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Some Aspects of Patent Law in Ukraine
By Maya Lgova
Grischenko & Partners
he patent system of
Ukraine began its development
in September
1992 when a number of normative
documents were adopted, forming
the basis of patent law development
in our country. It should be noted
that Ukraine was one of the most
developed republics in the sphere
of patent law on the territory of the
ex-USSR. And that is why all the years of its development passed
under the mark of improvement of the existing system and harmonization
of its main laws in consideration of the specifics and
main trends of legislation development in the world in this field.
The objects of patent law in Ukraine, just like worldwide, are
inventions, utility models, and industrial designs. The protection
of patent law objects is effected on the basis of internal legislation,
in particular, of the On the Protection of Rights for Inventions
and Utility Models and On the Protection of Rights for Industrial
Designs Acts of Ukraine of 15 December 1993 with numerous
amendments added during the period of 2000-2003.
It should also be taken into account that Ukraine is a party
to a number of international treaties on the protection of industrial
property objects, and provisions of international law have
a significant impact on the development of internal legislation
and the patent system in general. The main international systems
of patent law in the field of industrial property protection
are The Paris Convention on the Protection of Industrial Property
of 20 March 1883, The Patent Cooperation Treaty of 19 July 1970
enacted in 1973, to which Ukraine is a party, and The European
Patent Convention of 1973, being a regional agreement, in which
Ukraine, for the time being, does not participate, but its legislative
fundamentals have rather a strong influence on the development
of patent law of Ukraine.
What then is a patent and how important it is for business
development?
A patent is a document issued on the basis of an application
by a state body and is accompanied by a specification of
the object (invention, utility model) or a representation of the
outward appearance of an industrial design, which evokes legal
consequences creating a possibility for the use (production, application,
sales, import) of the protected product only with the
permission of the patent owner.
The protection granted by a patent is limited in time from
10 to 20 years, depending on the object of law.
The main objects of patent law are, as mentioned above, inventions,
utility models, and industrial designs.
An invention can be created in any field of science and technique
and refers to a device, method or substance, as well as to
the use of a known device or substance for a new purpose.
A technical solution can be recognized an invention, i.e. can
be patentable, if it is characterized by novelty, comprises an inventive
level and is industrially applicable. The term of validity of
a patent for invention is 20 years, and if it relates to a pharmaceutical
field, it can be renewed for another 5 years. In some countries
of the world, like in Ukraine, there is an additional object
of protection – utility model, which also represents a technical
solution in any field of technique. In some countries (Germany,
Russia, Japan) a technical solution relating to a device only can
be recognized a utility model. In Ukraine, a utility model can be
recognized as a solution relating either to a device or to a method
and substance. Requirements to the patentability of such solutions
are less strict: they should be novel and industrially applicable.
However, since in Ukraine a declarative patent is issued for
a utility model, no examination of such solutions is conducted.
The term of validity of a patent for a utility model is 10 years.
An industrial design relates to a decorative and design solution
of a task and determines the outer appearance of a product.
The decorative and design solution of the task should also be new,
original and industrially applicable. The term of validity of a patent
is 10 years, and it can be renewed for a further 5 years. Patents
are also issued without examination.
What rights does the patent owner have? The patent gives to
its owner the right to use its object of property (invention, utility
model or industrial design) independently. On the other hand,
the patent owner has the right to prohibit from use its object
protected by the patent in the country by persons other than the
patent owner. Thus, a certain “monopoly” in favor of the patent
owner is established for the term of the patent’s validity, allowing
the owner to gain profit from the effort and direct expenses
incurred for creating the patentable technical solution.
In order to obtain a patent in Ukraine one should file an application
for the industrial property object with the state body,
which performs examination of objects for compliance with
formal requirements to such objects, examination for compliance
with patentability criteria (i.e. qualifying examination in
essence), as well as grant of patents.
One of the most important and complex problems to be solved,
both when establishing the fact of infringement of rights and when
determining illegal issue of a patent based on its incompliance with
patentability criterion (novelty, inventive level, industrial applicability),
is the issue of scope of rights, which the owner of the patent
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