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§ 3. The Legal regime of the industrial sample

According to ch. 1 item 1352 GK the Russian Federation it is necessary to understand the protected decision of a product as the industrial sample industrial or kustarnoremeslennogo the manufactures, defining its appearance.

That concerning the industrial sample the special legal regime was established, it is necessary that it corresponded to the general signs obektnosti. We will consider each of them.

Conformity to a step-type behaviour sign reveals for the industrial sample through its substantial characteristics and statutory registration procedure of reception of the patent. Substantial characteristics of the industrial sample include essential signs of the industrial sample and a condition of its patentability.

As as the industrial sample the decision of a product of industrial or domestic manufacture at once we will be reserved, that under a product, within the limits of the present research is protected, we will understand various subjects which, as a rule, have practical appointment.

In this case it is necessary to understand the difficult technological process consisting from proizvodstvennotehnologicheskih of divisions, details engaged in manufacture as industrial production, components, half-finished products by means of specially intended industrial equipment, from initial raw materials, and also the subsequent assemblage and realisation of the finished goods, satisfying to requirements of the market, from made элементов.1

The handicraft work is an individual and small-scale manufacture with use manual труда.2 Craft manufacture is

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Small manual production of industrial products. [202 [203]

Proceeding from the resulted definitions, under domestic manufacture of industrial samples it is necessary to understand individual and small-scale manual production of industrial products.

As the industrial sample can be considered both the whole product, and its parts made and sold separately (which also are considered as products). In the international classification of industrial samples (further - MKPO or Lokarnsky classification) [204] contain svedenja about products which can be considered as industrial samples. Lokarnsky classification consists from: (i) the list of classes and subclasses; (ii) the alphabetic list of names of products in which and industrial samples are consolidated with instructions of classes corresponding to them and subclasses; (iii) explanatory notes. The circle of the products included in it extends with acceptance of each new edition.

Allocate a number of essential signs of the industrial sample which define aesthetic features of appearance of a product, in particular the form, a configuration, an ornament, a combination of colours, lines, product contours, a structure or the invoice of a material of a product. It is represented also, that decorative elements of a surface of products can come under to protection. Thus the signs caused by exclusively technical function of a product, are not protected signs of the industrial sample.

For formation of full detailed representation about appearance of the industrial sample the applicant photos, drawings, including executed by means of a computer drawing, the reproductions executed by different ways can be presented.

From item 1377 GK the Russian Federation, and also from Administrative regulations of execution of Rospatent on the demands acceptance organisation on the industrial sample and their considerations, examination and delivery when due hereunder patents

On the industrial sample [205] it is visible to the Russian Federation, that the demand for the industrial sample that at the expert full detailed representation about appearance of the industrial sample was created should contain. To the demand should be enclosed:

1) a petition with instructions of the author of the industrial sample and the applicant - the person possessing the right to reception of the patent, and also a residence or the location of each of them;

2) the complete set of images of the product giving full representation about essential signs of the industrial sample which define aesthetic features of appearance of a product;

3) a product general view, konfektsionnuju a card if they are necessary for disclosing of essence of the industrial sample;

4) the description of the industrial sample.

Thus, it is not clear how it is possible to describe in the demand, or to reflect in drawings and photos the material invoice. It is represented, that a unique way of perception of the invoice, known from physiological features of the person, this tactile perception. Thus, that the expert had a full impression about essential signs of the industrial sample, it is necessary for it to perceive with own hand samples of a material from which such sample is created.

Hence, it is necessary to add paragraph 5 of item 2 of item 1377 GK the Russian Federation the requirement about granting together with the demand of samples of materials:

«5) the samples of a material giving full representation about the invoice of a material of the industrial sample».

Talking about essential signs, it is necessary to notice, that the industrial sample is one of the most disputable objects of patent rights. All specified signs can belong also and to object of the copyright. Apparently, at carrying out of examination of the industrial sample the expert should consider in each concrete case, whether the declared industrial sample falls under patentno-right protection requirements. Probably, such differentiation should occur proceeding from the purposes of creation of the industrial sample. So, if the object is exclusive, individual, and its repeated reproduction actually is not possible, except as by copying - that such object comes within the purview of norms of the copyright. If, the author (patentee) of the industrial sample pursues the industrial production aims such object falls under norms of the patent legislation.

The right protection is given to the industrial sample if he answers such yardsticks of invention as novelty and originality.

According to norm of item 2 of item 1352 GK the Russian Federation: «the Industrial sample is new if set of its essential signs which have found reflexion on images of appearance of a product, is not known from the data which have become popular in the world before date of a priority of the industrial sample».

From the specified norm it is visible, that the maintenance of yardstick of invention "novelty" is not given by the legislator, and novelty disclosing through set of the essential signs which have not become popular before date of a priority only is supposed.

Thus, it is supposed, that all set of such signs should be the unknown person. Accordingly, at carrying out of examination of the demand all essential signs in the set should be considered. Nevertheless, in practice frequently check of each essential sign is spent separately. It and is clear, as for carrying out of better examination it is necessary to analyse each essential sign, and then to consider them in aggregate, in parallel revealing cleanliness of the patent demand.

Frequently, at check of importance of this or that sign of appearance, the expert is guided by that position, that such sign concerns to essential if it influences formation of this kind. According to V.V. Senkovsky, «set of essential signs is defined by signs, each of which is necessary, and all are together sufficient for creation of a certain vision of a product. Division of signs of appearance of a product on essential and insignificant is not norm of absolute character, and it is considered conditional enough and formal depending on the product, kinds of industrial samples (volume, plane (drawings) and their combinations)» [206].

Proceeding from the specified treatment, all signs of the industrial sample influencing appearance of a product, play a paramount role at definition of criterion of novelty. Meanwhile, besides external signs which can be defined visually, the subject should pay attention as well to those signs which can be defined exclusively "to the touch". So, for the invalid carriages declared as the industrial sample, wheels, etc. a paramount role will have those features which can be apprehended taktilno. [207]

As the second yardstick of invention of the industrial sample originality acts. So, according to positions of the civil legislation «the industrial sample is original if its essential signs are caused by creative character of features of a product, in particular, if from the data which have become popular in the world before date of a priority of the industrial sample, the decision of appearance of a product of the similar appointment, a same general impression making on the informed consumer what is made by the industrial sample who has found reflexion on images of appearance of a product» is not known.

It is represented, that originality is the major indicator of aesthetic properties. Among aesthetic properties traditionally allocate [208]: information-art expressiveness, rationality of the form, integrity of a composition, perfection of industrial performance. Thus, the appearance of a product meeting is art-aesthetic requirements, gets independent economic value and turns to object of legal regulation

As we see, all offered properties can be carried and to objects of design. Then there is a question how to treat criterion "originality". It is represented, that for objects of the copyright, the criterion of originality will be treated through uniqueness and originality. For the industrial sample originality should be treated as something not known earlier, created by creative activity of the author, but thus povtorimoe, coming under to reproduction, whether it be copying, duplicating and different ways.

At an establishment of novelty and originality of the industrial sample it is necessary to consider all demands for the inventions useful to model, industrial samples and demands for the state trade-mark registration, service marks which have a priority and are submitted to the Russian Federation by other persons and with which documents, according to item 1385 item 2, item 1394 item 2, item 1 of item 1493 GK the Russian Federation, have the right to familiarise any person.

The requirement of industrial applicability is not applied to industrial samples. Some authors consider unjustified an exception as the legislator from characteristics of the industrial sample of the specified criterion. [209] specified point of view is given reason by that industrial applicability should be considered as the quality, allowing to use technical decisions in industrial sphere and volume. Absence of the specified criterion «can entail washing out of a side with the results of creative activity concerning objects of copyrights». [210] it is not obviously possible to agree with the resulted opinion as industrial character of the industrial sample reveals through its such property as repeatability, unlike object of the copyright allocated with individual lines, not allowing to reproduce it.

To the second components of step-type behaviour of the industrial sample the establishment concerning it necessity of passage of registration procedure is.

Recently tendencies to increase in number of demands for patenting of industrial samples are abroad observed, especially it is characteristic for the textile industry. It is caused by what get advantage before competitors the manufacturer can by means of patent protection of the innovations. The portfolio of patents which the company has, testifies to its technical superiority. [211 [212] such portfolio can help with attraction of business partners or investors.

Procedure of patenting of industrial samples does not attract the big financial expenses. Protection of the rights on industrial samples is not always interfaced for manufacturers to financial expenses.

In the Russian Federation practice of registration as industrial samples much more poor. So, during the period since 2008 for 2012 it has been registered 18 859 (eighteen thousand eight hundred fifty nine)

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Industrial samples. For comparison, from 2009 for 2013 it has been given out patents for inventions - 159 663 (hundred fifty nine thousand six hundred sixty three) pieces [213], and on useful models it has been given out 56 903 (fifty six thousand nine hundred three) patents [214 [215] [216]. Besides, from 2009 for 2013, quantity of patents given out annually on industrial samples has decreased more than for 1000 pieces in a year. If in 2009 it has been given out 4 766 (four thousand seven hundred sixty six) patents, in 2013 their number has constituted 3 381 (three thousand three hundred eighty one) the patent.

In our opinion, such state of affairs brakes development of light industry and promotes leak of valuable shots abroad. For improvement of the developed position it is necessary to take advantage of practice of some the foreign states on protection of not registered industrial

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Samples.

Unfortunately, in the Russian Federation such procedure is not provided yet. About it it was spoken in point 3.2. Concepts of perfection of Section of VII Civil code of the Russian Federation «the Rights to results of intellectual activity and individualization means»: «the System of protection of the industrial samples, existing in the Russian Federation, essentially differs from the regulation which have developed in the majority of the countries with developed patent systems. It is unattractive for designers as demands the big expenses and poorly protects from fakes. It is necessary to simplify procedure of check of industrial samples on patentability, probably, having refused thus from application of the verbal list of essential signs of the industrial sample and to define volume of a right protection of such samples, first of all, under the image of appearance of a product» [217 [218]. The described approach has found reflexion in new changes in the Civil code of the Russian Federation.

It is represented, that protection of not registered industrial samples is extremely useful to individual businessmen and small enterprises, and also in cases of trial release on the market of several industrial samples of a product for definition of those from them for which registration is expedient.

The right protection of not registered industrial samples operating in EU, allows protection of the industrial sample during the maximum period till three years from date when it became for the first time known in territory of one of 27 member states ЕС2.

Proceeding from stated above, it is offered to add item 1354 with point 4 in which to register: «the Right protection of not registered industrial samples is given within three years from date when it became for the first time known in territory of the Russian Federation». It is represented, that entering of the specified changes into the legislation will promote development of system of a patentno-right protection of industrial samples in the Russian Federation. Besides, even before application will probably reveal industrial samples in advance commercially not claimed and not representing any interest both for the legal owner, and for a society as a whole. It can well affect work of experts.

As well as other objects of patent rights, at industrial samples have a causal relationship with satisfaction requirements of carriers of rights.

It is represented, that in a case with the industrial sample it is paramount it is necessary to allocate two groups of requirements: aesthetic and industrial. So, analyzing norm of the legislation on the basic signs of industrial samples, we come to conclusion, that the greatest value is played here by requirements aesthetic.

Meanwhile, only aesthetic requirements it is not enough satisfaction of one, as otherwise the object satisfying only to such requirements, cannot be considered as object of patent rights, but requirements industrial, as frequently industrial samples are used in industry sphere (in particular light industry it will be carried to a category of objects of the copyright that contradicts the essence of the industrial sample. Hence, along with the specified category of requirements the important place occupy).

Industrial samples, also as inventions, biotechnologies and useful models correspond to criterion of value. The requirement to spiritual value of the industrial sample is expressed by the legislator through the description of essential signs of the industrial sample. In this case spiritual value reveals through aesthetic features of appearance of a product. However, as already it was mentioned earlier, for the industrial sample the essential role will be played by definition of its industrial value.

Speaking about aesthetic value of industrial samples, it is necessary to note, what not each of them has pleasant appearance. Studying as an example appearance of products of the textile industry, the author has come to conclusion, that industrial samples in whom terrible images are used, or images or the inscriptions, not distinguishing by the high moral maintenance in some cases are patented. In item 29 of the Constitution of the Russian Federation it is said that censorship is forbidden. Meanwhile, in the Law from December, 27th 1991 №2124-1 «About mass media» [219] reasonable restrictions of distribution of the information contain. Unfortunately, such restrictions do not extend on industrial samples.

The instructions in paragraph 4 of item 4 of item 1349 GK the Russian Federation that the results of intellectual activity contradicting public interests, to humanity and morals principles, cannot be objects of patent rights, are insufficient. It is offered, at examination carrying out to consider the requirement established by the Federal act from December, 29th, 2010 № 436-FZ «About protection of children against the information harming their health and development» (further: FZ «About protection of children against the information harming their health and development») 1. Otherwise, use and distribution of the products contradicting specified requirements, can be ceased court on the basis of the statement of the federal enforcement authority which is carrying out the state supervision and the control over observance of the legislation of the Russian Federation about protection of children from the information, harming their health and (or) to development. Also, distribution of the specified products can be suspended court with a view of necessity of the security for cost. The patent which has been given out on the industrial sample, contradicting requirements of paragraph 4 of item 4 of item 1349 GK the Russian Federation Is represented, that, and also to norms FZ «About protection of children against the information harming their health and development» should be nullified according to item 1 paragraph 1. Item 1398 GK the Russian Federation. Meanwhile, it is necessary to consider, that the industrial sample harming not only mental and physical health of children, but also adults does not come under to patenting also.

With a view of improvement of quality of carrying out of examination of demands on the industrial sample, and also to execute paragraph 4 of item 4 of item 1349 GK the Russian Federation and norms FZ «About protection of children against the information harming their health and development», is offered to bring additional section in the Management on examination of demands on industrial samples approved by the Rospatent Order

1 Sobr. Legislations of the Russian Federation.

2011. - № 1.

Item 48.

From March, 31st 2009 №48 (red. From 14.01.2014) «About the statement of recommendations concerning examination of demands on industrial samples». [220]

So, before examination carrying out it is necessary to check up conformity of appearance of a product to conditions of humanity, morals and morals. At carrying out of the specified check it is necessary to pay special attention on presence or absence:

- The information harming health, including, to health and (or) to development of children (for example: 1) inducing to fulfilment of the actions representing threat of their life and (or) health: to injury to the health, suicide; 2) capable to cause desire to use narcotics, psychotropic and (or) stupefying substances, tobacco products, alcoholic and spirtosoderzhashchuju production, beer and the drinks made on its basis to take part in gamblings to be engaged in prostitution, vagrancy or begging);

- Information of pornographic character (in understanding of the maintenance of such information, provided in item 8 of item 2 FZ «About protection of children against the information harming their health and development»);

- The information containing naturalistic images or the descriptions (humanities contradicting norms, morals and morals) with attention fixation on details, anatomic details and (or) physiological processes;

- The information containing appeals to physical and mental violence, cruelty, fulfilment of crimes and other antisocial actions, and also justifying fulfilment of the specified actions;

- The information causing fear (including at children), horror or a panic, represented in the form of the image or the description in the form of nonviolent death degrading human advantage, diseases, suicides, accident, failure or accident and (or) their consequences;

- The information denying family values, propagandising nonconventional sexual relations and forming disrespect for members of a family;

- The information containing obscene abuse and abuse, not concerning to obscene (including on a foreign language).

At detection in the declared industrial sample of such information representatives of Rospatent should give refusal in its registration as object of patent rights, as contradicting paragraph 4 of item 4 of item 1349 GK the Russian Federation.

In a case when such object has been patented earlier, it is necessary to nullify judicially the patent for it from the moment of the state registration.

It is represented, that the specified approach to check of demands on the industrial sample (and on other objects of patent rights) will allow to keep mental and physical health of citizens, the public law and order and spiritual, moral, humanistic, etc. society foundations.

Sistemnost industrial samples it is caused by that they take an essential place among results of intellectual activity, and, accordingly, and among other objects of the civil rights. On them general provisions of the civil legislation on objects of civil law also extend. From other objects of the civil rights distinguishes them that, as well as other objects of patent rights, industrial samples come under to obligatory registration and urged to satisfy daily requirements of people and to promote industry development.

The regulation of a legal regime of industrial samples is carried out both the basic norms of the civil legislation, and special provisions of a part of the fourth Civil code of the Russian Federation.

The industrial sample who answering to established criteria and has undergone procedure of registration with granting a patent to the legal owner, becomes high-grade object of the civil rights. Concerning it the legal owner has statutory rights: a right of authorship and the exclusive right.

Thus, the industrial samples corresponding to the general requirements obektnosti, come within the purview of norms of the civil legislation by which concerning them the special legal regime is established.

Starting with logic of the present research, the legal regime of industrial samples is a condition of the industrial samples subjected to legal regulation for the purpose of investment by their properties obektnosti of the right and the subsequent giving of legal characteristics, possibilities to belong to subjects of law (to authors, legal owners), allocated with the statutory rights and duties, on lawful basises (the patent, the licence, the contract) to be capable to use and the order, and also in a statutory order to come under to a right protection.

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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

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