FEATURES OF THE LEGAL STATUS OF THE STATE AS A SUBJECT OF INTELLECTUAL PROPERTY RIGHTS IN SECRET INVENTIONS AND UTILITY MODELS
Journal Title: Юридичний науковий електронний журнал - Year 2016, Vol 4, Issue
Abstract
The cases of state recognition of the subject of intellectual property rights on secret inventions and utility models are analyzed in the article. The rights and obligations of the state as a subject of rights are described in detail. Particular attention is paid by the author to restrict the disposal of intellectual property rights related to ensuring preservation of state secrets. Fundamental scientific and theoretical analysis of the current legislation gave to the author the opportunity to reveal its contradictions and imperfections, and propose ways of elimination them. In particular, it was found that by the general principles of civil law of Ukraine the intellectual property rights acquired by the entities, namely individuals and legal entities. However, in some cases, the subject of intellectual property rights may become a state. So in the process of funding from the state budget proprietary intellectual property rights obtained in the scientific research and experimental design activity results belong to executors under contracts, and in the case if the technology and/or its components are classified as the state secret, the property rights are transferred to the state. The practice of foreign countries is shows that the status of secret inventions become the inventions, but the author defends the position of the need to maintain national legislation that allow to obtain patents for secret inventions and secret utility models. According to the national legislation owner of the patent for a secret invention (utility model) has the right to appropriate state expert the proposal to declassification the invention (utility model) or the change of the degree of secrecy. In this connection, the author notices in the case of declassification of the invention or utility model the right to file an application for a patent (declarative patent) for an invention for a period remaining until the end of the patent (declarative patent) for a secret invention or a declarative patent for a secret utility model has to give to executors who performed the research and development funding for the state budget. The author argues the need of legislative provision the case if the patent owner is the state represented by a particular government agency it has to be authorized by the state expert on secrets to define the range of entities that have access to sensitive facilities. According to the norms of patent law of Ukraine owner of the patent for a secret invention or a declarative patent for a secret utility model has the right to obtain from a public body established by the Cabinet of Ministers of Ukraine monetary compensation to cover the costs for the payment of duties under this Act. In opinion of the author, the rule concerning the right of compensation is irrelevant if the owner of the property rights is the state because to compensate to itself is illogical. So on this occasion the author expresses the proposal of need to make revisions to patent law, which would exclude the indicated illogicality.
Authors and Affiliations
Н. Б. Москалюк
Keywords
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