If the application concerned a secret invention, then the grant of a patent was carried out in secret without prior publication. According to the "Regulation on Inventions and Technical Improvements" adopted by a decision of the Council of People's Commissars of the USSR on April 9, 1931, the authors were given the right to choose either an copyright certificate or a patent. Inventions and improvements related to national defense were held secret. The author of the invention, which could have significance for state defense, was obliged to personally submit the application to the Invention Committee at the Service Station, or to the local body of the United State Political Administration, or to the local military administration for immediate referral in secret to the Invention Committee at the Service Station 3 /. In accordance with the Decree of the Council of People's Commissars of the USSR on March 5, 1941 4 / “On the Approval of the Regulations on Inventions and Technical Improvements”, the author of an invention or improvement that could be of importance to state defense is obliged to either personally submit the application to the People’s Commissariat of Defense, the Navy, or by affiliation to the People’s Commissariats Aviation Industry, Shipbuilding Industry, Armaments and Ammunition, or send an application in secret through the local authority of the People's Commissariat of State Security of the USSR to the corresponding People’s Commissariat. In the Regulation on discoveries, inventions and rationalization proposals approved by the Council of Ministers of April 24, 1959 No. 4359, the objects of secrecy were discoveries, inventions and rationalization proposals; secret patent documents were divided into simply secret and top secret 5 /.
To top-secret inventions there were more stringent regime requirements, including a special procedure for: classifying application materials; storage of application materials; record keeping; conducting scientific and technical expertise; access by third parties to the application materials. Moreover, in the 1959 Regulations, not only developments with purely military use, but also inventions from related branches of science and technology were considered as secret. At the same time, if applications for “ordinary” secret inventions, discoveries and rationalistic proposals were accepted and considered by the State Committee of the USSR, then only the Ministry of Defense of the USSR considered applications for completely secret patent documents. He was charged with the work of issuing copyright certificates to the use of these inventions, discoveries and innovation proposals and the payment of appropriate remuneration. Registration of top-secret inventions relating to new weapons, military equipment and their tactical use, patenting of inventions and selling licenses on the external market were made by the USSR State Committee of Inventions on the basis of a corresponding notification from the Ministry of Defense without presenting copyright materials and descriptions of the invention.
For the disclosure of information about secret discoveries, inventions and innovation proposals, the perpetrators were brought to criminal responsibility in the manner prescribed by law. The position on discoveries, inventions and rationalization proposals, approved by the Decree of the Council of Ministers of the USSR 21 in August 1973 No. 584, made a number of important additions and changes concerning the secret and top secret objects 6 /. The USSR State Committee for Inventions gave a part of authority not only to the Ministry of Defense, but also to a number of other ministries and departments, the list of which was approved by the USSR Council of Ministers. They had the right to accept and consider the materials of top-secret applications for inventions, discoveries and rationalization proposals related to new weapons. Registration of such inventions, discoveries and rationalization proposals and issuance of copyright certificates to them was also carried out by the USSR State Committee of Inventions on the basis of notifications from relevant ministries and departments without submission of application materials, but in necessary cases, the Chairman of the State Committee or his first deputy had the right to check the validity of decisions of ministries and departments on the issuance of copyright certificates. Such an order existed for more than thirty years and ceased to exist in 1991. This was primarily due to the enactment of the 31 Act of May 1991 of the year N 2213-1 “On Inventions in the USSR”, according to which inventions containing information whose disclosure could damage the security of a country should be classified in the manner prescribed Council of Ministers of the USSR. In connection with the collapse of the USSR, 7 / did not have time to develop such an order.
The fate of secret patent documents in the post-Soviet period was difficult. At the end of the 80-x - the beginning of the 90-ies in the USSR a heated debate began about the need for the continued existence of the institute of discovery protection. 1 June 1988 Pravda newspaper published a selection of letters from prominent Soviet scholars on this issue. The main arguments of opponents of the system of state registration of discoveries boiled down to the fact that such a system exists only in a small number of states and does not have recognition in the scientific world; that this system is bureaucratic in nature, takes a lot of time and effort of scientists, many of whom simply do not want to communicate with it, etc. Discoveries as special objects of intellectual property were mentioned in paragraph 4 of Art. 2 of the RSFSR Law of December 24 No. 1990-443 “On Property in the RSFSR” 1 / of 8. But formally, not one of the legal acts dedicated to discoveries was canceled, in practice the legal protection of discoveries had already disappeared by the beginning of 1992.
Secret rationalization proposals were not very lucky either; they were regulated in Russia only by departmental acts - by order of the Ministry of Defense of the Russian Federation from 17 June 1994 N 192 “On the improvement of technical creativity in the armed forces of the Russian Federation” and the Instruction on rationalization proposals in the Armed Forces of the Russian Federation approved by the Minister of Defense Of the Russian Federation from November 29 2004.9 /. According to these documents, an rationalization proposal containing secret information should be classified and considered in compliance with the secrecy regime requirements established in the Ministry of Defense of the Russian Federation. In the materials of the rationalization proposal it is not allowed to make references to secret industrial property objects, cite information revealing tactical and technical characteristics, principles of constructing secret models of armament and military equipment (IWT) that are in service (supply, operation) of the Armed Forces of the Russian Federation or in the stage developments, data on military units, the thematic focus and content of their work, and other information not related to the substance of the proposed solution.
Most of all lucky such secret patent documents as inventions. The system of norms of the Russian legislation on the protection of the rights of creators of secret inventions is based on the provisions of the Constitution of the Russian Federation, on the norms set forth in the Civil Code of the Russian Federation, as well as in Federal Laws of the Russian Federation “On Security”, “On State Secrets”, “On Information, Informatization and Protection of Information ". In accordance with Section 5, Article 3Patent Law of the Russian Federation of September 23 1992 No. 3517-I legal protection is not granted to inventions, utility models, industrial designs, recognized by the state as secret. As a result of the adoption of the Federal Law No. 07.02.2003-ФЗ “On Amendments and Additions to the Patent Law of the Russian Federation” from 22, secret inventions were granted a patent form of legal protection, including the implementation of an exclusive right in secrecy. This legal mechanism is implemented with 01.01.2004 10 /. The new 5 clause in the 2003 appendix prescribed that the provisions of the Patent Law apply to secret inventions, i.e. inventions containing information constituting a state secret.
Applications for the grant of a patent for secret inventions for which the degree of secrecy of "special importance" or "top secret" is established, as well as secret inventions that relate to weapons and military equipment and methods in the field of intelligence, counterintelligence and operational investigative activities and for which the degree of secrecy is “secret” is established, depending on their thematic affiliation, are submitted to the federal authorities authorized by the Government of the Russian Federation tionary power. Other applications for the grant of a patent for secret inventions are filed with the federal executive body on intellectual property. If, when considered by the federal executive authority for intellectual property, an application for an invention is established that the information contained therein is a state secret, the application for an invention is classified in accordance with the procedure established by legislation on state secrets and is considered an application for issuing a patent for secret invention. Publication of information about such an application is not carried out.
Registration of a secret invention in the State Register of Inventions of the Russian Federation and the grant of a patent for a secret invention are carried out by the federal executive body on intellectual property or, if the decision to grant a patent for a secret invention has been taken by the authorized body, by this body. With increasing secrecy of the invention, the federal executive authority on intellectual property transfers the application documents for the secret invention, depending on their subject matter, to the appropriate authorized body. With a decrease in the degree of secrecy of the invention, further consideration of the application for a secret invention is carried out by the same authorized body that considered the application. After declassifying the invention or notifying a specified person by the patent owner of the presence of a patent for the invention, the said person must stop using the patented invention or enter into a licensing agreement with the patent owner, except if there was a right of prior use. The application for the grant of a patent for a secret invention (application for a secret invention), the consideration of such an application and its handling are carried out in compliance with the legislation on state secrets (paragraph 1 Art. 1401 of the Civil Code) 11 /.
Under the State Secrets Act of 21.07.1993 N 5485-1, state secrets are state-protected information about its military, foreign policy, economic, intelligence, counterintelligence, and operational-search activities, the spread of which may damage the security of the Russian Federation 12 /. In Art. 5 of the said Law establishes a list of information constituting a state secret. In particular, these include: 1) information in the military field; 2) information in the field of economics, science and technology; 3) information in the field of foreign policy and economics; 4) information in the field of intelligence, counterintelligence and operational-search activities. The validity of classifying information as a state secret and classifying it is to establish, through peer review, the appropriateness of classifying specific information, the likely economic and other consequences of this act based on the balance of the vital interests of the state, society and citizens. The timeliness of attributing information to state secrets and their secrecy is to establish restrictions on the dissemination of this information from the moment they are received (developed) or in advance. Applications for secret inventions are submitted, depending on their subject matter, to the federal executive bodies authorized by the Government of the Russian Federation and are considered by these authorities, depending on the subject matter of the invention. One of such authorized bodies is the Ministry of Defense of the Russian Federation, in whose powers according to paragraph 51
Regulations on the Ministry of Defense of the Russian Federation (approved by Decree of the President of the Russian Federation of 16 August RF 2004 N 1082) includes "the organization of the consideration of applications and the grant of patents for secret inventions related to weapons and military equipment". Depending on the degree of secrecy and subject matter of the invention, applications are filed with various federal executive bodies, taking into account the “List of information classified as state secrets” approved by Presidential Decree 30 of November 1995 No. 1203 13./. There are about two dozen such bodies, including the Administration of the President of the Russian Federation, the Ministry of Internal Affairs, the Ministry of Defense, the Federal Security Service and others. Accordingly, in addition to the usual Russian patents, it is assumed “patents of the Presidential Administration of the Russian Federation”, “patents of the FSB”, etc. Each body establishes its own procedures for considering an application, registering a secret invention, challenging the decisions of the body and the patents granted to them. Own registers of secret inventions are kept. The action of the exclusive right arising from a patent for a secret invention in respect of third parties comes after their notification of the patent or after declassifying the invention. When state registration of a secret invention in accordance with paragraph 1 of Article 1402 of the Civil Code Rospatent or, if the decision to grant a patent for a secret invention is made by an authorized body, this body records the following information in the State Register of Inventions of the Russian Federation: registration number of a secret invention (patent number) ; the name of the federal executive body that made the decision to grant a patent for a secret invention; registration number of the application for the grant of a patent; the filing date of the patent application; starting date of the patent validity period; the priority date (s) of the secret invention; information about the author (authors) of the invention: surname, name, patronymic (in full), code (s) of the country (s) of his (their) place (s) of residence in accordance with WIPO Standard ST.3; information about the patent owner: last name, first name, patronymic (in full), name of the legal entity, its (their) place of residence, location, indicating the country code in accordance with WIPO standard ST.3. If the patent is issued in the name of the Russian Federation or a subject of the Russian Federation, the name of the state customer acting on behalf of the Russian Federation, the subject of the Russian Federation 14 / is additionally indicated.
1.SU, 1919. No. 34. Art. 341.
2.SZ 1924. No. 9. Art. 97.
3. NW. 1931. No. 21. Art. 180.
4. SP USSR. 1941, No. 9, Art. 150.
5. SP USSR 1959. No. 9, Art. 59.
6. SP USSR. 1973, No. 19. Art. 109.
7. Bulletin of the Congress of People's Deputies of the USSR and the Supreme Soviet of the USSR, 1991, N 25, Art. 703.
8. "Vedomosti SND RSFSR and AF RSFSR", 1990, N 30, Art. 416.
10.Patent Law of the Russian Federation from 23.09.1992 No.3517-1, enacted by 14.10.1992, with amendments and additions introduced by the Federal Law from 07.02.2003 No.22-ФЗ / Patent legislation of the Russian Federation. Collection of documents M., 2003.
11. Civil Code of the Russian Federation (Part Four) of 18.12.2006 N 230-ФЗ // РГ. 22.12.2006. N 289.
12. RF Law of 21.07.1993 N 5485-1 "On State Secrets" // RG. 21.09.1993. N 182.
13. The collection of legislation of the Russian Federation, 1995, N 49, Art. 4775 (Now is 21 09.2011).
14. On the approval of the military doctrine of the Russian Federation. Presidential Decree of 14.05.1998 N 556.
15./ Administrative regulation of the Federal Service for Intellectual Property, Patents and Trademarks to perform the state function of maintaining registers of registered objects of intellectual property, publishing information about registered objects of intellectual property, applications filed and patents and certificates issued for them, about action, termination and renewal of legal protection in respect of intellectual property, transfer of rights to stored objects of official registration of intellectual property. Approved by order from 12.12.2007 №346. M., 2008.