http://publications.lnu.edu.ua/bulletins/index.php/law/article/view/12284
Authors: Tarasenko Leonid ,   Львівський національний університет імені Івана Франка
Published: July 2024

The article considers the legal analysis of the protection of patent rights. The paper analyzes the ways of protecting intellectual property rights to inventions and utility models. It is established that in 2023 significant amendments were introduced to the Law of Ukraine "On the Protection of Rights to Inventions and Utility Models" regarding the protection of patent rights. It is proven that before the introduction of these legislative changes, in most cases, the most common method of protecting industrial property rights was the termination of the infringed right, instead, compensation for damages was only sometimes initiated by plaintiffs in this category of cases, but this method of protecting patent rights did not gain wide spread. It is substantiated that the Civil Code of Ukraine in Art. 432 delimits a one-time monetary payment in lieu of removal from civil circulation of goods manufactured or introduced into civil circulation in violation of intellectual property rights, materials and tools that were used mainly for the manufacture of goods in violation of intellectual property rights, and the destruction of such goods, materials and tools, and compensation instead of damages for improper use of an object of intellectual property rights. It is justified that it is necessary to synchronize the provisions of Art. 34 of the Law of Ukraine "On Protection of Rights to Inventions and Utility Models" and provisions of Art. 432 of the Civil Code of Ukraine. The need for compensation as a way to protect infringed patent rights (as well as industrial property rights in general) is proven. It is also stated that the combination of the use of compensatory methods of protection and preventive-terminating ones will enable the rights holders to effectively influence the violators and cause the risks of real property losses for them. It is established that the legislative amendments of 2023 not only improved the rules for charging compensation for infringement of patent rights, but also improved legal regulation regarding other ways of protecting intellectual property rights in general, and industrial property rights in particular, since Art. 432 of the Civil Code of Ukraine was editorially changed regarding almost all methods of protection, and the norms of special laws were brought into line with these provisions (with the exception of certain provisions). It is substantiated that within the protection of patent rights (regarding inventions, utility models, industrial designs) such methods of protection as the removal and destruction of counterfeit goods and the equipment on which they were produced are often also effective, since the holder of a patent for an invention, a utility model (certificates for industrial design) or another person who owns property rights to these objects of patent rights, wants not only to stop the infringement, but also to remove and destroy counterfeit copies of products (items), and even to remove and destroy the equipment on which such products were produced. It is established that the problematic aspects of proof in this category of cases are the identification of counterfeit products, their location, and the identification of the equipment on which such products were manufactured. Keywords: patent rights, patent, industrial property, damages, compensation, property rights