Invention and literary work. What is the difference between them?

In order to understand how an invention and a literary work differ from each other, let’s first give definitions.

In accordance with the current patent legislation (Part 4 of the Civil Code of the Russian Federation), an invention is a technical solution that relates to a product, such as a device, substance, strain of microorganism, plant, or animal cell culture, or a method, which is a process of carrying out certain actions on a material object using material means, including using a product or a method for a specific purpose.

An invention is legally subject to patent rights.

A literary work is the result of human activity in the field of literature. According to the law, works of science, literature and art, regardless of the merits and purpose of the work, as well as the method of its expression, are objects of copyright.

Let us next consider the fundamental differences between copyright and patent rights.

Copyright protects both published and unpublished works that are expressed in any form that can be perceived by the senses, including written, oral, and other forms. Therefore, the existence of an objective representation is a necessary condition for copyright protection. For example, for a literary work, the objective form can be written (manuscript, typescript, musical notation, etc.). It is important to note that copyright protects the specific form in which a work of literature is expressed, rather than its content or ideas.

The creation, exercise, and protection of copyright do not require registration of a work or compliance with any other formalities. Copyright in a work arises simply by virtue of its creation. Unless there is evidence to the contrary, the person indicated as the author on a copy of the work is presumed to be the actual author.

As for patent rights, namely, inventions, they apply only to registered results and arise from the moment of their registration with the authorized body.

In order for an invention to be registered, it is necessary to prepare and submit to the patent office a set of documents established by law, pay the necessary fees to the state treasury, and undergo formal verification and substantive examination. For inventions, the entire procedure from the moment of filing documents with the patent office until receiving a patent takes on average 10–18 months.

Patent rights apply only to published results of intellectual activity. Thus, for inventions, all applications submitted for registration are published after 18 months from the date of filing the application with the patent office in the scope of the claims. After the publication of information regarding an application for an invention, any person has the right to become familiar with the relevant application documents. After registration of the invention, the invention is also published in the state register of inventions of the Russian Federation, but in a broader scope, namely, an abstract, description of the invention, claims and drawings, if available. Thus, any interested person can become familiar with the essence of the patented technical solution.

Unlike a literary work, an invention protects not the form, but the content - the essence of the technical solution.

The validity periods for the exclusive rights to a literary work and an invention are also different.

The exclusive right to a literary work is valid for the entire life of the author and seventy years, counting from January 1 of the year following the year of the author’s death. The exclusive right to a work created in collaboration is valid during the lifetime of the author who outlives the other collaborators, and for 70 years, counting from 1 January of the year following their death. For a work published anonymously or under a pseudonym, the exclusive right expires after seventy years, counting from January 1 of the year following the year of its lawful publication. If, during the specified period, the author of a work published anonymously or under a pseudonym reveals his identity or his identity leaves no further doubt, the exclusive right will be valid for the entire life of the author and seventy years, counting from January 1 of the year following the year of death of the author. The exclusive right to a work published after the death of the author is valid for seventy years after the publication of the work, counting from January 1 of the year following the year of its publication, provided that the work was published within seventy years after the death of the author.

The exclusive right to an invention and the patent certifying this right are valid from the date of filing an application for a patent with the Rospatent and for twenty years, subject to payment of annual patent fees. Protection of an exclusive right certified by a patent can be carried out only after state registration of the invention and the issuance of a patent. For inventions related to products such as medicines, pesticides, or agrochemicals, the use of which requires obtaining permission in accordance with the legal procedure, the validity period of the exclusive rights to the corresponding inventions and the patents certifying these rights may be extended, but no more than five years. Thus, the maximum validity period of such a patent cannot exceed 25 years. No further extension is provided.

In conclusion, we will consider the territory of copyright and patent rights.

According to the Berne Convention for the Protection of Literary and Artistic Works, which was concluded in 1883 and to which 181 countries around the world, including Russia, are parties, works by Russian authors are protected in all countries that have joined the convention. This means that copyright in a literary work is valid worldwide. Similarly, works by foreign authors are subject to legal protection in Russia.

As for patent rights, all patents, including those for inventions, have a territorial effect, meaning they are valid within the country where they were granted. Accordingly, inventions registered in Russia are valid only on the territory of the Russian Federation.

Therefore, based on the above, we can conclude that an invention and a work of literature are two distinct entities. An invention cannot be considered a work of literature, and vice versa, a work of literature will never transform into an invention.