the protection of patent and copyright, including:

• consulting in registration of rights, conclusion of contracts and license agreements;
• analysis of documents related to the identification of violations of exclusive rights, as well as the choice of the best options for protection;
• drawing up the documents that will be required for protection - written claim, contracts, statement of claim, etc.;
• representation at the service of the Russian PTO and the courts in defending the interests of the right holder.