THE UNIQUENESS OF THE INVENTIVE DESIGN AND THE INVENTION (UTILITY MODEL): PROBLEMS OF THE THEORY AND PRACTICE OF PATENTING IN UKRAINE

Abstract

The publication deals with topical theoretical and practical issues of ensuring the principle of unity (from Greek –μονάς; Latin –unitas) of the inventive concept and the claims (utility model). It analyzes and systematizes the provisions of applicable law, research, and generalizations of the law of practice regarding the application of the requirement of uniqueness of the inventive design and the claims (utility model), as well as substantiates the practical recommendations in drawing up the claims (utility model) in terms of compliance. A brief excursion into the history of inventions from antiquity to the present, as well as the genesis of the assertion and protection of inventors’ rights to the invention (utility model), as well as patenting mechanisms at the international and legislative levels has been made. It is emphasized that the invention was not only a source of inspiration and glory for the inventor, but also a source for his well-being. If, during the scientific revolution of the XVI-XVII centuries. these were various privileges, in the XVIII-XIX centuries. –national patent law (first corresponding to the law of France in 1791, and later –other states), and from the end. XIX century. the protection of the right to inventions was the subject of international treaties –the Paris Convention for the Protection of Industrial Property of 20 March 1883 and others. international treaties as well as national constitutions. In the XX century. legislative models for regulating the protection of property rights to inventions and utility models have been multiplied by the constitutional provisions on intellectual property rights, as well as instructions and other by-laws in the field of patenting. For example, in Ukraine today the rights of the inventor to the invention and utility model are established and guaranteed and protected by the Constitution of Ukraine (Articles 49, 54), the Civil Code of Ukraine (Chapter 39, etc.), the Law of Ukraine “On Protection of Rights to Inventions and Utility Models 1993, “Rules for drawing up and filing an application for invention and utility model application”, approved by the order of the Ministry of Education and Science of Ukraine 2001. etc. One of the problematic issues in the field of patenting inventions (utility models) is to ensure the principle of uniqueness of their inventive design and claims. Law of Ukraine “On Protection of Rights to Inventions and Utility Models”, the application must refer to one or a group of inventions related to a single inventive design (requirement of uniqueness of the invention). In turn, an application for a utility model must relate to one model (utility model uniformity requirement). However, in practice, ensuring the principle of unity of the inventive design and the invention (utility model) causes a number of situations that require a rational solution. Various examples of patenting inventions (utility models) related to ensuring the uniqueness of their inventive design and formula are discussed. In particular, for inventions which have several independent claims: methods, substances. The article also comprehensively explores examples of single objects, that is, with one independent formula clause containing alternative features.