The article considers novel legal regulations regarding non-original objects generated by a computer program. It was established that at the level of the law, legal certainty was introduced regarding the legal regime of these objects: the concept and characteristics of a non-original object, generated by a computer program, subjects of property rights, the scope of such rights, their validity period, the possibility of transfer (alienation) were defined) of these rights, as well as an opportunity to properly protect such rights. The signs of a non-original object generated by a computer program are defined: difference from already existing similar objects; creation of an object solely as a result of the operation of a computer program without direct human participation. It has been proven that the independent legal personality of artificial intelligence is highly debatable, and this concept goes far beyond the boundaries of intellectual property law. It is justified that giving artificial intelligence an independent legal personality as of today is a hasty step, therefore the approach reflected in the law deserves attention.It is substantiated that the legal regime of an object that is non-original and that is generated by a computer program is very similar to the legal regime of a work as an object of copyright, which enables the relevant subjects to exercise and protect the rights to these objects. It was established that as a result of the creation of a non-original object generated by a computer program, personal non-property rights do not arise at all, and property rights belong to the owner of the property rights to the computer program that generated such an object. It has been proven that the property rights to a nonoriginal object are in fact identical to the property rights of the author (other subjects of property copyright), the scope of which is determined by Article 12 of the Copyright Law.It is established that when creating a non-original object generated by a computer program, one should observe the property rights to other non-original objects generated by a computer program, which are used in the process of generating a new non-original object; to objects of copyright and/or related rights that were used in the process of generating such non-original object.
{"title":"The sui generis right to non-original objects generated by a computer program: novelties of legal regulation","authors":"O. Doroshenko, L. Tarasenko","doi":"10.33731/32023.282325","DOIUrl":"https://doi.org/10.33731/32023.282325","url":null,"abstract":"The article considers novel legal regulations regarding non-original objects generated by a computer program. It was established that at the level of the law, legal certainty was introduced regarding the legal regime of these objects: the concept and characteristics of a non-original object, generated by a computer program, subjects of property rights, the scope of such rights, their validity period, the possibility of transfer (alienation) were defined) of these rights, as well as an opportunity to properly protect such rights. The signs of a non-original object generated by a computer program are defined: difference from already existing similar objects; creation of an object solely as a result of the operation of a computer program without direct human participation. It has been proven that the independent legal personality of artificial intelligence is highly debatable, and this concept goes far beyond the boundaries of intellectual property law. It is justified that giving artificial intelligence an independent legal personality as of today is a hasty step, therefore the approach reflected in the law deserves attention.It is substantiated that the legal regime of an object that is non-original and that is generated by a computer program is very similar to the legal regime of a work as an object of copyright, which enables the relevant subjects to exercise and protect the rights to these objects. It was established that as a result of the creation of a non-original object generated by a computer program, personal non-property rights do not arise at all, and property rights belong to the owner of the property rights to the computer program that generated such an object. It has been proven that the property rights to a nonoriginal object are in fact identical to the property rights of the author (other subjects of property copyright), the scope of which is determined by Article 12 of the Copyright Law.It is established that when creating a non-original object generated by a computer program, one should observe the property rights to other non-original objects generated by a computer program, which are used in the process of generating a new non-original object; to objects of copyright and/or related rights that were used in the process of generating such non-original object.","PeriodicalId":356184,"journal":{"name":"Theory and Practice of Intellectual Property","volume":"363 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122837915","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is well known that intellectual property monopolies for medicines reduce physical and economic availability. Main purpose of the study is to conduct brief review of foreign scholarly views on evergreening patenting practice in the field of pharmaceuticals, to demonstrate implications of such abusive practice and to exemplify good practices used in several countries to address the problem. Evergreening practice poses a serious challenge for healthcare system of Ukraine, but there are promising examples in several countries (e.g. Argentina, Brazil, India) of limiting evergreening.
{"title":"ABUSE OF PATENTABILITY CRITERIA WHEN PATENTING INVENTIONS RELATED TO MEDICINES","authors":"S. Kondratyuk","doi":"10.33731/32023.282331","DOIUrl":"https://doi.org/10.33731/32023.282331","url":null,"abstract":"It is well known that intellectual property monopolies for medicines reduce physical and economic availability. Main purpose of the study is to conduct brief review of foreign scholarly views on evergreening patenting practice in the field of pharmaceuticals, to demonstrate implications of such abusive practice and to exemplify good practices used in several countries to address the problem. Evergreening practice poses a serious challenge for healthcare system of Ukraine, but there are promising examples in several countries (e.g. Argentina, Brazil, India) of limiting evergreening.","PeriodicalId":356184,"journal":{"name":"Theory and Practice of Intellectual Property","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124518163","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Keywords: selection invention; medical inventions; examination; patentability criteria The article contains an analysis of approaches to the examination of selectioninventions for medicines. Selection inventions are inventions created in theprocess of selecting an optimal compound from a group of known compounds or in theprocess of selecting parameters from an interval of known parameters related to thecompounds. Selection inventions must demonstrate an unexpected result that is unknownin the prior art. Selection inventions can potentially be a means of obtaining amonopoly on an already known compound or a medicinal product containing thatcompound, or a method of producing the compound, etc. Therefore, the examination of criteria of patentability for selection inventions is important for maintaining the balanceof interests between the patent holder and the society. The article contains informationabout the difference between the examination of inventions in the patent officeand the forensic examination. The analysis of approaches to examination includesthe law of Ukraine for invention, which provides for the means of combating evergreen(secondary) patents, as well as the opinion of experts of the Patent Office abouta patentability of selection inventions. The article contains the approaches to examinationaccording to the regulations of the European Patent Office and other nationaljurisdictions, as well as the opinion of forensic scientists practising in this field. Apractice example of examination of a selection invention is given. The summary includesrecommendations on approaches to the examination of selection inventions:the subject of the selection invention should not have been specifically disclosed earlier;the subject should exhibit previously unknown and unexpected advantages; thedescription of the selection invention should contain reasonable evidence of non-obviousnessof the selection; the selection invention should meet the condition of inventivestep according to the general requirements as for all the inventions. If unexpected advantagesof existing products were deemed patentable under the applicable law, thepatentability of a selection could be considered when an inventive step is present.
{"title":"Aspects of the examination of patents relating to medical inventions","authors":"Oleksandr Zhykharev","doi":"10.33731/62022.274630","DOIUrl":"https://doi.org/10.33731/62022.274630","url":null,"abstract":"Keywords: selection invention; medical inventions; examination; patentability criteria \u0000The article contains an analysis of approaches to the examination of selectioninventions for medicines. Selection inventions are inventions created in theprocess of selecting an optimal compound from a group of known compounds or in theprocess of selecting parameters from an interval of known parameters related to thecompounds. Selection inventions must demonstrate an unexpected result that is unknownin the prior art. Selection inventions can potentially be a means of obtaining amonopoly on an already known compound or a medicinal product containing thatcompound, or a method of producing the compound, etc. Therefore, the examination of criteria of patentability for selection inventions is important for maintaining the balanceof interests between the patent holder and the society. The article contains informationabout the difference between the examination of inventions in the patent officeand the forensic examination. The analysis of approaches to examination includesthe law of Ukraine for invention, which provides for the means of combating evergreen(secondary) patents, as well as the opinion of experts of the Patent Office abouta patentability of selection inventions. The article contains the approaches to examinationaccording to the regulations of the European Patent Office and other nationaljurisdictions, as well as the opinion of forensic scientists practising in this field. Apractice example of examination of a selection invention is given. The summary includesrecommendations on approaches to the examination of selection inventions:the subject of the selection invention should not have been specifically disclosed earlier;the subject should exhibit previously unknown and unexpected advantages; thedescription of the selection invention should contain reasonable evidence of non-obviousnessof the selection; the selection invention should meet the condition of inventivestep according to the general requirements as for all the inventions. If unexpected advantagesof existing products were deemed patentable under the applicable law, thepatentability of a selection could be considered when an inventive step is present.","PeriodicalId":356184,"journal":{"name":"Theory and Practice of Intellectual Property","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115359361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Keywords: intellectual capital, goodwill, customer base, intangible asset, identifiableassets, unidentified assets, database, trade secret In the article, the author raises questions about one of the important components of the company's intellectual capital, which determines the company's competitiveness — the «customer base». Such an asset,according to domestic legislation, is not recognized as an intangible asset. Internationalstatistics of merger agreements (unification) of companies determine that this asset accountsfor the largest share of the value of the entire agreement. In this regard, theanalysis of the concept of «customer base», the identification of features of accountingand evaluation of the «customer base» for reporting purposes. Moreover, the study of acceptableevaluation methods in practice are tasks that are extremely relevant both fordomestic companies participating in integration processes, and for evaluators performingwork on the evaluation of relevant intangible assets.The article analyses the definition of the term «intellectual capital» and its constituentpart — the «client base» of the enterprise. The author conducted a study of theeconomic and legal tools for defining the «customer base» as an intangible asset of the enterprise.Within the scope of the research, the legislative acts defining the requirementsfor the «customer base» as an object of intellectual property rights, namely commercialsecrets and databases, were analysed. The requirements that the «customer base» mustmeet as an intangible asset within the limits of Ukrainian and international legislation,as well as the peculiarities of accounting and evaluation of the «customer base» of the enterprise,are determined. The author has defined the problems in the issue of scientificsubstantiation at the legislative level of the term «customer base», as well as its definitionas an intangible asset of the enterprise and the object of assessment. The author emphasizesthat this direction of methodical work has an actual trend, with the aim of harmonizingthe provisions of national and international legislation.
{"title":"Client base as an intangible asset","authors":"Larysa Panfiorova","doi":"10.33731/62022.274625","DOIUrl":"https://doi.org/10.33731/62022.274625","url":null,"abstract":"Keywords: intellectual capital, goodwill, customer base, intangible asset, identifiableassets, unidentified assets, database, trade secret \u0000In the article, the author raises questions about one of the important components of the company's intellectual capital, which determines the company's competitiveness — the «customer base». Such an asset,according to domestic legislation, is not recognized as an intangible asset. Internationalstatistics of merger agreements (unification) of companies determine that this asset accountsfor the largest share of the value of the entire agreement. In this regard, theanalysis of the concept of «customer base», the identification of features of accountingand evaluation of the «customer base» for reporting purposes. Moreover, the study of acceptableevaluation methods in practice are tasks that are extremely relevant both fordomestic companies participating in integration processes, and for evaluators performingwork on the evaluation of relevant intangible assets.The article analyses the definition of the term «intellectual capital» and its constituentpart — the «client base» of the enterprise. The author conducted a study of theeconomic and legal tools for defining the «customer base» as an intangible asset of the enterprise.Within the scope of the research, the legislative acts defining the requirementsfor the «customer base» as an object of intellectual property rights, namely commercialsecrets and databases, were analysed. The requirements that the «customer base» mustmeet as an intangible asset within the limits of Ukrainian and international legislation,as well as the peculiarities of accounting and evaluation of the «customer base» of the enterprise,are determined. The author has defined the problems in the issue of scientificsubstantiation at the legislative level of the term «customer base», as well as its definitionas an intangible asset of the enterprise and the object of assessment. The author emphasizesthat this direction of methodical work has an actual trend, with the aim of harmonizingthe provisions of national and international legislation.","PeriodicalId":356184,"journal":{"name":"Theory and Practice of Intellectual Property","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116972162","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Keywords: intellectual property rights, access to treatment, medicines, sexual violence,humanitarian disaster, war, biosafety The article focuses on solving the problems of accessto medicines, medical devices in the realities of wartime by the mechanisms of intellectualproperty rights to ensure the biosecurity of the state. As of today, part of the south andeast of Ukraine is under temporary occupation, where war crimes, in particular (sexualviolence/rape) are committed. A victim of sexual violence may need emergency medicalcare for fractures, soft tissue injuries and other injuries, but also needs means of preventingsexually transmitted infections. Committed war crimes: sexual violence, poses agreat danger to the biological security of the country. The provision of medical care andaccess to prevention methods for sexually transmitted infections, hepatitis B and HIV,pregnancy prevention, are all threats to biosecurity, which will lead to the spread of infectiousdiseases and HIV. Ukraine, as a member of the TRIPS Agreement, aiming to treat or provide preventionto a larger number of victims of sexual violence, in accordance with Article 39(3) of theTRIPS Agreement, has legal opportunities to ensure the right to life and health of victims,and therefore to provide access to treatment for post-exposure prophylaxis of HIV,prevention of pregnancy, prevention of sexually transmitted diseases through the mechanismof intellectual property rights, namely to increase the availability of generic antiretroviraldrugs in accordance with the requirements of the TRIPS Agreement. Intellectual property rights play an important role in times of war in expanding accessto medicines and medical devices. It is significant to emphasize the importance andtimeliness of applying the mechanisms of limitation of intellectual property rights tosave people's health, as war is one of the factors that allows a TRIPS Agreement Memberto use Article 73. Article 73 of the TRIPS Agreement provides for security exceptions thatMember States may invoke to defend their non-compliance with the TRIPS Agreement.This provision is unique in the context of international intellectual property law. The applicationof such mechanisms will allow the state to treat more people who need immediateprevention and treatment. In our opinion, the application of this provision means theapplication of the security exception to suspend the rights of patent holders to facilitateeither the import or local production of essential medicines and medical devices.
{"title":"Ensuring access to treatment for victims of sexual violence as part of the state biosecurity","authors":"O. Ponomarova","doi":"10.33731/62022.274653","DOIUrl":"https://doi.org/10.33731/62022.274653","url":null,"abstract":"Keywords: intellectual property rights, access to treatment, medicines, sexual violence,humanitarian disaster, war, biosafety \u0000 The article focuses on solving the problems of accessto medicines, medical devices in the realities of wartime by the mechanisms of intellectualproperty rights to ensure the biosecurity of the state. As of today, part of the south andeast of Ukraine is under temporary occupation, where war crimes, in particular (sexualviolence/rape) are committed. A victim of sexual violence may need emergency medicalcare for fractures, soft tissue injuries and other injuries, but also needs means of preventingsexually transmitted infections. Committed war crimes: sexual violence, poses agreat danger to the biological security of the country. The provision of medical care andaccess to prevention methods for sexually transmitted infections, hepatitis B and HIV,pregnancy prevention, are all threats to biosecurity, which will lead to the spread of infectiousdiseases and HIV. Ukraine, as a member of the TRIPS Agreement, aiming to treat or provide preventionto a larger number of victims of sexual violence, in accordance with Article 39(3) of theTRIPS Agreement, has legal opportunities to ensure the right to life and health of victims,and therefore to provide access to treatment for post-exposure prophylaxis of HIV,prevention of pregnancy, prevention of sexually transmitted diseases through the mechanismof intellectual property rights, namely to increase the availability of generic antiretroviraldrugs in accordance with the requirements of the TRIPS Agreement. Intellectual property rights play an important role in times of war in expanding accessto medicines and medical devices. It is significant to emphasize the importance andtimeliness of applying the mechanisms of limitation of intellectual property rights tosave people's health, as war is one of the factors that allows a TRIPS Agreement Memberto use Article 73. Article 73 of the TRIPS Agreement provides for security exceptions thatMember States may invoke to defend their non-compliance with the TRIPS Agreement.This provision is unique in the context of international intellectual property law. The applicationof such mechanisms will allow the state to treat more people who need immediateprevention and treatment. In our opinion, the application of this provision means theapplication of the security exception to suspend the rights of patent holders to facilitateeither the import or local production of essential medicines and medical devices.","PeriodicalId":356184,"journal":{"name":"Theory and Practice of Intellectual Property","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131363518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Keywords: license agreement, unilateral withdrawal from an agreement, copyright,intellectual property The right to the unilateral withdrawal of a license agreement is formulated in Part 2 of Article 1110 ofthe Civil Code of Ukraine in a generalized form, leaving outside the legal regulation anumber of important issues that are significant for the effective application of this provision.In particular, what should be the duration of the delay in the term of beginning theuse of the object of intellectual property rights, whether the licensor should provide thelicensee with an additional term to start using this object, what is the nature of the violationof the terms of the license agreement that allows for a unilateral withdrawal from it,in what form such a withdrawal should be made and from what moment it can be consideredcommitted. These aspects remain almost unexplored which determines the relevanceof their scientific and practical analysis. The purpose of the article is to provide acomprehensive characterization of the right to unilateral withdrawal from a licenseagreement and the mechanism for its implementation on the example of copyright, takinginto account the provisions of the legislation of the EU Member States.Unilateral withdrawal from the license agreement is an extrajudicial procedurewhich is carried out by written notice of the interested party to the other party. Unlikethe laws of many EU member states, the Ukrainian legislation does not specify the durationof the delay in the use of the work by the licensee and does not establish the obligationto grant the licensee an additional term to start using the work, and therefore theparties may regulate these aspects at their own discretion. The absence in the licenseagreement of date or period within which the licensee must start using the work givesthe licensee the right to independently determine the moment of the work’s use and deprivesthe licensor of the opportunity to withdraw from the license agreement on thisbasis. It is substantiated that breach of contract may relate exclusively to the obligationsof a party under a license agreement but not to its rights since the law does not providefor the compulsory exercise of the right to use a work.Based on the experience of the EU Member States, it will be useful for Ukraine to providein Part 2 of Article 1110 of the Civil Code that the general prerequisite for the rightto unilateral withdrawal is the proper and timely performance by the party committingthe withdrawal of its obligations which determine the possibility of performance of theagreement by the other party. This will contribute to the stability of contractual relationsin this area and will prevent potential abuses, in particular, the exercise of the right tounilateral withdrawal from the license agreement in order to harm the interests of theother party. Also, in Part 2 of Article 1110 of the Civil Code, it is advisable to establishthat a unilateral withdrawal from a license agr
{"title":"Unilateral withdrawal from a license agreement","authors":"A. Shtefan","doi":"10.33731/62022.274616","DOIUrl":"https://doi.org/10.33731/62022.274616","url":null,"abstract":"Keywords: license agreement, unilateral withdrawal from an agreement, copyright,intellectual property \u0000The right to the unilateral withdrawal of a license agreement is formulated in Part 2 of Article 1110 ofthe Civil Code of Ukraine in a generalized form, leaving outside the legal regulation anumber of important issues that are significant for the effective application of this provision.In particular, what should be the duration of the delay in the term of beginning theuse of the object of intellectual property rights, whether the licensor should provide thelicensee with an additional term to start using this object, what is the nature of the violationof the terms of the license agreement that allows for a unilateral withdrawal from it,in what form such a withdrawal should be made and from what moment it can be consideredcommitted. These aspects remain almost unexplored which determines the relevanceof their scientific and practical analysis. The purpose of the article is to provide acomprehensive characterization of the right to unilateral withdrawal from a licenseagreement and the mechanism for its implementation on the example of copyright, takinginto account the provisions of the legislation of the EU Member States.Unilateral withdrawal from the license agreement is an extrajudicial procedurewhich is carried out by written notice of the interested party to the other party. Unlikethe laws of many EU member states, the Ukrainian legislation does not specify the durationof the delay in the use of the work by the licensee and does not establish the obligationto grant the licensee an additional term to start using the work, and therefore theparties may regulate these aspects at their own discretion. The absence in the licenseagreement of date or period within which the licensee must start using the work givesthe licensee the right to independently determine the moment of the work’s use and deprivesthe licensor of the opportunity to withdraw from the license agreement on thisbasis. It is substantiated that breach of contract may relate exclusively to the obligationsof a party under a license agreement but not to its rights since the law does not providefor the compulsory exercise of the right to use a work.Based on the experience of the EU Member States, it will be useful for Ukraine to providein Part 2 of Article 1110 of the Civil Code that the general prerequisite for the rightto unilateral withdrawal is the proper and timely performance by the party committingthe withdrawal of its obligations which determine the possibility of performance of theagreement by the other party. This will contribute to the stability of contractual relationsin this area and will prevent potential abuses, in particular, the exercise of the right tounilateral withdrawal from the license agreement in order to harm the interests of theother party. Also, in Part 2 of Article 1110 of the Civil Code, it is advisable to establishthat a unilateral withdrawal from a license agr","PeriodicalId":356184,"journal":{"name":"Theory and Practice of Intellectual Property","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117055230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Keywords: protection of intellectual property, researcher, international scientific cooperation,research, work abroad The practice of universities and scientific organizations in the EU, the USA, the documents ofthe EU Framework Programs for Research and Innovation, WIPO on the regulation ofintellectual property rights on inventions and other objects used or created by a researchertemporarily working in another scientific organization or university, includingabroad is considered. It is noted that, as a rule, institutions apply two approaches: determiningthe specifics of the researcher's stay in the partner institution in the cooperationagreement. And also, in the case of individual grants, scholarships, the definition of theterms of settlement of IP rights in the IP policy of the institution and the contract withthe researcher. In cooperation agreements, it is essential to define the background IPused during research, as well as the conditions for acquiring rights to foreground IP, includingthose created jointly by the parties.In the case of individual grants, scholarships, it is relevant to determine whether duringthe research it is intended to use background IP, the rights to which belong to the researcher'sinstitution. If so, this provides for the need to conclude an agreement betweenthe host institution and the institution of the researcher on the use of the background.Depending on the degree of use of background IP by the institutions of the researcherand the financial contribution or provision of equipment at the host institution, the issueof distribution of IP rights to foreground IP should be envisaged in such an agreement.In the case of the researcher's obligations to preserve confidential information abouthis institution, the host institution must make sure that such confidential information isnot used when conducting research. In the event that such use may be necessary, thehost institution and the researcher institution should enter into a non-disclosure agreement.The article provides recommendations of the Center for Intellectual Property Studiesand Technology Transfer of the National Academy of Sciences of Ukraine regarding thesettlement of IP protection issues in various options for a researcher, visiting foreign scientificinstitution (university). Academic mobility provided for by Ukrainian legislationcan also be a tool for the settlement of these issues, with the possibility of regulation of IPissues in agreement between partner institutions and contract with the researcher.
{"title":"Intellectual property rights to the research results of a Ukrainian scientist working abroad and foreign scientists, working in Ukraine","authors":"Y. Kapitsa, D. Makhnovskyi, Karyna Shakhbazian","doi":"10.33731/62022.274613","DOIUrl":"https://doi.org/10.33731/62022.274613","url":null,"abstract":"Keywords: protection of intellectual property, researcher, international scientific cooperation,research, work abroad \u0000The practice of universities and scientific organizations in the EU, the USA, the documents ofthe EU Framework Programs for Research and Innovation, WIPO on the regulation ofintellectual property rights on inventions and other objects used or created by a researchertemporarily working in another scientific organization or university, includingabroad is considered. It is noted that, as a rule, institutions apply two approaches: determiningthe specifics of the researcher's stay in the partner institution in the cooperationagreement. And also, in the case of individual grants, scholarships, the definition of theterms of settlement of IP rights in the IP policy of the institution and the contract withthe researcher. In cooperation agreements, it is essential to define the background IPused during research, as well as the conditions for acquiring rights to foreground IP, includingthose created jointly by the parties.In the case of individual grants, scholarships, it is relevant to determine whether duringthe research it is intended to use background IP, the rights to which belong to the researcher'sinstitution. If so, this provides for the need to conclude an agreement betweenthe host institution and the institution of the researcher on the use of the background.Depending on the degree of use of background IP by the institutions of the researcherand the financial contribution or provision of equipment at the host institution, the issueof distribution of IP rights to foreground IP should be envisaged in such an agreement.In the case of the researcher's obligations to preserve confidential information abouthis institution, the host institution must make sure that such confidential information isnot used when conducting research. In the event that such use may be necessary, thehost institution and the researcher institution should enter into a non-disclosure agreement.The article provides recommendations of the Center for Intellectual Property Studiesand Technology Transfer of the National Academy of Sciences of Ukraine regarding thesettlement of IP protection issues in various options for a researcher, visiting foreign scientificinstitution (university). Academic mobility provided for by Ukrainian legislationcan also be a tool for the settlement of these issues, with the possibility of regulation of IPissues in agreement between partner institutions and contract with the researcher.","PeriodicalId":356184,"journal":{"name":"Theory and Practice of Intellectual Property","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134439514","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Keywords: intellectual property, order, normative legal act, subordinate normativelegal act, systematization, industrial property The article substantiates the expediency of systematizing not only legislative acts,but also bylaws and regulations, in particular orders.Based on the analysis of orders in the field of industrial property, the author establishedthat:1) most of the orders were adopted in 2001-2002, most of the latest changes to theorders were adopted in 2011. The vast majority of orders do not comply with theprovisions of current laws of Ukraine in the field of industrial property and do notconsider the requirements of EU legislation and the Association Agreement 2) the instruction on the procedure for issuing a Ukrainian patent for an inventionprotected by a USSR copyright certificate has lost its relevance, the deadline forsubmitting applications for a Ukrainian patent for an invention protected by aUSSR certificate has expired. Considering the indication, the author proposes torecognize this order as invalid;3) in 2005, a partial systematization took place, namely the consolidation of the ordersrelated to the inspection of any person with the materials of an applicationfor an object of intellectual property rights. The result of such consolidation wasthe adoption of one order of the Ministry of Education and Science of Ukraine,which combined 4 orders with a similar subject of legal regulation;4) currently, 26 orders are in force in the industrial sphere of ownership, 13 of whichrelate to the maintenance of state registers in this field. To unify the requirementsfor maintaining these registers and optimize law enforcement, the authorproposes to develop and adopt a single order on the Procedure for maintainingstate registers in the field of industrial property.
{"title":"Systematization of orders in the field of industrial property","authors":"Olena Tverezenko","doi":"10.33731/62022.274618","DOIUrl":"https://doi.org/10.33731/62022.274618","url":null,"abstract":"Keywords: intellectual property, order, normative legal act, subordinate normativelegal act, systematization, industrial property \u0000The article substantiates the expediency of systematizing not only legislative acts,but also bylaws and regulations, in particular orders.Based on the analysis of orders in the field of industrial property, the author establishedthat:1) most of the orders were adopted in 2001-2002, most of the latest changes to theorders were adopted in 2011. The vast majority of orders do not comply with theprovisions of current laws of Ukraine in the field of industrial property and do notconsider the requirements of EU legislation and the Association Agreement \u00002) the instruction on the procedure for issuing a Ukrainian patent for an inventionprotected by a USSR copyright certificate has lost its relevance, the deadline forsubmitting applications for a Ukrainian patent for an invention protected by aUSSR certificate has expired. Considering the indication, the author proposes torecognize this order as invalid;3) in 2005, a partial systematization took place, namely the consolidation of the ordersrelated to the inspection of any person with the materials of an applicationfor an object of intellectual property rights. The result of such consolidation wasthe adoption of one order of the Ministry of Education and Science of Ukraine,which combined 4 orders with a similar subject of legal regulation;4) currently, 26 orders are in force in the industrial sphere of ownership, 13 of whichrelate to the maintenance of state registers in this field. To unify the requirementsfor maintaining these registers and optimize law enforcement, the authorproposes to develop and adopt a single order on the Procedure for maintainingstate registers in the field of industrial property.","PeriodicalId":356184,"journal":{"name":"Theory and Practice of Intellectual Property","volume":"255 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114347716","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Keywords: trademarks in the pharmaceutical industry, trademarks ownershipviolations, trademarks protection, case law, trademarks protection cases, invalidationof the trade mark certificate, early termination of the certificate The relevance of this article is that the largest number of legal disputes in the sphere of intellectual property are disputes concerning violation of property rights for trademarks. At the same time, in economicproceedings, part of the court cases on the protection of trademark rights in the pharmaceutical industry represents about 40% of the total number of court cases on the protection of rights to trademarks. The article studies theoretical provisions of protection of trademark rights in the field of pharmaceuticals, as well as practical issues of violations of these rights. Special attention is paid to the analysis of court practice of protection of trademark rights in the field of pharmaceuticals. It has been found that the overwhelming number of cases investigated concerns recognition of the Ukrainian trademark certificateas invalid. The analysis of judicial practice made it possible to establish the following statistical data in economic proceedings: cases of invalidation of a trademark certificate are 70%; cases on termination of infringement of rights to the trademark are 12%; cases on early termination of the trademark certificate are 15%; other cases on protection of rights to trademarks make 5%. The article details the legal requirements for each category of court cases. What additional claims are submitted for each category of court cases. The case law analysis revealed that courts for the protection of trademark rights in the pharmaceutical industry are most often sued for declaring the Ukraine trademark invalid in whole or in part and for an obligation to act. In addition, it was found that 70 percent of trademark cases in the pharmaceutical industry resulted in a full or partial award. In civil proceedings it is almost 90 percent. Thus, litigation is a very effective way of protecting trademark rights in the pharmaceutical industry.
{"title":"Protection of trademark property rights in pharmaceuticals. Analysis of judicial practice","authors":"Nataliia Minchenko","doi":"10.33731/62022.274635","DOIUrl":"https://doi.org/10.33731/62022.274635","url":null,"abstract":"Keywords: trademarks in the pharmaceutical industry, trademarks ownershipviolations, trademarks protection, case law, trademarks protection cases, invalidationof the trade mark certificate, early termination of the certificate \u0000 The relevance of this article is that the largest number of legal disputes in the sphere of intellectual property are disputes concerning violation of property rights for trademarks. At the same time, in economicproceedings, part of the court cases on the protection of trademark rights in the pharmaceutical industry represents about 40% of the total number of court cases on the protection of rights to trademarks. The article studies theoretical provisions of protection of trademark rights in the field of pharmaceuticals, as well as practical issues of violations of these rights. Special attention is paid to the analysis of court practice of protection of trademark rights in the field of pharmaceuticals. It has been found that the overwhelming number of cases investigated concerns recognition of the Ukrainian trademark certificateas invalid. The analysis of judicial practice made it possible to establish the following statistical data in economic proceedings: cases of invalidation of a trademark certificate are 70%; cases on termination of infringement of rights to the trademark are 12%; cases on early termination of the trademark certificate are 15%; other cases on protection of rights to trademarks make 5%. The article details the legal requirements for each category of court cases. What additional claims are submitted for each category of court cases. \u0000 The case law analysis revealed that courts for the protection of trademark rights in the pharmaceutical industry are most often sued for declaring the Ukraine trademark invalid in whole or in part and for an obligation to act. In addition, it was found that 70 percent of trademark cases in the pharmaceutical industry resulted in a full or partial award. In civil proceedings it is almost 90 percent. Thus, litigation is a very effective way of protecting trademark rights in the pharmaceutical industry.","PeriodicalId":356184,"journal":{"name":"Theory and Practice of Intellectual Property","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124882958","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Keywords: intellectual property law, codification, EU, civil procedure, civil law,CPC of Estonia The scientific article examines the peculiarities of the civil proceduralorder for the protection of law in Estonia. Attention is paid to the genesis of modernEstonian civil justice, the peculiarities of some civil legal procedures for considerationand resolution of civil cases are established. It is concluded that all civillegal disputes are resolved according to the rules of civil proceedings, includingdisputes about the protection of intellectual property rights and the protection ofownership rights to immovable property. Instead, there are exceptions — these aredisputes related to European patents, which are resolved in accordance with theAgreement on the Unified European Patent Court. This approach is fully in linewith the pan-European digitalization strategy. Attention is also paid to the implementationof European legal standards in civil justice in Estonia. Thus, it is indicatedthat Estonian courts must follow the relevant practice of the European Courtof Human Rights when deciding civil cases. In Estonia, the Supreme Court canturn to the European Court of Human Rights for an advisory decision on the application,interpretation, and interpretation of the law guaranteed by the Conventionon the Protection of Human Rights and Fundamental Freedoms. Moreover, theparticipants in the legal process, in case of disagreement with the decision of theEstonian courts, including the Supreme Court of Estonia, have the right to appealto the European Court of Human Rights and the Court of Justice of the EU. It is stated that in the Estonian civil process there is a special procedure for the collectionof evidence in accordance with the requests of the EU member states to Estonia.Based on the research, theoretical conclusions and recommendations of relativelyeffective ways of updating (unification, codification) Ukrainian legislationwere formulated, in particular in the aspect of its adaptation to EU legislation.
{"title":"Some aspects of judicial protection of civil legal relations in Estonia","authors":"A. Shabalin","doi":"10.33731/62022.274648","DOIUrl":"https://doi.org/10.33731/62022.274648","url":null,"abstract":"Keywords: intellectual property law, codification, EU, civil procedure, civil law,CPC of Estonia \u0000The scientific article examines the peculiarities of the civil proceduralorder for the protection of law in Estonia. Attention is paid to the genesis of modernEstonian civil justice, the peculiarities of some civil legal procedures for considerationand resolution of civil cases are established. It is concluded that all civillegal disputes are resolved according to the rules of civil proceedings, includingdisputes about the protection of intellectual property rights and the protection ofownership rights to immovable property. Instead, there are exceptions — these aredisputes related to European patents, which are resolved in accordance with theAgreement on the Unified European Patent Court. This approach is fully in linewith the pan-European digitalization strategy. Attention is also paid to the implementationof European legal standards in civil justice in Estonia. Thus, it is indicatedthat Estonian courts must follow the relevant practice of the European Courtof Human Rights when deciding civil cases. In Estonia, the Supreme Court canturn to the European Court of Human Rights for an advisory decision on the application,interpretation, and interpretation of the law guaranteed by the Conventionon the Protection of Human Rights and Fundamental Freedoms. Moreover, theparticipants in the legal process, in case of disagreement with the decision of theEstonian courts, including the Supreme Court of Estonia, have the right to appealto the European Court of Human Rights and the Court of Justice of the EU. It is stated that in the Estonian civil process there is a special procedure for the collectionof evidence in accordance with the requests of the EU member states to Estonia.Based on the research, theoretical conclusions and recommendations of relativelyeffective ways of updating (unification, codification) Ukrainian legislationwere formulated, in particular in the aspect of its adaptation to EU legislation.","PeriodicalId":356184,"journal":{"name":"Theory and Practice of Intellectual Property","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122861759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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