The cases, when a request from the Office for a program for an electronic computing machine and a database can be received
Recently, the registration of a program for an electronic computing machine and a Database in ROSPATENT has become quite popular, despite the fact that, in accordance with Article 1262 of the Civil Code of the Russian Federation, the right holder of the program for the electronic computing machine and the Database may register at his own discretion these subject matters in the Federal Executive Authority on Intellectual Property during the entire period of the exclusive right to them.
Many applicants believe that filing these applications is quite a simple procedure, however, they do not take into account the subtleties that exist at the registration of a full set of the documents for the registration.
Further, we shall analyze various grounds, according to which a request for examination can be sent at the consideration of the application for the state registration of the program for the electronic computing machine or the Database.
To file the application for the state registration of the program for the electronic computing machine or the Database, one should submit the set of the documents that will include: the application, the materials identifying the claimed subject matter and the payment document confirming the payment of the state fee. The specific requirements regarding filling in the documents are lodged to each document.
In practice, the requests in connection with incorrect filling in the application are sent for the following reasons:
– the name of the program for the electronic computing machine or the Database characterizes the subject matter that does not refer to the claimed one. An example of this name is: a portal, an algorithm, a website, a software and hardware appliance. The reason, why the Office does not accept the names of such kind is that the above examples can characterize the solution that is not associated with the program for the electronic computing machine or the Database, i.e. the ones that do not contain a program code or structured materials.
– the applicant’s identifiers are not submitted. In accordance with the requirements of the legislation, when filling in the application, it is necessary to indicate the applicant’s identifiers. For an individual, they are a number and series of the passport, and the SNILS, and for a legal entity, they are the OGRN and the INN. The absence of at least one of them will serve the grounds for sending the request.
– the grounds for the emergence of the right to the registered subject matter are not indicated or they are indicated incorrectly. For example, the applicant of the application is one individual, and the authors are a group of individuals, and the grounds for the emergence of the right to the registered subject matter – “the applicant is an author” – are indicated. In this case, the request will be sent due to the fact that the applicant is one person, but there are several authors, and therefore, there is not a clear idea of how the exclusive rights of the authors have passed to the applicant.
– the date of the creation of the program for the electronic computing machine or the Database being later than the date of the publication is indicated. The rights to any subject matter of the copyright emerge immediately at the moment of the creation, however, the publication of this solution can be made much later, and therefore, the date of the publication must be later than the date of the creation.
– there is a note that the authors are not indicated, but further, the information about them is submitted. It is allowed not to indicate the authors in the application for the registration of the program for the electronic computing machine or the Database, or they do not want to be mentioned at the publication. In the first case, the information about the author should not be indicated. Only their number shall be indicated. If the authors do not want to be mentioned in the publication, the information about them will still be entered in the State Register, but there will be no information about them in the official Bulletin. If there is the note that the authors are not indicated, but the information about them is submitted, then the examiner of the Office has a contradiction as to how it is necessary to display the information about the author in the future.
– the person is indicated, who is not as such on the grounds of the indicated creative contribution. In accordance with Article 1228 of the Civil Code of the Russian Federation, the following shall not be recognized the authors of the result of the intellectual activity: the citizens, who have not made a personal creative contribution in achieving such a result, including those, who have rendered only technical, consulting, organizational or financial support or assistance to its author, or those, who have only assisted in registering the rights to such a result or its use, as well as the citizens, who have exercised supervision over the fulfillment of the corresponding works. Also, in accordance with Article 1259 of the Civil Code of the Russian Federation, the copyrights shall not be extended to ideas, concepts, principles, methods, processes, systems, means, solutions of technical, organizational or other tasks, inventions, facts, programming languages. Accordingly, if one of the above actions is indicated as the author’s creative contribution, the examiner will send the request and ask either to clarify the author’s contribution or to exclude it from the list of the authors.
– a legal entity and not an individual is indicated instead of the author. In accordance with Article 1228 of the Civil Code of the Russian Federation, the citizen, whose creative labour has created such a result shall be recognized the author of the result of the intellectual activity. Thus, the creative labour can emerge only to the individual or the group of individuals. The legal entity does not have such properties.
– the application is signed by an unauthorized person. In accordance with the requirements, the application may be signed by the applicant or his representative based on a power of attorney. If the applicant is the legal entity, the application must be signed by the person, who has the right to perform such actions, and sealed with the organization’s seal, if any.
In addition to the requirements for the registration of the application, it is necessary to take into account that the materials identifying the program for the electronic computing machine or the Database must comply with the particular requirements as well. When registering the materials for the program for the electronic computing machine, it is necessary to take into account that the programming language indicated in the abstract must comply with the language in which the very program submitted to the Office is written. If the indicated information does not comply, the examiner will send the request in order to eliminate the identified discrepancy. In addition, it should be noted that when composing the abstract, one should not indicate the information about both the program for the electronic computing machine and about the Database, due to the fact that each subject matter must be registered separately, and they must not be combined, even if the program for the electronic computing machine is designed to manage the database.
The additional requirements are also lodged to the powers of attorney and the payment documents. When registering the power of attorney, it should be taken into account the fact that it must be notarized, otherwise the application materials may not be accepted by the Office at all. With regard to the payment document, it should be remembered that in accordance with the provisions of the tax legislation, the fee for the state registration of the program for the electronic computing machine or the Database must be paid by the applicant himself or by his representative. All the actions performed by the representative on behalf of the applicant must be confirmed by the power of attorney.
Special attention should be paid to the cases, when the applicants are represented as the group of individuals. In this situation, the fee must be paid by each applicant in an equal share. That is, it is not allowed to pay the fee only by one applicant for all. Everyone must pay his share of the fee from his own funds in accordance with the tax legislation.
The above grounds are not a complete and exhaustive list of the reasons for which the Office may send the request at the consideration of the application for the state registration of the program for the electronic computing machine or the Database. In order to exclude the possibility of receiving the requests or to reduce their number to minimum, it is necessary to contact the specialists in this field and to listen to their recommendations.