FORENSIC EXAMINATION ON INTELLECTUAL PROPERTY: GENESIS, CONCEPT, CLASSIFICATION AND SYSTEM

Abstract

The publication is devoted to actual problems and prospects of development of forensic examination of objects of intellectual property rights in Ukraine in conditions of judicial reform. The main stages of approval, starting from 2002, and the development of forensic expertise in the field of intellectual property in the context of the genesis of mechanisms for the protection of intellectual property rights are determined. The uniqueness and importance of the activity of the Research Center for Forensic Examination on Intellectual Property Issues of the Ministry of Justice in 2004-2019 is noted in the context of the development of the investigated type of forensic expertise. It is grounded that the forensic examination on intellectual property issues is a deliberate activity in obtaining evidence information on the protection of the right to intellectual property, the content of which is to be investigated by court experts on the basis of special knowledge in the field of copyright, the right to signs for goods and services , industrial property rights, intellectual property, objects, phenomena and processes, in order to provide objective and properly substantiated conclusions that are or will be the subject of the court consideration. It is noted that the forensic expertise of research institutes of forensic examination (NDUSE) in the field of intellectual property is not limited to forensic examination. In accordance with the Resolution of the Cabinet of Ministers of Ukraine dated July 27, 2011, No. 804, the protection of intellectual property objects is also carried out by means of certified expert experts in expert studies, the results of which are issued as: a) conclusions of expert studies; b) advisory reports (conclusions). The latter, taking into account the practice of NDUSE activities in 2005-2018, protect the right to intellectual property rights when conducting tender procedures and providing administrative services. It is noted that forensic examination of objects of intellectual property right now is quite diverse, and in order to realize the potential of this type of forensic examination, it is necessary to identify their main types. The universal methodological tool for this is the classification (from the Latin classis «discharge» and ... fixing) of forensic examinations on intellectual property issues, which is purposeful scientific and practical activity on their distribution, on the basis of pre-identified criteria, on certain types (classes) and groups of forensic examination of objects of intellectual property rights for the purpose of further systematization. According to the selected criteria (from Greek κριτήριον – «means of judgment»), namely: 1) on objects of intellectual property rights and expert specialties; 2) by the number of expert specialties on which the forensic examination is conducted: 3) according to the types of procedural proceedings, in which judicial examinations on intellectual property issues are conducted: 4) on the subjects of appointment and ordering of forensic examinations on issues of intellectual property: 5) on grounds and the procedure for appointment of forensic examinations on issues of intellectual property: 6) the complexity of conducting forensic examinations on issues of intellectual property: 7) on subjects of conducting forensic examinations on questions of intellectual her property: 8) the number of forensic experts involved in the forensic examination of intellectual property etc, the classification and general characteristics of the main types of Forensic Expertise on Intellectual Property. The propositions on priorities and prospects of development of specific types of forensic examination of intellectual property objects are substantiated. The conclusion is drawn that the system (from the Greek σνστημα – the combination, formation) of forensic examinations on intellectual property issues is an ordered community of different types of forensic examinations and their groups, interconnected by doctrinal, objective, functional, structural and other links directed to protect the constitutional right to objects of intellectual property rights.