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§ 2. A place of objects of patent rights in system of objects of the civil rights, defined by specificity of their legal regime

The institute of the right of industrial property has appeared rather recently. The establishment of system of patent protection has led to positive consequences both for the inventor, and for all society, as

Promoted not only to fastening of the intellectual rights and stimulation of inventor's activity, but also innovative development of the states and economy strengthening.

In spite of the fact that inventors were at all times, patents and privileges were not known to existing legal systems. In the most developed Roman private law of concept of intellectual property and privileges also were absent.

In slaveholding and rannefeodalnyh the states there was no necessity of encouragement of inventors as all achievements of slaves and vassals and the right to them belonged to their misters.

In later times when there is a formation of a bourgeois system, there is an understanding of necessity to protect the rights of authors of inventions and industrial property [30].

In XVII century there was a scientific and technical revolution, during same time there is a considerable quantity of is natural-scientific and geographical opening, publishing develops. The relation of the state to inventions and inventors radically varies, appears necessity of a legal protection of industrial property.

In 1623 in England the Statute about monopolies has been accepted. Any monopolies appeared in it, except monopolies for inventions void. According to A.Renkelja, the statute about monopolies was the general law under the form and did not specify conditions at which observance protection should be guaranteed [31]. English citizens had the right to demand destruction of the privileges which have been given out on not new inventions. Demand reading and writing delivery on monopoly the inventor could not, even in case of conformity of the invention to all existing criteria. Privileges stood out exclusively at the discretion of the governor.

A.A.Pilenko wrote, that about monopolies it is impossible to consider the Statute as the beginning of chronology of a patent right as it has not rendered any influence and has not brought any new idea in evolution of principles of institute of a patent right [32 [33].

In the end of XVIII century in France there was a revolution in which result on change to feudal privileges in 1791 the patent system of protection of the industrial property comes, based on an obligatory principle. Besides, in Constitutions of some the countries position that exclusive rights of the founder are its natural deaths is fixed.

After France other European countries and Russia pass to an obligatory principle of delivery of patents, thus, to second half XIX century the patent supersedes the privilege. During same time a number patentnopravovyh theories is formed.

Gradually in the legislation of the different countries positions that for patenting of objects of industrial property is necessary that they answered certain criteria are formed, there is a verifying system of qualification of inventions, the mode of office inventions is established and the norms regulating the relations with participation of inventors from others are entered

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The states. Besides, there is a necessity of definition of a place of objects of patent rights for system of objects of the civil rights.

Before to be defined with a place of objects of patent rights in system of objects of the civil rights, it is necessary to understand, that itself represents concept system. In the scientific literature it is possible to meet a considerable quantity of definitions of systems. In each of the offered definitions separate signs and properties of systems are underlined. A question this rather difficult, therefore we will stop on traditional understanding of system as the ordered or natural set which properties are distinct from simple set of its parts.

Let's agree with N.S.Mihajlovoj's opinion, that «it is necessary to understand as system of objects of the civil rights not any transfer of subjects and the phenomena concerning system of civil law, and the necessary expedient, structurally ordered association in which places of components are defined by generalisation of legally significant signs, properties and qualities». [34 [35] [36]

In civil law there are various points of view on classification of objects of the civil rights. Rather difficult classification is offered Century And.

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Vitushko, based on a parity of concept of object with interests of the subject of the legal relations developing concerning such object. E.A.Sukhanov subdivides objects of the civil rights on property and not the property

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The blessings.

Association of all objects of the civil rights in four groups is traditional: property; actions; results of intellectual (creative) activity; the intangible benefits. [37]

In the operating civil legislation there is no definition concept «objects of the civil rights», instead the Russian Federation goes to item 128 GK transfer of their principal views. So, the legislator has carried to objects of the civil rights of a thing, including cash and documentary securities, other property, including non-cash money resources, paperless securities, property rights; results of works and rendering of services; protected results of intellectual activity and the means of an individualization equal to them (intellectual property); the intangible benefits [38]. The specified list is

The settling.

Earlier we had been considered the basic points of view, concerning the maintenance of concept the legal object, therefore to stop on it once again we will not be. However it is necessary to tell some words about what exist for today of the point of view on definition of objects of civil law.

According to the first point of view it is necessary to understand "blessings" as objects of civil law [39]. With this point of view in due time argued F, SHershenevich which considered, that there are no legal blessings which correspond to narrow-minded understanding of the blessing. Meanwhile the object of civil law is that in economic sense [40].

According to Sukhanov E. A [41], Magazinera J. M can act as [42] object of civil matter only actual behaviour of the participant of such legal relation. However, such statement, in our opinion, is not absolutely correct, as there is a replacement of object by the subject that contradicts sense of the civil matter which structure includes both the subject, and object, and the maintenance.

For today popular there is an approach according to which as object of civil law the legal regime of such categories as property, works acts, services, results of intellectual activity, the intangible benefits [43]. We Will disagree with the specified approach. Despite the fact that circumstance, that any object of civil law possesses a certain legal regime, an establishment of such mode not probably until the object will not fall under signs obektnosti about which it will be told more low. In spite of the fact that the legal regime also is established concerning objects of the civil rights and is one of its signs, its establishment is not possible without an establishment of other signs. That is, the legal regime appears a little bit later, rather than other signs. Meanwhile, a turn of objects of the civil rights and an establishment of their protection it is impossible without preliminary fastening of a legal regime. Thus, it is possible to allocate three stages of transformation of object in object of the civil rights. At the first stage there is an object allocated with four signs obektnosti (step-type behaviour, satisfaction of requirements of carriers of rights, value, sistemnost). At the second stage concerning it in the legislation the legal regime is established. At the third stage (under condition of observance of first two stages) in the relation of object of the civil rights there is a possibility of their introduction in a turn and protection by norms of the civil legislation.

There is also a package approach to object of civil law according to which the object represents the certain blessings in which occasion subjects enter among themselves relations [44]. Accepting the point of view And. P.Sergeeva and other authors, we will understand as object of the civil rights the material and spiritual blessings, in which occasion subjects of the civil

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The rights enter among themselves legal relations. Objects of patent rights are objects of the civil rights and their legal regime, and also turn conditions submit to the special rules established by the legislation.

In the list of objects of the civil rights objects of patent rights are specified on the second place. It is caused by that they are less widespread, rather than things. However, in the modern world tendencies of growth of number of such objects are observed.

Objects of patent rights as one of intellectual property kinds occupy median position between other objects of the civil rights. We will reveal in what it it is shown, having compared objects of patent rights, as one of intellectual property kinds (hence, leaning against features inherent in specified group), with other objects of the civil rights.

V.V. Equal allocates following general features of objects of patent rights and other results of intellectual activity and the means of an individualization equal to them:

«- The relations arising concerning all results of intellectual activity and individualization means have the general lines, and grazhdanskopravovoe regulation of such relations and a civil-law mode of objects of intellectual property will have the general approaches;

- The relations arising concerning specified objects are personal non-property relations;

- All objects of the intellectual rights will have a special legal regime;

- Such objects are always ideal, individual and carry on itself «the press of the person» »[45].

As discriminating features of objects of patent rights have been considered by us in the first paragraph, we consider admissible transition to comparison of objects of patent rights, as to one of objects of intellectual property, with other objects of the civil rights.

Since that moment as to jurisprudence became categories "intellectual property" are known, «results of intellectual activity», "industrial property", in the right have begun long discussions about a parity of the specified objects with known since times of the Roman Law things.

According to B.S.Antimonova, E.A.Flejshits legal regulation of the relations connected with inventions, starts to be formed in formation capitalist industrial and a mechanical production [46 [47]. Development of capitalist manufacture demanded transformation of inventions in

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The goods to which could dispose of absolute image. In 1791 in France there is an industrial property theory in which basis the concept has laid down proprietarnaja. The given theory has received the greatest popularity in scientific community. According to its positions the right of the inventor and the property right are identified. The intellectual property is actually equated by the legal nature to things. Division of things on corporal and not corporal was known still to the Roman Law so Guy in the works said that «Tangible propert - what can be perceived... Incorporeal things - what cannot be perceived: such are those things which consist of the right, are the rights» [48]. Such relation of the Roman lawyers to things was generated under the influence of Platon and Aristotle's philosophy.

A.A.Pilenko in the work criticised the specified theory, considering, that it has for a long time detained scientifically-independent working out of a patent right [49].

The industrial property theory was criticised by V.A.Dozortsev. Comparing exclusive rights with the property right and other real rights representing the classical absolute powers, it has visually shown their distinctions on character of competences entering into them, on ways of acquisition, realisation, protection, etc. Leaning on works of classics of domestic civil law, it has come to a conclusion that the intellectual rights concern special group of the absolute powers which are not concerning to real [50].

proprietarnaja the concept of exclusive rights repeatedly was exposed to criticism in I.A.Zenin's works [51].

Analyzing told, it is possible to allocate a number of lacks of the theory of industrial property, among which: a postulate on an accessory of idea to the author as real property, absence at the inventor of any advantages on protection of the idea.

It is necessary to establish that fact, that the industrial property theory has considerably affected on formation and development of a science of a patent right. In occurrence of the given theory people had no representation about the "industrial property" nature, ways of its protection and protection. Norms of the Roman Law about the property began to be applied to new legal relations of intellectual property. Subsequently the most part of originally formulated positions has died off, however the term "industrial property" which was understood as the right to the invention, useful model and the industrial sample, is applied to this day in the scientific literature, acts and legal practice.

Meanwhile, objects of patent rights in bolshej degrees differ from things, rather than have similarity to them, however both those and others have grazhdanskopravovuju the nature and fall under sphere of civil-law regulation.

Objects of patent rights are not corporal. Not corporal character of the object which is coming under to legal regulation defines unfitness concerning it norms of the civil legislation on the property right. [52]

Objects of patent rights unlike things which can be subdivided on individually defined and patrimonial, are always individually certain. So, it is impossible to patent object which has no accurate characteristics specified in the formula. Razmytost such characteristics will lead to that there will be no their appropriate protection.

Objects of patent rights exist in sphere of the personal non-property relations connected with property, while a thing exist exclusively in sphere of property relations.

Things have the cost nature, objects of patent rights are deprived the economic maintenance, have no property nature, do not come under to an exact property (monetary) estimation [53]. It is caused by that it is impossible to estimate commodity cost of objects of patent rights precisely. Meanwhile use of object of patent rights has cost character. Hence, the ideal object of patent rights inseparable from the person of the author who has created him, and the right to it is on sale not.

The ideal nature of objects of patent rights is expressed that they represent itself as certain systems of scientific or technical concepts or categories [54].

Transfer of the exclusive right to object of patent rights occurs by means of various legal designs (the contract on alienation, the licence, the contract of commercial concession, the contract of confidential management, pledge, etc.).

All objects of patent rights come under to obligatory state registration and entering of data on them in the corresponding register. Without passage of the specified procedure, the object cannot be recognised by patentable in a statutory order. Accordingly it does not become object of patent rights and does not fall under the legal regime established by the legislator.

Unlike objects of patent rights not all things come under to the state registration but only their some categories, for example, the real estate, the medical equipment, the weapon, etc. Frequently, necessity for the state registration and inclusion for the corresponding register is established for things limited in a turn or withdrawn of a turn.

Both concerning things, and concerning objects of the intellectual rights there are absolute powers, in the first case - real rights, in the second - exclusive rights.

Under the general rule, things serve as a result first of all physical work of the person, and objects of patent rights - grow out of brainwork in the field of a science, technics, biotechnology and art designing. Physical work only promotes giving to ideal result of brainwork of the material objective form [55]. Thus it is important to consider that fact, what not any cerebration will be the catalyst of creation of objects of patent rights, but only activity spiritual, coming to an end with creation of the ideal object possessing individual characteristics, answering to the established criteria ohranosposobnosti. In such activity degree of influence of the author which postpones the unique, exclusive print for the final substantiated result should be traced obviously.

Thus, objects of patent rights and a thing carry grazhdanskopravovuju the nature, the rights to the specified objects of the civil rights are absolute.

Also along with things exclusive rights to objects of patent rights can serve as the contribution to the charter capital of economic associations and societies, and also to be a component of non-material actives of legal bodies.

Comparing objects of patent rights and other non-material objects, it is necessary to draw a conclusion, as those and others have no natural form, hence, are not subject to deterioration, i.e. Amortisation. However unlike other intangible benefits they can become outdated morally in connection with nauchnotehnicheskim progress. It would be absurd to believe, that the intangible benefits can become outdated. So a life, health, honour, advantage - categories eternal, not becoming outdated, especially valuable. Objects of patent rights, becoming outdated morally, quickly enough come in the stead each other. That object which is the present scientific break can be late only, considerably advances already known «technics level» and on time is long remains "is inaccessible" to studying by other scientist.

Both objects of patent rights, and the intangible benefits do not come under to an exact property estimation.

Objects of patent rights differ from the intangible benefits that have especially civil-law nature. Thus exclusive rights to them participate in the civil circulation, and it is regulated by norms of a liability law [56]. The Intangible benefits have no civil-law nature, the rights to them are outside of the civil circulation, data on them have declarative character, fall under guarding function of civil law as relations concerning their protection arise only in reply to their infringement.

All without an exception objects of the civil rights fall under actions of general provisions of the civil legislation: about subjects of the rights to such objects, about limitation of actions, general provisions on the obligations, some positions on separate kinds of obligations, etc.

Speaking about unity of objects of the civil rights a number of authors comes to conclusion, that the sense of the specified category consists in an establishment for them a certain civil-law mode, i.e. Possibility or impossibility of fulfilment with them the certain actions (transactions) attracting known legal (civil-law) result [57].

With a view of differentiation of objects of the civil rights, the legislator establishes rules about a regulation of various kinds of the rights: real, exclusive, obligations. Norms of a part of the fourth G razhdanskogo the code of the Russian Federation, in particular chapter 72 are devoted directly objects of patent rights.

For revealing of the general properties of objects of the civil rights it suggested to take advantage of criteria which would allow to come nearer to uniform definition for them. V.A.Lapach allocates following general properties (signs) of objects: step-type behaviour, a legal binding and sistemnost [58 [59]. We will consider them more in detail.

The author understands as step-type behaviour qualitative, and also physical and-or registration definiteness and isolation of separately taken object of the civil rights from all other objects. «This sign is universal and it is shown as on separate kinds of objects of the civil rights, and at empirical level. Spatial isolation of objects represents only private, though also the most widespread case of step-type behaviour characterising on advantage of a thing. But in many cases of only one spatial isolation insufficiently, it is required also isolation of object by means of those or other receptions and ways qualitative

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The analysis and-or the account with reference to a certain subject domain ». The given description of step-type behaviour is applicable only to things, but not to ideal objects of patent rights. Here step-type behaviour is defined by substantial characteristics of object and registration-registration procedures.

«The legal binding» is understood as the guaranteed possibility of legal fastening of objects for subjects of civil law [60]. In our opinion, this position is not applicable to intellectual property, and in particular to objects of patent rights, owing to their ideal nature. Such objects are inseparable from the person of the author any legal rules. Certainly, the exclusive right can be transferred in a statutory order. But the information on such object, once become known to other person, never can already belong completely to one only to the author (patentee).

It is represented, that taking into account features of objects of patent rights and other results of intellectual activity, would be more correct to designate second sign, as «a regulation of a legal regime of objects of the civil rights norms of civil law».

As it has already been told, all objects of the civil rights come within the purview of general provisions of the civil legislation, Besides, concerning each object the personified norms directed on a regulation of a legal regime of specified object are established. With reference to objects of patent rights such norms to contain regarding the fourth G razhdanskogo the code of the Russian Federation.

All objects of the civil rights are directed on satisfaction of requirements of the carrier of rights. Objects of patent rights are not an exception. According to O.A.Gorodova: «the specified results are the intangible benefits existing in the form of systematised logic data (concepts) which possess ability to be put in a causal relationship with satisfaction technical, industrial or aesthetic requirements». [61] Such sign of objects of the civil rights it is possible to formulate as «satisfaction of requirements of carriers of rights.

Besides, all objects of civil law have value. If we speak about material objects they have the material assets caused by their cost estimation. All non-material objects of civil law (in particular, objects of patent rights) have value spiritual, and «constitute basis of human and social life» [62].

The category "value" is widely used in the philosophical and sociological literature for instructions on human, social and cultural value of the certain phenomena of the validity [63].

Value is characterised as one of «the cores conceptual universaly the philosophies, meaning in the general view neverbalizuemye,"atomic"components most a deep layer of all intentsionalnoj structures of the person — in unity of subjects of its aspirations (aspect of the future), special experience-possession (aspect of the present) and storage of"property"in heart hiding places (aspect of the past), — which konstituirujut its internal

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The world as «unikalnosubektivnoe life» ».

As objects of the valuable relation all variety of objects of the civil rights, both material, and non-material, in essence, can act. Value can have economic character (for material objects) then its estimation will be made by means of goods turnover realisation.

Representatives of the Austrian school consider, that value — value which quantities of the concrete goods or the blessings for satisfaction of requirements of the person have. The more the person dependence on object presence, the above its value will confess. The value phenomenon occurs from this a source, as economic character of the blessings, i.e. from mutual relation between need and quantity. The blessings which are available in unlimited quantity (air, water etc.), that is not economic blessings, have no value. And only the blessings which are available in smaller quantity, than it is necessary for satisfaction of human requirements, represent value [64].

Not pressing in philosophical aspect of a problem of definition of value and values, we will tell only, that such understanding of value is applicable exclusively to material benefits. Value of non-material objects of civil law in all their variety is defined as the relation of the subject to such object, and through the importance of the given object for a society. There is absolute cultural wealth which the blessings undoubtedly concern. Results of intellectual activity though are ideal by the nature, but, it is represented, that their spiritual value is relative. It, in our opinion, is caused by a number of circumstances.

First, if we speak about objects of patent rights, the important role will be played by conformity to their yardsticks of invention. If such conformity is absent, social spiritual value at them, as at corresponding objects, no. However it does not prevent to highly appreciate idea of the author.

It is represented, that it is possible to carry their scientific value, value to a category of spiritual value of objects of patent rights aesthetic, beauty, conformity to norms of morals, humanity, etc.

Value estimations can be shkalirovannymi. In that case for objects various levels of corresponding quality will be established.

Sistemnost V.A.Lapachom as third sign of objects of the civil rights is defined. The essence of the specified sign follows from the maintenance of first two signs. Being based on a sign sistemnosti, the author understands as objects of the civil rights structurally-ordered system whole, possessing own quality and relative independence (stability) in relation to parts constituting it [65].

It is represented, that sistemnostju objects of the civil rights it is necessary to understand structural orderliness of such objects possessing own quality, relative independence (stability) in relation to separate objects of the civil rights satisfying subjective requirements of carriers of rights.

Proceeding from stated earlier, we will formulate the general features of objects of patent rights and other objects of the civil rights:

- Step-type behaviour;

- sistemnost objects of the civil rights;

- Value;

- Satisfaction of requirements of carriers of rights;

- Fastening of a legal regime of objects by norms of the civil legislation.

And it is necessary to pay special attention on that fact, that initially the object should correspond to first four signs, then norms of the civil legislation fix its legal regime then subjects can enter concerning it legal relations.

Thus, proceeding from the general features, under objects of the civil rights it is necessary to understand material and the intangible benefits representing value for the carrier of rights and directed on satisfaction of its requirements, answering to signs of step-type behaviour and sistemnosti in which relation norms of the civil legislation fix a legal regime and in which occasion subjects of civil law enter among themselves legal relations.

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A source: Bogdanova Tamara Dmitrievna Obekty. of patent rights and their legal regime under the Russian legislation. The dissertation on competition of a scientific degree of the master of laws. Volgograd. 2015

More on topic § 2. A place of objects of patent rights in system of objects of the civil rights, defined by specificity of their legal regime:

  1. § 1. Concept and signs of objects of the patent rights, defining features of their legal regime
  2. Chapter 1. General provisions on objects of patent rights and their legal regime
  3. Chapter 2. The Legal regime of separate kinds of objects of patent rights
  4. § 4. Communication of objects of patent rights with a legal status of their subjects
  5. a place of the inheritance among objects of the civil rights.
  6. § 1. A place of electronic money resources among objects civil The rights
  7. § 3. The general and especial in legal regimes of separate kinds of objects of patent rights
  8. §1.1. Things as objects of the civil rights
  9. concept, essence and a place of uniform technology of system of objects of civil-law regulation
  10. Pilicheva Anna Vladimirovna. MEDICAL PRODUCTS AS OBJECTS of PATENT RIGHTS. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2015, 2015
  11. subjects and objects of representation of the rights and interests of the child under the civil and family legislation of the Russian Federation
  12. the rights of spouses to the material carrier of objects of the intellectual rights
  13. the Chapter I. Legal regulation concerning medical products as objects of patent protection
  14. § 3. Classification of derivative objects of the intellectual rights
  15. § 1. Occurrence of the intellectual rights to derivative objects