DETERMINATION OF CONFORMITY OF INVENTIONS, RELATING TO THE COMPOSITIONS OF KNOWN SUBSTANCES, CONDITIONS OF PATENTABILITY «INVENTIVE LEVEL»

Abstract

Forensic examination in the field of intellectual property concerning compositions of known substances has certain difficulties. If with such conditions of patentability as «novelty» or «industrial applicability» everything is clear enough, the compliance of such inventions with the condition of patentability «inventive step» is the most debatable. The fact that the concept of «obviousness to a specialist» and even the very concept of «specialist», «specialist in this field» are not clearly defined in current legislation, further complicates this issue. Crucial in deciding whether such inventions meet the condition of patentability «inventive step» is the presence or absence of a synergistic effect in the properties of these compositions. A number of approaches have been described in the scientific literature to address this issue. In the field of agrochemistry, the Colby equation has been proposed and widely used to identify the synergistic effect. Lowe’s isobolographic analysis based on the additive dose model is used to determine the type of interaction in the pharmaceutical industry. To more accurately study the synergistic effect across a range of doses or concentrations, the Colby equation is now widely used in the pharmaceutical industry. The conclusion of the forensic expert, in addition to providing the correct answer to the questions, should be clear, convincing and understandable not only for specialists in science and technology related to chemistry, pharmaceuticals, agrochemistry, toxicology and more. The article analyzes the shortcomings in the legal documents, briefly describes the different approaches to assessing the synergistic effect and provides relevant references to the literature. Also, for specialists who search for materials for forensic examinations of patents relating to mixtures where a synergistic effect is claimed, a criterion for the selection of such materials is proposed. Materials that meet this criterion will minimize mathematical errors and avoid excessive use of complex mathematical methods in forensic science.