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Restrictions on patenting inventions and utility models

28 Dec 2023
#Practical tips
Head of Department / Patent Attorney / Mechanics Engineer

We live in an age of rapid technological development and almost every innovator, inventor wants to get a patent for his developments, but not everyone knows and understands that there are various kinds of restrictions for patenting. We will consider the existing restrictions on patenting inventions and utility models.

More and more often, our clients have a question about the possibility of protecting an idea and obtaining a patent for it. As a rule, an idea is understood as a new thought that has arisen in the head on some topical problem at the moment. According to Article 1259 of the Civil Code, copyright does not apply to ideas, concepts, principles, methods, processes, systems, solutions to technical, organizational or other problems, discoveries, facts, programming languages, geological information about the subsoil. Indeed, until the moment when the idea is in your head, nothing can spread to it and it cannot be defended. Thought is immaterial, which means that it cannot be protected. So, the first limitation is that the idea cannot be patented.

From the point of view of patent law, according to the law, are not inventions and utility models, in particular:

  1. discoveries;
  2. scientific theories and mathematical methods;
  3. decisions relating only to the appearance of products and aimed at satisfying aesthetic needs;
  4. rules and methods of games, intellectual or economic activities;
  5. computer programs;
  6. decisions consisting only in the provision of information.

In addition, no legal protection is granted as an invention:

  1. plant varieties, animal breeds and biological methods for their production, that is, methods consisting entirely of crossing and selection, with the exception of microbiological methods and products obtained by such methods;
  2. topologies of integrated circuits.

Also, they cannot be objects of patent rights:

  1. methods of human cloning and its clone;
  2. methods for modifying the genetic integrity of human germline cells;
  3. use of human embryos for industrial and commercial purposes;
  4. the results of intellectual activity, if they are contrary to public interests, the principles of humanity and morality.

Thus, all the solutions listed above cannot be protected by either a patent for an invention or a patent for a utility model, which is the second limitation on patenting.

It should be added that obviously useless solutions that do not have a positive technical effect are not recognized as inventions. This means that the new development must be an improvement over the known solution of the same purpose and give the society a higher result than that which gave the previous solution to the same problem.

In this case, technical results are not considered, which:

  • are achieved only due to the observance of a certain order in the implementation of certain types of activities on the basis of an agreement between its participants or established rules;
  • consist only in obtaining information, and are achieved only through the use of a mathematical method, a program for an electronic computer or an algorithm used in it;
  • are due only to the peculiarities of the semantic content of information presented in one form or another on any medium;
  • consist in the entertainment and (or) entertainment of the implementation or use inventions.

Thus, the next limitation in patenting concerns the patenting of useless solutions that do not have a positive technical effect.

Now let's look at the limitations in terms of patent durations. It must be borne in mind that exclusive rights and patents certifying these rights are not valid indefinitely, but have periods of validity established by law, namely, for inventions - 20 years, for utility models - 10 years, subject to payment annual fees for maintaining the patent in force.

Another limitation in patenting is the scope of the patent. It should be noted that all patents have a territorial effect and are valid only in the country in which they are received. For example, if a patent is obtained in Russia, then its effect applies only to the territory of the Russian Federation. There is no international patent that would be valid on the territory of all foreign states at the same time.

In conclusion, let's touch on patenting abroad and note that there is also a limitation for the results of intellectual activity created in Russia. Ensuring the protection of intellectual property objects created in Russia abroad must be carried out in compliance with the norms of Russian legislation regulating issues of national security in the field of industrial property protection. The procedure for patenting inventions and utility models created in the Russian Federation abroad is regulated by Article 1395 of the Civil Code of the Russian Federation, according to which foreign patenting can be carried out no earlier than 6 months after filing an application with the Russian patent office. This requirement is due to the need to check the content of patent applications for the presence of information constituting a state secret. The applicant also needs to make sure that his application does not violate the secrecy requirements and export restrictions provided for by the Law of the Russian Federation of July 21, 1993 No. 5485-1, according to which all responsibility for the disclosure of information constituting a state secret lies with the owner of the information. In this case, the owner is the applicant applying abroad. Thus, your decision must first be defended in your own country, and then in the foreign countries of interest.

Head of Department / Patent Attorney / Mechanics Engineer