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FORENSIC EXAMINATION OF INVENTIONS AND UTILITY MODELS

Judicial procedures of violated intellectual rights protection are provided for in p. 1 Article 1248 of the Russian Civil Code. Intellectual rights to inventions and utility models, named as “patent rights” are listed among other intellectual rights in the Civil Code (p. 1 Article 1345 of the Civil Code)/

Response to the question of invention or utility model actual use in product or method, being subject to judicial deliberation, is a vital part of trial (pretrial) proceedings.

The up-to-date practice shows that the courts tend towards appointment of specialized patent forensic examination in order to give answer to this question. Thus, the courts appoint a forensic examiner being an expert in the area of patent rights and at the same time having expertise in the art to which a product or method being the subject of consideration, relates. The result of such examination will be an examiner’s written opinion which is regarded by the law as an independent judicial evidence.

In accordance with p. 3 of Article 1358 of the Civil Code, an invention or utility model shall be considered used in a product or method if the product contains or in the method there is used each characteristic of the invention or utility model stated in an independent claim contained in the claims of the invention or utility model according to the patent, or a characteristic equivalent thereto that has become known as such in the given art of technique before the taking with respect to the corresponding product or the method of such actions as, e.g. the import onto the territory of the Russian Federation, manufacture, use, offering for sale, sale or other introduction into civil commerce or the storage for these purposes of a product in which the invention or utility model is used, including the application of the said method.

The independent claims should be understood as the claims determining the scope of claimed legal protection and should not be confused with the so-called dependent claims of an invention or utility model. The dependent claims contain the features characterizing only some special cases of invention (utility model) embodiment or use. The description of a dependent claim contains link to an independent or another dependent claim, for example, “2. A method according to Claim 1 wherein…”.

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