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Legislative Implementation of Flexibilities - Russian Federation

Title:Articles 1349 (1), (2) and (3), 1390 (5), 1395 (1) and 1401 to 1405 of the Civil Code, Chapter 72
Field of IP:Patents
Type of flexibility:Security exceptions
Summary table:PDF

Provisions of Law

Article 1349. Objects of Patent Rights

1. The objects of patent rights shall be the results of intellectual activity in the scientific and technical area that meet the requirements, provided for by the present Code, for inventions and utility models and the results of intellectual activity in the area of artistic design that meet the requirements for industrial designs set forth by the present Code.

2. The provisions of the present Code extend to inventions containing information constituting a state secret (the secret inventions), unless otherwise provided for by the special provisions of Articles 1401-1405 of the present Code and by legal acts issued in accordance with them.

3. Legal protection under the present Code shall not be granted to utility models and industrial designs containing information constituting a state secret.

Article 1390. Examination of an Application for a Utility Model

5. In the case when, in the process of examination of an application for a utility model the federal executive authority for intellectual property finds that the information contained in it constitutes a state secret, the documents of the application shall be classified as secret by the procedure provided for by the official secrets legislation. In this case the applicant shall be notified of the possibility of withdrawal of the application for a utility model or of conversion into an application for a secret invention. The examination of such application shall be suspended pending until the receipt from the applicant of the appropriate request or until the declassifying of the application.

Article 1395. Patenting Inventions or Utility Models in Foreign States and in International Organizations

1. An application for the grant of a patent for an invention or utility model created in the Russian Federation may be filed with a foreign state or with an international organization upon the expiry of six months from the day of filing of the respective application with the federal executive authority for intellectual property, provided that within the said period the applicant has not been informed that the application contains information constituting an official secret. An application for an invention or utility model may be filed before the said time limit, but after the conduct at the request of the applicant of a check for presence in the application of information constituting an official state secret. The procedure for conducting a check of the application containing information constituting an official secret shall be determined by the Government of the Russian Federation.

§ 7. Peculiarities of Legal Protection and Use of Secret Inventions

Article 1401. Filing and Processing of Applications for the Grant of a Patent for a Secret Invention

1. Filing of an application for the grant of a patent for a secret invention (an application for a secret invention), examination and processing of such an application shall be conducted in accordance with the procedure established by legislation on the official secrets.

2. Applications for secret inventions classified by degree of secrecy "extraordinary important" or "top secret", as well as for secret inventions in the field of armaments and military technology, intelligence, counterintelligence, operative and investigative activity and classified as "secret" shall be filed, depending upon the respective subject mater with the federal executive authority authorized by the Government of the Russian Federation, the State Corporation on Nuclear Power (Rosatom) (the authorized agencies). Applications for other secret inventions shall be filed with the federal executive authority for intellectual property.

3. If in the course of examination the federal executive authority for intellectual property of an application for an invention it is found that the information contained therein constitutes an official secret, such application shall be classified as secret under the procedure established by the legislation on official secrets and shall be considered to be an application for a secret invention.

Classifying as secret of the application filed by a foreign citizen or foreign legal entity shall not be allowed.

4. In processing of an application for a secret invention the provisions of Articles 1384, 1386-1389 of the present Code shall be applied, respectively. There shall not be publication of information on the application for an invention provided for by Paragraphs 1 and 2 of Article 1385 of the present Code.

5. In the determination of novelty of a secret invention, the secret inventions patented in the Russian Federation and secret inventions to which inventor's certificates have been granted in the USSR shall also be included in the prior art (Paragraph 2 of Article 1350), provided that the classification rating of secrecy for these inventions is not higher than that of the invention, whose novelty is being determined.

6. The appeal against a decision taken on the application for a secret invention by an authorized agency shall be considered under the procedure established by it. A decision taken on such an appeal may be contested in the court.

7. The provisions of Article 1377 of the present Code on the conversion of an application for an invention into an application for a utility model shall not be applied to applications for secret inventions.

Article 1402. Official Registration of a Secret Invention and the Grant of a Patent. Disclosure of Information on a Secret Invention

1. The official registration of a secret invention in the Official State Register of Inventions of the Russian Federation and grant of a patent for a secret invention shall be carried out by the federal executive authority for intellectual property, or, if the decision to grant a patent for a secret invention has been taken by an authorized agency, by the said agency. An authorized agency that has registered a secret invention and granted a patent for a secret invention shall notify the federal executive authority for intellectual property to that effect.

The authorized agency that has registered a secret invention and granted a patent for it shall rectify obvious and technical errors in the patent for the secret invention and/or into the Official Register of Inventions of the Russian Federation.

2. Information on applications and patents for secret inventions as well as changes in the registers relating to secret inventions shall not be published in the Official Register of Inventions of the Russian Federation. Any disclosure of information about such patents shall be in line with the legislation on the official secrets.

Article 1403. Change of the Classification Rating of Secrecy and Declassification of Inventions

1. Change in classification rating of secrecy and declassification of inventions as well as change or removal of secrecy classification stamps from the documents of an application and a patent for a secret invention shall be carried out under the procedure established by the legislation on official secrets.

2. In case of raising the classification rating of secrecy of an invention, the federal executive authority for intellectual property shall communicate the documents of the application for a secret invention depending on the subject matter to the appropriate authorized agency. Subsequent processing of an application proceedings in respect of which at the time of raising the classification rating of secrecy has not been completed by the said federal authority shall be carried out by the authorized agency. In case of reduction of the classification rating of secrecy of an invention, the subsequent processing of an application for the secret invention shall be carried out by the same authorized agency that previously processed the application.

3. In case of declassification of an invention the authorized agency shall communicate the declassified documents of the application to the federal executive authority for intellectual property. The subsequent processing of an application proceedings in respect of which has not been completed before the time of declassification by the authorized agency shall be carried out by the said federal authority.

Article 1404. Recognition of the Invalidity of a Patent for a Secret Invention

An appeal against the grant by an authorized agency of a patent for a secret invention on the grounds provided for in subparagraphs 1 - 3 of Paragraph 1 of Article 1398 of the present Code shall be submitted to this authorized agency and shall be processed in accordance with its procedure. The decision of the authorized agency in respect of which an appeal shall be approved by the head of the said agency, shall become effective from the date of such approval and may be contested in the court.

Article 1405. Exclusive Right to a Secret Invention

1. The use of a secret invention and the disposition of the exclusive right to a secret invention shall conform to the legislation on official secrets.

2. A contract on alienation of a patent as well as a license contract for the use of a secret invention shall be registered in the agency that granted the patent for the secret invention or its legal successor and, in the absence of a legal successor, in the federal executive authority for intellectual property.

3. A public offer to conclude a contract on alienation of a patent and a declaration on open license provided for respectively by Paragraph 1 of Article 1366 and Paragraph 1 of Article 1368 of the present Code are not allowed with respect to a secret invention.

4. A compulsory license provided for by Article 1362 of the present Code shall not be granted with respect to a secret invention.

5. The activities provided for by Article 1359 of the present Code, as well as the use of a secret invention by a person that was not aware and could not be reasonably aware of the existence of a patent for the given invention shall not be deemed as an infringement of the exclusive right of the holder of a patent for a secret invention. Following the declassification of the invention or notification of the said person by the patent holder on the existence of a patent for the particular invention such person shall be obligated to cease using the invention and to conclude a license contract with the patent holder except the case where the right of prior use has been existed.

6. Levy of execution on the exclusive right to a secret invention is not allowed.

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