The Russian Patent System - then and now
Patent law was created and improved by the development of trade relations in which the invention works as a product of a particular kind. With the growth of economic cooperation between countries necessary, legal rules developed requiring a specific approach in the use of the invention and its protection. Patent law has its own, sometimes dramatic, development history which originated in the distant past.
In the first half of the 19th century patent laws were adopted in most European countries, including Russia in 1812. Before that a "privilege" was issued instead of a patent in Russia. For example, M. Lomonosov was in 1752 granted a "privilege" for "making colored glass, beads and other things." In 1833 the law was amended substantially, and in 1870 the "highest authority" was liquidated and "privileges" started to be issued by the estate ministers. Finally, in 1896, a "Bill of privileges for inventions and improvements" was adopted that, together with additions and improvements introduced in 1900 and 1912, was in force until the revolution in 1917. The Act provided for a mixed examination form. Applications for inventions were considered on legal and technical aspects, after which a protection certificate could be issued. Any interested parties had the right to oppose the issuing privileges. The privilege was valid for 15 years, and its validity could be revoked upon opposition.
When a Soviet government was established, drastic changes in the patent law situation occurred. In July 1919 Lenin signed "SNK's regulation concerning inventions," which lay out the grounds for a Soviet patent. Under this Regulation, the right to an invention was regulated by a document entitled an "Author’s certificate", which had the same legal meaning as today's patents. What was new was that the inventor, or author, lost his or her ownership of the invention. Inventions were declared state property, which could be used by anyone without the author's permission. The author was entitled to compensation for the exploitation of the invention, which amounted to 2% of annual economic output.
The socialistic economy was not dependent on competition and a monopoly of state enterprises was common. All this gave rise to the dogmatic Soviet patent law way of thinking that inhibited innovation. Under the prevailing corruption and poor economic stimulus of the inventors, the number of inventions decreased drastically. In order to maintain a high development level, the government sent out predetermined objectives which outlined how many patent applications should be filed during a certain period of time. To promote the ideas, the inventors often included the company’s executives in the list of inventors, which resulted in that over the last decade of the system's existence; nearly half of all the inventors were fraudulent.
Economic restructuring has restored the patent system's role as a necessary part of a market economy. In 1990, the "Law on Inventions in the USSR" was adopted, cancelling author’s certificates and making a patent a sole protection document. The law, however, lost its effect in December 1991 in connection with the dissolution of the USSR.
For nearly a year, there was no legal basis for the protection of intellectual property. In October 1992, Russian patent law was adopted, which has led to major changes not only in the protection status of the document, but also in the regulation of legal relations upon creation and use of inventions, patentability examination and more.
According to the law, a patent for an invention is a protection document issued by Russia's state patent office that confirms the proprietor's rights to the invention. A patent for an invention is valid for 20 years from the date the application is received by the Patent Office, and gives an exclusive right to prevent others from using the invention.
In contrast to the author's certificate, where the applications were prosecuted at the state's expense, the Russian state patent office charges fees for carrying out legal actions during the prosecution of an application.
The Russian patent legislation introduced an examination process for patent applications that is the most common in most developed countries. The examination of the patent application consists of two stages: a formal examination and a substantive examination, wherein the formal examination verifies that the documents meet the formal requirements. The second stage - the substantive examination that checks patentability - may be postponed by the applicant within a time limit specified in the patent law, namely three years from the filing date. The application and the outcome of the formal examination becomes public 18 months after the filing date, with a possibility for an early publication of the applicant's request.
The patent law introduced a new form of protection – a utility model. In its most general sense, the utility model is a small invention, i.e. an invention that meets the criteria of novelty, but has a low level of inventiveness.
The Russian patent law defines a utility model as a "design solution of production means and consumer goods and their components." The definition means that only devices can be protected, primarily mechanical structures and circuits. Utility models provide quick and inexpensive legal protection, which is valid for only 5 years with an option for a three-year extension given the rapid renewal of the consumer market in a competitive environment.
Utility model applications are not subject to substantive examination, which means that utility models are issued within six months from the filing date. The filing fee and the renewal fees for utility models are much lower than for a patent.
Russia's transition to a market economy has fundamentally changed the relationship between the inventor, the state and employers, as reflected in Russian patent law. Modern production is very complicated and knowledge-intensive. Any invention is often preceded by extensive research funded by the employer.
Russian patent law has introduced the concept of an "employee’s invention", i.e. an invention that has been made by the inventor or inventors while performing their duties, which gives the employer the right to obtain a patent for the invention.
Russian patent law also takes into account an employer's lack of interest in employees' inventions. If the employer has not filed an application four months from the time the invention disclosure was submitted, the right to the invention goes to the inventor, who then has the opportunity to file a patent application in his own name.
Russian patent law provides an opportunity to issue patents to both a legal and a natural person under their consent, which must be stated in the application. Any disputes between parties are considered in accordance with the Civil Code of the Russian Federation.
In the Soviet Union only one principle was observed - the exclusive right to an invention belongs to the state, and the concept of a legal entity did not exist, which caused legal confusion and disorder. According to Leninist principles an invention is a possession of the state, which is the owner of thereof. If the invention "lapsed", causing material damage to the state, which is not a legal person, there was no one who was responsible for that damage. Tangible losses from 'lapsed' inventions were significant; rather, they corresponded to the profits obtained by foreign companies that implemented Soviet inventions. It is known that many pioneering Soviet inventions began their life abroad, and then appeared in the Soviet Union in the form of finished products. The economic costs of these losses have never been calculated.