BELOW THE SKIRTINTH

TECHNOLOGIES

There was a curiosity in the business world. One resourceful entrepreneur managed to get a patent for a beer bottle and, unobtrusively alluding to judicial prospects, sent an extortionate text to the breweries: kindly buy from me ...

There was a curiosity in the business world. One resourceful entrepreneur managed to get a patent for a beer bottle and, unobtrusively alluding to judicial prospects, sent an extortionate text to the breweries: kindly buy a license from me ... History is silent about how the beer bosses reasoned with the insolent man. Alive and fine. What about business? What is the business on the bottle ...

And yet, last year the ice on the fields of patent battles broke. The court made a historic decision: the first sentence was handed down for patent infringement. The owner of the Mir Parquet store received two years probation. He was accused of selling adjustable floors without getting permission from the patent holders.

Moreover, while lawyers are arguing whether such severity is justified and whether it contradicts the principles of the rule of law (except for us, criminal terms for patent infringers are given only in China), the prosecutor's office is investigating another criminal case. The same goes for adjustable floors.

Englishman Michael Weller has been building and renovating for over thirty years. At home, he has his own company - "Office Skape". A few years ago, I decided to open a business in Russia, granting the right to use the Office Scape trademark to several Russian repair companies.

Last April, one of these firms, Kontal, received a telegram. It was addressed to the general director Zverev and the owner of the brand Michael Weller. The cable stated that the firm was "distributing counterfeit products" and suggested that it "cease its activities."

Zverev was surprised. The floors that the company uses in office renovations have been produced in the West since the middle of the last century and are officially imported from abroad. What rights can domestic inventors have, even if they have some kind of patent, for an imported product?

A second reminder came at the end of the month: now the company has to pay for the installation of floors. Zverev, just in case, asked Michael Weller whether raised floors were patented in England.

No, answered Weller, floors have been produced in England for forty or fifty years. It's a common product, like a wheel or a fountain pen, no patents needed. Any company around the world can start releasing these items completely freely. Undoubtedly, Weller considered, the same rule applies in Russia, a full-fledged participant in international relations.

Telegrams, meanwhile, continued to arrive. Almost like the classics: "Load oranges in barrels."

- Lord! Stop doing nonsense! We do not serve or sell anything to anyone. Address wherever you want, - Zverev answered at the specified address.

The owners of the patents, Sergei Kardashev, director of the Department of New Technologies, and Vsevolod Glukhovtsev, head of the security service of a well-known bank, were no strangers to patent disputes. In February 2004, it was they who won the case against the director of the Mir parquet chain of Moscow stores. And already in June last year, having received patents for raised floors, Kardashev and Glukhovtsev applied for the protection of their rights to the operational-investigative bureau of the Ministry of Internal Affairs.

Further events developed with uncharacteristic swiftness for law enforcement agencies. Within three days, work was quickly done to identify violations in Kontal. The UBEP appeared at the firm, conducted an inspection, and an administrative case was initiated. In October, the case of the general director of Kontal became a criminal case.

However, the owners of the patents were ready to give up their claims if Office Skape entered into a license agreement with them and began to pay for each square meter of installed floor. Otherwise, they demand damages from the company: about one and a half million dollars. At the same time, warnings about illegal activity were sent out to ten or twenty other floor construction companies. The requirements are the same: to acquire a license from the patent holders. The construction market is in turmoil. Moscow firms, waiting for the outcome of the Weller case, lay low. It is difficult to say whether they rely more on patent law or luck. Companies are faced with a difficult choice: to pay out of nowhere to patent owners who have come from nowhere, or to take risks under the threat of criminal liability.

The case backfired even in Germany. There, the manufacturer of raised floors, Hans Lindner, told the local press: we are being blackmailed in Russia.

In Sergey Kardashev's office, the patents are framed and hang in the waiting room. There are also samples of products and photographs of workers laying floors.

Kardashev says that Michael Weller himself is to blame for this situation. In his opinion, he was doing business illegally in Russia, and therefore was not going to conclude a license agreement.

His companion Vsevolod Glukhovtsev adds: we are acting in the interests of Russia.

“Now they accuse us that there are a lot of counterfeit products in the country, they poke their noses in shit. But many rights are violated by foreigners. In England, Weller would have sat down long ago, - Glukhovtsev is sure, - but here he works quietly.

Secondly, the Weller case will bring revenue to the budget. But how? Now businessmen will seek to obtain patents for any product with which they have to deal. To avoid possible misunderstandings. The duty will generate income for the state.

In addition, the patent holders intend to build a plant in Russia, thus providing jobs. So to speak, a joint venture: on the part of Glukhovtsev and Kardashev - patents, on the part of foreign companies - funds.

“That's why they are dissatisfied,” says Glukhovtsev, referring to Hans Lindner, “they don't want to create production in our country.

The English citizen Weller not only defends himself, but also helps other Russian firms survive. If the court reaches a guilty verdict in the Scape Office case, entrepreneurs will have to pay the patent holders. Michael, out of English habit, relies on logic and common sense.

He intends to prove that the patents of Glukhovtsev and Kardashev are not new, and therefore must be declared invalid. (An engineer by training, over the past year the Englishman has also studied patent law quite well.) Weller provides evidence that his opponents take drawings for patenting from the Internet.

“Look, here is a mistake,” Michael compares the drawing printed from the Web with the patent of Kardashev and Glukhovtsev. - When they made a copy of it, they did not notice it and let it through. This leg is not balanced, it will not withstand the load, and the floor will simply fail.

He doesn't want to give up his business.

“If they want to put me in jail, let them. We will continue to fight. We will achieve the recognition of patents as invalid, and everyone will see the absurdity of the situation and the violation of fundamental constitutional rights.

True, Michael's partners, who have encountered the judicial system, advise him to "buy a license" and thus solve all problems.

— Yes, pay them, in the end.

- If we pay them we will pay forever (If we pay them now, we will always pay), Michael replies with dignity.

COMMENTARY

Alexey ZALESOV, patent attorney of Soyuzpatent:

There are two types of patents for technical solutions: invention and utility model. An invention is a radical innovation. A utility model is a small improvement of an already existing design, which has a novelty. Nevertheless, they are the same in legal force - in both cases, patent holders can demand deductions in their address under the threat of criminal sanctions. Only the duration of such patents differs (for an invention - twenty years, for a utility model - up to eight).

In principle, you can get a patent for a utility model for well-known things - from a ballpoint pen to a bicycle. A patent is issued without checking for novelty. But if it is proved that the object was in open use before registration, the patent will be declared invalid, that is, it did not exist legally. The paradox lies in the fact that under criminal prosecution a patent issued without any verification is for some reason considered valid. The accused, if he wants to justify himself, must himself prove the opposite. How this relates to constitutional principles is unclear. In addition, the Chamber for Patent Disputes in case of disputes on utility models takes into account open use only on the territory of Russia. And the widespread use in other countries is not taken into account. That is, if the bike has been ridden abroad, it can be considered new in Russia. And for violating the rights to such a patent, they may well be imprisoned.

Lawyer Dmitry SHASHKOV defending Weller:

- Concessions to the illegal, in my opinion, the requirements of the new patent owners will lead to the fact that they will be able to determine who to issue a license to install office floors (that is, the right to work), and who not. As a result, the billion-dollar market may be under their sole control, which will inevitably cause a sharp increase in prices.

REFERENCE "NEW"

The Swedish company Assa Abloy has been producing door locks since the 19th century. The company's turnover is about a billion dollars, and production is located around the world. The company was approached by a Russian inventor who said that he had a patent for the products he was making.

“They are very alarmed by this fact,” Michael Weller quipped.

Until the utility model patent was declared invalid, the production of a new SUV by GAZ OJSC was under threat. Many publishing houses breathed a sigh of relief after the invalidation of the patent rights received on the long-known folder for printed products with interchangeable blocks.

Some time ago, someone received a patent for a "self-defense pistol." The invention surprisingly resembled the Strazhnik pistol, which had been produced at the Izhevsk Arms Plant for several years, and the patent owner, without thinking twice, demanded that the use of his property be banned. Gunsmiths appealed to the Chamber of Patent Disputes and canceled the patent of the unlucky inventor. The honor of the plant was saved. The paradox, however, is that the Criminal Code explicitly provides for punishment for patent infringement. Before the patent was cancelled, directors of the arms factory could be convicted of stealing intellectual property. It is not clear how one can be condemned for the theft of something that is then considered invalid.