Maria Zuykova

Intellectual property disputes can be complex and costly and often result in lengthy legal battles. To address this issue, many legal systems around the world have recognized the value of mediation as an effective means of resolving such disputes. Russia is no exception, and in accordance with Russian law, mediation is recognized as an alternative method of resolving disputes in the field of intellectual property.Mediation is a voluntary process in which a neutral third party (mediator) helps the parties agree on a settlement to their dispute. The mediator does not make a decision or impose a settlement, but merely facilitates the negotiation process and helps the parties reach a mutually acceptable agreement. The mediator can also provide the parties with information and advice on the legal and technical aspects of the dispute, which can help in the negotiation process.The possibility of "mediation" of disputes in the field of intellectual property is enshrined in the fourth part of the Civil Code of the Russian Federation, which covers intellectual property rights. Article 1252.1 of the Civil Code states that disputes related to intellectual property rights can be settled through mediation. In addition, Article 1262 of the Civil Code provides that the parties to the dispute may choose to resolve the dispute through mediation and that the mediation agreement reached between the parties will be legally binding.The Russian Civil Code contains provisions that encourage the use of mediation in intellectual property disputes. Article 1261 of the Civil Code provides that the parties to the dispute must make good faith efforts to resolve the dispute through negotiations, and if the negotiations fail, the parties must consider using mediation. In addition, the Civil Code establishes specialized mediation centers for disputes in the field of intellectual property, which employ trained mediators with experience in the field of intellectual property law.One example of a specialized mediation center in Russia is the Center for Intellectual Property Mediation and Arbitration (CMAC), which was established by the Russian Patent and Trademark Office. CMAC provides mediation services for a wide range of intellectual property disputes, including disputes related to patents, trademarks, copyrights and trade secrets. CMAC also trains mediators and offers educational programs for businesses and individuals interested in learning more about mediation.From the scientific work of Khasan and Poleshchuk "Criteria of mediability of conflicts in legal practice B.I. Khasan, Y.O. Poleshchuk" the following generalizations about the concept of mediability should be made:The essential feature of mediation is its transparency; a mediator is only a means for organizing negotiations, mediation is a kind of negotiations and is appropriate only in a case recognized as negotiation;The chain of reasoning about recognizing a case as mediable should begin not with an alternative to litigation, but with an alternative to negotiations without a mediator.  As a result of B.I. Hasan and Yu.O. Poleshchuk identified 20 important circumstances for making a decision to open a mediation procedure:For parties important confidentiality;For the parties, an outcome other than a judgment is desirable;Each of the parties has its own interest in the negotiations (the interdependence of the parties to the dispute);There are no subcultural type restrictions that prevent specific negotiations;The relationship of the parties is emotionally tense, which prevents productive direct interaction;The subject of the dispute does not contain the risks of violating the prohibitions provided for by law;The dispute has such characteristics that allow us to consider mediation as the preferred form of the court;The parties have good will to an agreement (the desire of the parties to enter into dialogue and negotiate);The parties have a resource for the implementation of agreements and joint decisions;The parties do not master the techniques of negotiation, which hinders productive direct interaction;The parties are able to negotiate on an equal footing (there are no sharp differences in power);The parties want to resolve the situation faster and at lower cost than in court;Judicial practice on the dispute is contradictory, prospects in court are unknown;A particular mediator has an appropriate resource (enough professional and personal competencies to take on a case of this category of complexity);The parties have an interest in good relations with each other in the future, their relations are of a long-term nature;The parties have no intention of dragging out the trial, the parties are in good faith;The parties do not have an attitude towards resolving issues of guilt, which makes it difficult to rationally interpret the conflict;The parties show no signs of mental anomalies;The nature of the dispute allows for positional variability within the interests of the parties (there are several possible solutions to the problem that satisfy the interests of the parties);The escalation of the conflict has not crossed a certain threshold. Mediation can be used to resolve a wide range of intellectual property disputes, including patent, trademark, copyright and trade secret disputes. Mediation can be especially helpful in cases where the parties are in an ongoing relationship, as it can help keep the relationship alive and avoid the costs and uncertainty of litigation. In addition, mediation can provide a more flexible and creative approach to dispute resolution than traditional litigation, as parties are free to explore a range of possible solutions to their dispute.Summarizing the considered provisions on the medialability of conflicts in legal practice, it is worth noting the following (according to the study of B.I. Khasan and Yu.O. Poleshchuk): the system of criteria for medialability should be based on the criteria for negotiation and consistently consist of indications for mediation and obstacles to it; among the indications for mediation, in addition to recognizing the case as a negotiation one, it is necessary to single out the non-ownership of the technologies of negotiation processes and the acceptable threshold of interpersonal relations between the parties to the conflict;the following factors may be an obstacle to mediation: a high degree of escalation of the conflict, criteria related to the personal characteristics of the parties, and contextual criteria;an excessively high degree of conflict escalation (when it can be concluded that the case is unmedial) should be considered a threshold value exceeding the 6th stage according to F.Glasl (see Friedrich Glasl's conflict escalation model);the criteria-obstacles associated with the personal characteristics of the parties should include the attitude towards resolving issues of guilt, the inability to rationally interpret the conflict with the prospect of resolving it;contextual criteria include circumstances that are not related to the conflict situation itself and the personal characteristics of the parties, which have an external objective character (direct prohibitions, some restrictions of the subcultural type). In conclusion, it should be noted that the "mediation" of disputes in the field of intellectual property in accordance with Russian law provides an effective and flexible way to resolve disputes, while promoting cooperation and maintaining relations between the parties. The Russian Civil Code contains a number of provisions encouraging the use of mediation to resolve intellectual property disputes, and there are many specialized mediation centers and organizations offering mediation services in Russia. Overall, mediation is a valuable alternative to traditional IP litigation in Russia and can help reduce costs, save time and preserve relationships between parties.Source: Hasan, B. I., Poleshchuk, Yu. O. (2020). Criteria of mediability of conflicts in legal practice. Bulletin of St. Petersburg University. Law, 11(1), 207-222. https://doi.org/10.21638/spbu14.2020.115

Blockchain technology has recently generated a lot of interest from both academia and industry. Blockchain is a distributed software system that allows transactions to be processed without the involvement of a trusted third party. As a result, business transactions can be completed in an inexpensive and fast manner. In addition, the immutability of blockchains provides distributed trust, as it is almost impossible to forge any transactions stored on blockchains, and all historical transactions are available for verification and traceability.Blockchain technology allows the creation of smart contracts, which were first proposed in the 1990s by Nick Szabo. In a smart contract, contract terms written in computer programs will be automatically executed under predetermined conditions. Smart contracts, which are made up of transactions, are essentially stored, replicated, and updated on distributed blockchains. In contrast, conventional contracts must be executed by a trusted third party in a centralized manner, which increases the duration and incurs additional costs. The integration of blockchain technology with smart contracts will make the dream of a “peer-to-peer market” come true.The history of smart contractsFor the first time the idea of "smart contract" was proposed in 1994 by Nick Szabo, but practical application became possible only with the advent of blockchain technologies in 2008.Smart contracts facilitate the execution of contractual agreements with built-in transparency and resistance to forgery. The distinctive features of smart contracts make them suitable for many applications. A lot of research has been done in the industry as well as in academia to explore the strengths and applicability of smart contracts. In addition, improvements in the technical aspects have focused on fine-tuning smart contracts to improve their interoperability. Contract platforms are emerging on the market with appropriate features that are suitable for specific applications.Smart contracts can translate business rules into computer programs. Each smart contract platform includes a set of application-specific features. For example, Ethereum is primarily developed for applications that require tokenization. Almost all platforms contain the core features of a smart contract system, including immutable code, a decentralized ledger, and a consensus layer.The importance of smart contracts is determined by a rich set of features such as decentralization, resistance to forgery, transparency, autonomous execution, and accuracy. As a result, blockchain -based smart contracts are being used in a wide variety of applications such as finance, healthcare, e-government, internet of things, telecommunications, logistics, and various industrial contexts. Several blockchain platforms such as Ethereum , Hyperledger Fabric , Corda , NEM, Stellar and Waves are available to deploy smart contacts with unique applicability features in the industry. Moreover, more platforms targeting specialized application areas are expected to emerge. However, there are several issues that need to be addressed before the large-scale implementation of smart contracts. These issues include scalability, data privacy, lack of governance, computational overhead, storage overhead, and network overhead.The main characteristics of a "smart" contract are: its form of expression (programming language); self-execution; use of blockchain infrastructure.Form of expression. First of all, it should be understood that a "smart" contract is written in an artificial language (programming language), and not in a natural language. However, like any other contract, it is a collection of commands (( if ) if ..., ( else ) then ..., ( another ) otherwise ...). The fundamental difference is that in the case of an artificial language, these commands are executed by a machine and without human participation, and in the case of a natural one, they are performed either by the participants themselves voluntarily or with the help of a third party (for example, a court).Self-fulfillment. This criterion is not new. Such methodologies are already used in the field of exchange trading. Now exchange works are participating in the auction, which independently decide on the conclusion of a transaction based on the algorithm. As for "smart" contracts, in this case, the terms of the contract are executed automatically in the environment, if certain conditions are met, which are pre-written in the programming language. For example, if ( if ) the container crossed the customs border, then ( else ) will pay 80% of the deposit to the counterparty. Such a condition is fulfilled automatically without the intervention of subjects in the contract or other manipulations with it.Use of blockchain infrastructure. Blockchain should be understood as a distributed public registry containing a database of all previously performed transactions, which is decentralized and contained in public sources on the Internet.Legally, it is quite difficult to understand such a structure, but its features can be analyzed.Block information cannot be changed. The database of all previously completed transactions is decentralized and distributed among all participants in the system.Publicity. Based on paragraph 1, each participant in the system can check the entered information about the transaction.The legal nature of a smart contract lies in the direct expression of the will of the parties and formally complies with the principles of civil law. This agreement also has a typical legal structure - subject, term and price.At this stage, a "smart" contract is a way to automatically fulfill the agreements reached, which is a formulated set of agreements between the parties, reached through the negotiation process.Practical aspects of using smart contractsIf we consider the practical aspects of the use of smart contracts as a basis for the emergence of private property rights, here we can distinguish both pluses and minuses. The acquisition of property (both real and virtual) is called one of the main areas of application of smart contracts. The advantages over traditional contracts in this area are, in particular, the absence of intermediaries, automatic execution, strict regulation of activities and interpretation of conditions, the impossibility of interfering with a predetermined code. Ideally, smart contracts should not only help reduce transaction and transaction costs, but also reduce the number of litigation. However, most of the advantages of smart contracts are also its disadvantages.So, the biggest problem of smart contracts is the impossibility of coding a significant part of the agreements between the parties, because they do not fit into the “if <...>, then <...>” scheme, but are covered by abstract concepts, such as “legality” , "fairness", "reasonable time", "protection of the weaker side", etc.The next disadvantage of smart contracts is the link to the real world and the need to obtain data from outside the system. To obtain data that is located outside the blockchain or other distributed ledger, a smart contract must contact the so-called oracles. Oracle programs are specialized services aimed at linking the digital world to the real one and providing smart contracts with initial data for their execution. The use of oracles means the involvement of a third party in such an agreement with all the ensuing risks, in particular, the question arises of the reliability of data obtained from such a source. The oracle program can be attacked by attackers who change its code, as a result of which it will provide false data. Or the information entering the oracle can be changed or modified.As a result of such manipulations, the information entering the smart contract will be unreliable, which will determine in advance the unfair execution of the agreement.The automatic execution of a smart contract also raises some problems. In particular, if there are objective conditions for suspending the execution or changing the agreement, the smart contract cannot be changed, just as it is impossible to suspend its execution. Problems may also be related to the fact that the program code may contain an error, or errors were made when entering data into the system. In addition, there is no answer as to who should be held responsible for such errors: the parties, the application developer, or someone else. That is, unlike traditional contracts, smart contracts have almost no flexibility.When we talk about acquiring ownership of real estate on the basis of smart contracts, it is also necessary to take into account the participation of notaries and state registrars in this procedure. In this situation, smart contracts can both simplify the procedure and cause difficulties. For example, the advantage of a smart contract for real estate purchase and sale contracts would be to simplify execution. So, if after the conclusion of the contract of sale, the ownership right to the buyer was re-registered, but the latter did not pay the money to the seller within the prescribed period, the ownership right can be automatically re-registered to the seller without the need to apply with the corresponding requirement to the registrars. At the same time, in order to use smart contracts in real estate transactions, it is necessary to resolve the issue of participation (or absence) of notaries in this procedure, as well as state assistance in transferring state registries to the blockchain.The purely legal problems of smart contracts include the lack of a legal framework, that is, at the moment there is practically no legislative regulation of the procedure for concluding and executing smart contracts, as well as problems related to the choice of law that applies to smart contracts of a transnational nature, and the problem of how to protect the rights arising from the conclusion of smart contracts.If counterparties are located in different countries, there may be a problem of determining the law by which relations are settled. In this case, difficulties may arise with the application of the usual rules of private international law. For example, with respect to smart contracts, conflict-of-law bindings such as “place of performance of the contract”, “place of conclusion of the contract”, “the law with which the legal relationship is most closely connected” lose their meaning. To solve this problem, it is proposed to immediately determine what law should apply to such relations. However, it is quite difficult to determine this in the program - it is not clear how to formulate it correctly, whether the program will be able to properly use such a condition. Therefore, in this case, it is again more expedient to fix some conditions on paper.One of the most important problems associated with the use of smart contracts is the problem of protecting the rights of its participants. In the case of smart contracts, some traditional categories of contract law must be considered from a different angle. For example, there is an opinion that the category of improper performance of an obligation cannot be applied to smart contracts. The smart contract aims to ensure the proper fulfillment of the obligation, therefore, in fact, through the use of smart contracts, the risks of dishonesty of the parties to the contract are eliminated. However, failure to fulfill an obligation formalized with a smart contract can also happen. But the reason for this is most often a technical error. Because as a way to protect rights in this case, it is proposed to use coercion to fulfill obligations in kind. If the obligation was fulfilled with an error, bilateral restitution should be applied. Bilateral restitution under a smart contract will be possible with a reverse transaction mechanism, which can be provided in a smart contract. It can be applied when performance has been made but an error has been discovered in the contractual terms.According to the researchers, liability for violation of obligations from smart contracts will also have specifics. It is believed that in such a case only non-contractual liability measures can be applied, since the obligation is performed only properly, cases of willful non-performance are not considered.Features of automated execution are that the obligated party does not influence the performance and cannot be held responsible for software failures and errors in the performance of the obligation. In this case, either an incident is possible when no liability arises, or the tort liability of the party for intentionally making changes to the operation of technical devices.When we talk about liability for violation of conditions and errors in smart contracts, we consider it appropriate to take into account such factors. First, if the improper execution of a smart contract is due to an error in the program code, the question arises as to who should be held responsible for such an error. It is seen that the responsibility for such errors should be assigned to the party that took the responsibility to prepare the smart contract. For example, if a smart contract is developed on the order of the debtor, he must bear the risk of an error in the smart contract, which will lead to improper execution. If the development of a smart contract is undertaken by the lender, he should be responsible for the failure to comply with such a contract. In any case, the party that takes the risk of non-execution of the smart contract due to technical errors has the right to claim against the developer with whom the contract for software development was concluded. Within the framework of this claim, it is also possible to demand compensation for losses caused by the failure to fulfill such a contract. Secondly, the specifics of a smart contract is that the responsibility for its violation can be assigned to a third party who interfered with the program code, which led to improper fulfillment of the obligation. Such liability will be implemented within the framework of the rules of tort law.ConclusionFrom a legal point of view, a smart contract can be characterized as an agreement between two or more persons to establish, change or terminate legal rights and obligations, which are formalized and executed using special computer programs. At the same time, all the terms of the transaction are executed in electronic form, and their implementation is carried out automatically. So, the main feature of a legal smart contract is the clearly expressed terms of the agreement between the parties and the ability to self-realization on a legally enforceable basis.Traditionally, the question of which law applies to a contract is determined by the rules of private international law. However, given the legal nature of international treaties that are complicated by a foreign element, it may be difficult to apply the usual rules of private international law in smart contracts. After all, when counterparties are located in different countries, the problem arises of determining the law by which such relations will be settled. For smart contracts, conflict bindings like “place of performance of the contract”, “place of conclusion of the contract”, “law”, with which legal relations are most closely connected, lose their meaning.So, at the moment, many issues related to smart contracts remain unresolved. Thus, the main advantage of a smart contract - the impossibility of changing its conditions and interfering with its work - is simultaneously considered its main drawback, since it does not allow taking into account objective circumstances that may affect the execution of the contract.

A study of the industry allows us to outline the state of the art, on the basis of which unique inventions can be developed. And checking the degree of novelty of the object allows to conclude on the potential patentability of the result of intellectual activity, which leads to saving time and money for the future patent holder. The most effective way to carry out the designated actions is to conduct a patent research.In accordance with paragraph 3.1.1 of State Standard R 15. 011-96, a patent research is defined as: “Studies of the technical level and development trends of objects of economic activity, their patentability, patent freedom-to-operate, competitiveness (efficiency of intended use) on the basis of patent and other information”[1].By definition, patent research can be considered as a study of the market of available technical decisions and its trends in a particular area, in order to analyze and predict possible ways of development of the field under consideration.The main source of such research is a special patent information. According to the information presented on the official Internet portal of the Federal Service for Intellectual Property: “Patent information is information about inventions, utility models, industrial designs and trademarks, declared as objects of industrial property and/or officially recognized as such by the patent office[2].”Sung Woo Hong of the World Intellectual Property Organization (hereinafter WIPO), points out that this kind of information should include: “...not only the content of published patent documents, but also bibliographies and other information relating to patents for inventions, inventors’ certificates, utility certificates and utility models[3].”Thus, it can be concluded that patent information is the most comprehensive and up-to-date range of information known in the field of scientific and technological solutions. In addition, it can be added that patent information is a tool, the use of which is important at all stages of the life cycle of the object of technology, i.e., from the beginning of its creation, namely from setting the task for R&D and choosing the direction of activity to the end of the life cycle of the patented technical solution, i.e., its exit from the market.Depending on the person that conducts patent information research, it is possible to distinguish the following ways to conduct a patent search.Independent patent search.Analytical research conducted by a specialized consulting organization.During the independent research, the company may use open and public databases of patent offices, which contain up-to-date information on the patented objects, and also registers of information on the intellectual property objects applied for registration. In addition, it is possible to use paid search systems and commercial platforms with aggregated data and various tools for advanced and comprehensive searches. As a positive aspect of the independent analysis of patent information, there can be a reduction of financial costs.When a third-party company carries out patent information research, the search work is carried out by another organization at the request of the firm planning or carrying out the R&D.As practice shows, enterprises introducing innovations and using the objects of patent law in the vast majority of cases prefer to use the services of specialized companies offering to conduct patent searches. This state of affairs is due to the following circumstances.Patent research uses the widest possible range of available information, data and tools.Information search and analysis is performed by skilled specialists, who can make a reasonable conclusion on the degree of similarity of the compared objects and the probability of a threat in case of a collision of the rights of the owners of the compared intellectual property objects.If necessary, employees of the consulting company can give a number of valuable recommendations concerning the improvement of the object to be patented.The commercial client of the patent information search receives a ready-made report on the conducted research, which reflects the background and justification of the obtained research, as well as the trends and possible ways of development of the considered field in the future. Thus, there is no need to conduct a detailed analysis of patent information within the organization which is engaged in R&D, which undoubtedly reduces the time and labor costs.Due to the wide range of the analyzed information, it is possible to conclude about the completeness and high objectivity of the research conducted by the consulting organization.The above-mentioned circumstances encourage companies to seek a professional advice from a consulting organization with regard to patent search.

By nature, humans are born to strive for progress and the discovery of new things. From this perspective, the last centuries can be described as a period of rapid development in all fields of human activity. The industrial revolution showed that life can be significantly improved through innovation, and society willingly began to apply various inventions. At the present stage of development, we can make a bold statement that mankind has realized the expediency of using intellectual property objects. International corporations and developing enterprises, single-industry companies and multi-profile firms, i.e., all organizations consider the introduction of scientific breakthrough as one of their priorities.However, in order to make full use of inventions, industrial designs or utility models, an appropriate legal regime must be in place. In addition, it is important to find out whether the subject matter is patented by another person. To get an answer to the above question, we can use a patent search. Such a procedure can be carried out by the employees of the company, which plans to register or use the intellectual property object. But, like any other process, the patent search has its own ins and outs. Therefore, the most effective and expedient way is to seek professional advice from a company providing consulting services in the field of patenting.So that to assess the chances of obtaining a patent for a developed result of intellectual activity, it is necessary to conduct an international patent information search or assess its patentability. The main conditions, for example, for obtaining a patent for an invention are feature of novelty, inventive level and industrial applicability. Since the criteria for obtaining patents in all countries are worldwide, the developed solution must also be unique throughout the world, that is, there should be no known analogous, the same or similar to the developed solution. If no same or similar solutions are found in the international search, there is a high probability of obtaining a patent.Each type of search has a different purpose and requires a different strategy. Companies providing consulting services in patenting perform the following types of work in the field of patent search:Patent analytics;Patent clearance of the identified technique;Patent landscaping.It is worth noting that the essence of all the above services comes down to the search, collection and analysis of patent related information. The difference lies in the objectives and goals set in for the research, as well as the desired results.Patent analytics is a patent search aimed at predicting the direction of technical decisions market development. Consulting company specialists analyze the patents identified and draw conclusions about the feasibility of scientific activity in a particular area. As K. Zaitseva rightly notes: “Patent analytics will help understand the intentions of competitors, determine technological trends, find developers and identify patents that may not be infringed...[1]”.The patent clearance is conducted to identify valid patents in a particular territory, the exclusive rights of which may be infringed by a developed solution. Also, the existence of a patent does not always guarantee that someone’s exclusive rights, protected by the patents of others, are not infringed.Non-infringement quality of an invention is the legal characteristic of an intellectual property object that it can be freely used in a given country without the risk of infringement of patents owned by third parties that are valid in its territory. The purpose of the patent clearance search is to identify the features of the patented technical and/or design intellectual property solution used in the object, despite the existing differences in other features.The patentability search examines the object as a whole, all or most of the technical/design decisions implemented in it are evaluated. It is searched on a country-by-country basis. Patent clearance searches are carried out in a particular territory, usually in the countries of intended production and export of the product and within the patent validity period: 20 years for inventions (25 years for drug, pesticide or agrochemical inventions), 10 years for utility models, 25 years for industrial designs.Patent landscaping is a type of patent and information search to study the data known in the technical field. The result of such research is a specialized report, with information for more comprehensible study of information for marketers. The information is presented in the form of graphs and charts, which allows to visualize the information about the patenting market in the investigated sphere of innovations. It gives the possibility to define a position and resources of the company in the market of technical decisions, as well as to assess the position of competitors and identify threats that may arise before the release of a new invention or other object on the market. It is worth noting that the patent landscape should be conducted on an ongoing basis, for example, once a quarter, once every six months, so that the company reacts to changes in the field of patents in a timely manner.To summarize the above, we can conclude on the necessity and importance of such kind of analytical research as a patent search. Conducting various types of patent searches and reports based on the results of the research allows the client companies can:Make a conclusion about the patentability of the obtained result of intellectual activity;See the possibility of infringement of rights of third partiesHave a complete idea of the market of technical decisions and opportunities to strengthen its position at the expense of the use of patent rights.Thus, a patent search, carried out by qualified specialists will save money and optimize the activities of an enterprise.