Revista
de la
Universidad
del Zulia
Fundada en 1947
por el Dr. Jesús Enrique Lossada
DEPÓSITO LEGAL ZU2020000153
Esta publicación científica en formato digital
es continuidad de la revista impresa
ISSN 0041-8811
E-ISSN 2665-0428
Ciencias
Sociales
y Arte
Año 14 N° 41
Septiembre - Diciembre 2023
Tercera Época
Maracaibo-Venezuela
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Legal Status of the National Intellectual Property Authority:
European Experience
Kateryna Troshkina*
Yevhen Sobol**
Oleksandr Yunin***
Serhii Shevchenko****
Dmytro Zadalia*****
ABSTRACT
The purpose of the scientific research is a detailed analysis of the organization and activity
of the national intellectual property body in European countries. The analysis of the
European experience of intellectual property bodies is a necessary foundation for the
Ukrainian mechanism in the context of the implementation of positive aspects and
integration into the European environment. Research methods were used: systematization,
comparative method, generalization; analysis and synthesis of ideas developed. On the basis
of the conducted analysis, taking into account the study of positive European experience,
recommendations were developed for possible implementation into national legislation in
the researched area. As a result of the conducted research, it was concluded that in such
European countries as Great Britain, France, Germany, Spain and Poland, a single universal
model of building national intellectual property bodies has not been developed; each State
has a special system of intellectual property bodies; at the same time, despite the diversity
of sub-departments and the organizational structure of the national intellectual property
bodies of each of these countries, there are several common features.
KEY WORDS: Intellectual property, European Union, country reports, legislation, legal
status.
* Volodymyr Vynnychenko Central Ukrainian State University, Kropyvnytskyi, Ukraine. ORCID:
https://orcid.org/0000-0002-1795-7234 E-mail: katerynareva@gmail.com
** Volodymyr Vynnychenko Central Ukrainian State University, Kropyvnytskyi, Ukraine. ORCID:
https://orcid.org/0000-0002-0804-8354. E-mail: 81sobol@gmail.com
*** Dnipropetrovsk State University of Internal Affairs, Dnipro, Ukraine. ORCID: https://orcid.org/0000-
0003-4846-2573 E-mail: junin@ukr.net
**** Dnipropetrovsk State University of Internal Affairs, Dnipro, Ukraine. ORCID: https://orcid.org/0000-
0003-4133-8860 E-mail: seregashev@ukr.net
***** Dnipropetrovsk State University of Internal Affairs, Dnipro, Ukraine. ORCID: https://orcid.org/0000-
0002-4212-1711 E-mail: Zadalia.dmitryi@gmail.com
Recibido: 29/03/2023 Aceptado: 16/05/2023
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Situación jurídica de la Autoridad Nacional de Propiedad Intelectual:
Experiencia europea
RESUMEN
El objetivo de la investigación científica es un análisis detallado de la organización y
actividad del organismo nacional de propiedad intelectual en los países europeos. El análisis
de la experiencia europea de los organismos de propiedad intelectual es una base necesaria
para el mecanismo ucraniano en el contexto de la implementación de los aspectos positivos
y la integración en el entorno europeo. Se utilizaron métodos de investigación:
sistematización, método comparativo, generalización; análisis y síntesis de ideas
desarrolladas. Sobre la base del análisis realizado, teniendo en cuenta el estudio de la
experiencia europea positiva, se desarrollaron recomendaciones para su posible
implementación en la legislación nacional en el área investigada. Como resultado de la
investigación realizada, se concluyó que en países europeos como Gran Bretaña, Francia,
Alemania, España y Polonia, no se ha desarrollado un modelo universal único para la
construcción de organismos nacionales de propiedad intelectual; cada Estado tiene un
sistema especial de órganos de propiedad intelectual; al mismo tiempo, a pesar de la
diversidad de subdepartamentos y la estructura organizativa de los órganos nacionales de
propiedad intelectual de cada uno de estos países, existen varias características comunes.
PALABRAS CLAVE: Propiedad intelectual, Unión Europea, informes de países, legislación,
régimen jurídico.
Introduction
The national mechanism for the formation and implementation of state policy in the
field of intellectual property is ensured, along with a high-quality legal basis, as well as an
effective permanent state authority. At present, such a system is only being formed and
balanced in Ukraine, and the present already presents our country with enough tasks both
at the national and international level. Actually, the analysis of the European experience of
intellectual property bodies, which dates back to the 19th century, is a necessary
foundation for the Ukrainian mechanism in the context of the implementation of positive
aspects and integration into the European environment.
The main purpose of the article is a detailed analysis of the organization and activity
of the national intellectual property body in European countries.
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1. Materials and methods
The methodological basis of scientific work is a set of general scientific and special
scientific methods and methods of cognition, which are comprehensively used to solve the
tasks set in the research. The research is based on the analysis of modern scientific
literature (Drapushko R., Horinov P., Filyk N. 2020; Boshytskyi Yu. 2020; Bulat E. 2019), as
well as current legal acts regulating the peculiarities of the legal status of the national body
on intellectual ownership in Ukrainian and European practice. The current legal acts of
Ukraine, as well as European countries such as Great Britain, France, Germany, Spain and
Poland, are analyzed.
Based on the analysis of legal acts of various European countries, it was established
that there is no single universal model of building national intellectual property bodies. As a
matter of fact, each state has a special system of intellectual property bodies. At the same
time, despite the diversity of sub-departments and the organizational structure of the
national intellectual property bodies of each of these countries, there are several common
features - regulation by the national institutional law, sub-department to one of the
governmental branch ministries, competitive selection of the staff (head and members, with
their division into qualified members and experts).
The structural-analytical method, methods of analysis and synthesis made it possible
to reveal the peculiarities of the national body on intellectual property, its legal status and
the main functions assigned to it.
In order to study the essence and peculiarities of the functioning of national bodies
on intellectual property issues in European countries, the methods of functional and system
analysis were used as one of the main methods of this work. Methods of classification and
grouping provided the possibility of classification of the main models of national bodies on
intellectual property issues. With the help of the system-analytical method, it is proved
that the national bodies on intellectual property issues in different countries should rely
only on competent rights and obligations in their activities and use in their activities the
means, forms, and methods provided for by the legislation during the adoption of the
relevant normative - legal acts.
In addition, research methods were used: systematization, the method of
comparative studies, generalization, content analysis, prognostic-legal, etc. On the basis of
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the conducted analysis, taking into account the study of positive European experience,
recommendations were developed for the possible implementation of certain provisions on
the functioning of national bodies on intellectual property issues into national legislation in
the researched field.
2. Results and discussion
The Law of Ukraine "On Amendments to Certain Laws of Ukraine Regarding the
Creation of a National Intellectual Property Authority" dated 16.06.2020 No. 703-IX made
significant adjustments to the structure of the state system of legal protection of
intellectual property, namely the establishment of the National Intellectual Property
Authority (hereinafter – NIPА) (Law of Ukraine, 2020).
Thus, NIPА is defined as a legal entity under public law (state organization)
belonging to the department of the Ministry of Economic Development, Trade and
Agriculture (Ministry of Economy).
In accordance with the provisions of the Law of Ukraine "On Amendments to Some
Laws of Ukraine Regarding the Creation of a National Intellectual Property Body" dated
June 16, 2020 No. 703-IX (On Amendments to Some Laws of Ukraine Regarding the
Creation of a National Intellectual Property Body, 2020), National an intellectual property
body is a state organization that is part of the state system of legal protection of intellectual
property, defined at the national level by the Cabinet of Ministers of Ukraine as the one
that exercises powers in the field of intellectual property, defined by this Law, other laws in
the field of intellectual property, acts of the central executive body authorities, which
ensures the formation and implementation of state policy in the field of intellectual
property, and by statute, and has the right to represent Ukraine in international and
regional organizations.
It should be noted that, in accordance with the legislation, the functions of the IPPR
are performed by a legal entity under public law (state organization), established by the
central executive body, which ensures the formation and implementation of state policy in
the field of intellectual property, and is determined by the Cabinet of Ministers of Ukraine.
Article 2 of the Law of Ukraine "On Amendments to Certain Laws of Ukraine
Regarding the Creation of a National Intellectual Property Authority" dated 16.06.2020 No.
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7 03-IX establishes that the functions of the IP are performed by a legal entity under public
law (state organization) established by the central executive body, which ensures the
formation and implementation of state policy in the field of intellectual property, and is
determined by the Cabinet of Ministers of Ukraine (Law of Ukraine, 2020).
In accordance with the set goal of activity, NIPА implements the following within
the limits of its powers:
- accepting applications, carrying out their examination, making decisions about
them;
- implementation of state registration of industrial designs and issuance of
certificates;
- recognition of industrial design rights as invalid in whole or in part in accordance
with the procedure provided for by law;
- publishing official information about industrial designs, maintaining the Register,
entering information into it, providing extracts and extracts in electronic and (or) paper
form;
- implementation of international cooperation in the field of legal protection of
intellectual property and representation of Ukraine's interests in matters of protection of
rights to industrial designs in the World Intellectual Property Organization and other
international organizations in accordance with legislation;
- training, certification and registration of representatives in intellectual property
matters (patent attorneys);
- maintaining the State Register of representatives in intellectual property matters
(patent attorneys);
- informing and providing explanations regarding the implementation of state policy
in the field of industrial design rights protection (Law of Ukraine, 2020).
For a long time, the functions of the National Intellectual Property Authority were
performed by the state enterprise "Ukrainian Intellectual Property Institute (Ukrpatent)"
(About the National Intellectual Property Authority, 2020). On November 8, 2022, the
order of the Cabinet of Ministers of Ukraine dated October 28, 2022 No. 943-r "Some issues
of the National Intellectual Property Authority" entered into force, by which the Ukrainian
National Office of Intellectual Property and Innovation (UNOIPI) was designated as an
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entity performing the functions of an IPIP. and the performance of these functions by the
State Enterprise "Ukrainian Institute of Intellectual Property" (Ukrpatent) has been
discontinued (Some Issues of the National Intellectual Property Authority, 2022).
Taking into account the above-mentioned novelties of the national mechanism for
the formation and implementation of national policy in the field of intellectual property, we
consider it necessary to investigate the nature and peculiarities of the functioning of similar
state bodies in the European plane, namely in such countries as Great Britain, France,
Germany, Spain, Poland and Portugal.
Thus, a clear and effective mechanism for the formation and implementation of state
policy in the field of intellectual property of Great Britain is provided by the Intellectual
Property Office, whose working title is the Patent Office (The Manual of Patent Practice
(MOPP) Explains the Intellectual Property Office's Practice Under the Patents Act, 1977).
The Intellectual Property Office is the UK's official government body that covers the
entire system of intellectual property elements, including patents, industrial designs, trade
marks and copyright.
It should be noted that the Office is an executive agency of the Department for
Business, Energy and Industrial Strategy, under which it is coordinated and funded.
In relation to the powers entrusted to it, the Office has direct administrative
responsibility for the examination and issuance or rejection of patents, as well as for the
maintenance of registers of intellectual property, including patents, industrial designs and
trademarks. As in most countries, the UK does not have a statutory register of copyright, so
the Office does not exercise any direct administration of copyright matters within its
mandate.
The Patent Office is headed by the Controller General of Patents, Industrial Designs
and Trademarks, who simultaneously performs the duties of the Registrar of Trademarks,
the Registrar of Industrial Designs, and the Office's Chief Executive Officer. The existence
of the Patent Office and the post of Comptroller-General is a requirement of the Patents
and Designs Act 1907 (although most other provisions of that Act have been repealed).
In addition, the legal basis for the activities of the Intellectual Property Office is the
Manual of Patent Practice, which establishes the relevant patent legislation and operational
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practice regarding patents (The Manual of Patent Practice (MOPP) Explains the
Intellectual Property Office's Practice Under the Patents Act, 1977).
Interestingly, the UK Patent Office, which is responsible for registering trademarks,
has recently launched a national intelligence database, TellPat, which is available to law
enforcement. Thus, expanding the scope of its competence and interaction with other state
authorities.
In France, the National Institute of Industrial Property is the national intellectual
property agency responsible for patents, trademarks and industrial design rights (Loi N 51-
444 Du 19 Avril 1951 Crйant Un Institut National De La Propriйtй Industrielle, 1951).
The activities of the National Institute of Industrial Property are aimed at the
economic development of the state by promoting innovations: registration and issuance of
industrial property rights (patents, trademarks, samples and models); reception and
processing of applications for geographical indications.
The institute provides innovators with comprehensive legal and technical
documentation through open national databases on patents, trademarks, designs and
models, as well as the National Register of Trade and Companies, which provides
equipment.
In addition, this body plays an important role in the development of industrial
property law and represents France in the competent community and international bodies
such as the World Intellectual Property Organization, the European Patent Office (or the
European Union Intellectual Property Office). The institute is the main relay in the fight
against counterfeiting, and is also responsible for the general secretariat of the National
Anti-Counterfeiting Committee.
The National Institute of Industrial Property was created on the basis of the Law on
the Creation of the National Institute of Industrial Property dated 19.04.1951 No. 51-444
under the Ministry of Industry and Trade of France and has its own legal personality and
financial independence (Loi N 51-444 Du 19 Avril 1951 Crйant Un Institut National De La
Propriйtй Industrielle, 1951).
In accordance with the assigned powers, the implementation of the envisaged
missions of the institute is ensured through:
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- centralization and distribution of all information necessary for the protection of
innovations and for the registration of companies, as well as the initiation of any actions to
increase awareness and education in these areas;
- application of laws and regulations regarding industrial property, commercial
register and companies, as well as commercial directory; for this purpose, the institute
ensures, in particular, the receipt of applications for industrial property titles or additions
to industrial property, their examination and their issuance or registration and control over
their preservation; it centralizes the trade register and the register of companies, the trade
directory and the official bulletin of civil and commercial announcements; it ensures the
dissemination of technical, commercial and financial information contained in industrial
property documents and centralized legal promulgation tools;
- legislative initiatives aimed at constant adaptation of national and international
legislation to the needs of innovators and businesses; in this regard, the Institute shall
propose to the Minister responsible for industrial property any reforms that are potentially
useful in these matters; the institute participates in the development of international
agreements, as well as in the representation of France in competent international
organizations (Loi N°51-444 Du 19 Avril 1951 Crйant Un Institut National De La Propriйtй
Industrielle, 1951).
As for Germany, the role of the national patent office is performed by the German
Patent and Trademark Office (Patentgesetz in der Fassung der Bekanntmachung, 1980).
The office is the central authority in the field of intellectual property protection in
Germany. Its duties include issuing patents for the registration of industrial designs,
trademarks and designs, as well as informing the public about existing industrial property
rights.
The German Patent and Trademark Office aims to inform the public, in particular
small and medium-sized enterprises, about intellectual property rights in general and their
limitations, as well as about the exercise and protection of these rights.
In carrying out its tasks, the German Patent and Trademark Office cooperates with
the intellectual property offices of other countries and regions, the European Patent
Organization, the Intellectual Property Office of the European Union and the World
Intellectual Property Organization. Cooperation also includes copyright issues.
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The recognized partner of the department in Germany itself is the Patent
Information Centers, united in the Association of Patent Information Centers of Germany.
Today, there are more than twenty such national patent information centers in Germany,
which are German institutions that provide services on intellectual property rights.
The legal basis for the activities of the German Patent and Trademark Office is the
German Patent Act. According to which, the German Patent and Trademark Office is an
independent higher federal body under the competence of the Federal Ministry of Justice
and Consumer Protection (Patentgesetz in der Fassung der Bekanntmachung, 1980).
The office consists of a president and other members who are eligible to hold judicial
positions under the German Judges Act (legally qualified members) or to be experts in the
field of technology (technical members). It should be emphasized that the members of the
department are appointed for life.
Their selection is quite specialized, which was established by us during the analysis
of German legislation. As a general rule, only those who have passed a state or academic
final exam in a technical or scientific subject at a university, technical or agricultural college
or mining academy in Germany, followed by at least five years in natural sciences or
technology and have the necessary legal knowledge . At the same time, final exams in
another member state of the European Union or in another member state of the Agreement
on the European Economic Area are equivalent to the internal final exam in accordance
with the legislation of the European Communities.
Along with Germany, the national mechanism of Spain for the formation and
implementation of national policy in the field of intellectual property protection is also
appropriate for comparative analysis.
Therefore, the Spanish Patent and Trademark Office is an autonomous agency of the
Spanish Ministry of Industry, Trade and Tourism that promotes and supports technological
and economic development by providing legal protection to various forms of industrial
property through the issuance of patents and utility models (inventions); industrial
samples (formation); trademarks and brand names and security documents on the topology
of semiconductor products. In addition, the department disseminates information on
various forms of industrial property protection.
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The activities of the Spanish office and its organization are regulated by Royal
Decree No. 1270/1997 dated 24.07.1970 (Real Decreto 1270/1997, De 24 De Julio, Por El Que
Se Regula La Oficina Espaсola De Patentes Y Marcas, 1970).
At the same time, please note that the Spanish Patent and Trademark Office has its
own legal personality and legal capacity to act to achieve its goals and is regulated by the
Spanish Law on the Creation of an Autonomous Body of the Register of Industrial Property
dated 02.05.1975 No. 17/1975 (Sobre Creaciуn Del Organismo Autуnomo "Registro De La
Propiedad Industrial", 1975). Therefore, based on the analysis of the above-mentioned law,
we conclude that as early as 1975 in Spain, the functioning of a separate decentralized entity
of state power in the field of intellectual property protection - the Register of Industrial
Property under the Ministry of Industrial Property of Spain - was started.
The Spanish Office of Patents and Trademarks is responsible for carrying out the
relevant state administrative activities in matters of industrial property in accordance with
current legislation and international conventions and is an instrument of technological
policy in this field.
To achieve this goal, the Spanish Patent and Trademark Office has the following
powers:
1. Administrative actions aimed at maintaining registration protection for various
manifestations of industrial property, inventions, topology of semiconductor products,
forms and distinctive signs, including processing and authorization of files, annotations for
evidence and preservation and publicity of documents.
2. Effectively disseminate registrable technological information on a regular basis
without prejudice to other types of special publications that are reasonably appropriate in
the field.
3. To apply, within the limits of its competence, the current international
conventions on industrial property, offering, if necessary, the participation and support of
Spain in international convention agreements that have not yet been implemented in Spain,
and in general to promote the development of international relations in this area.
4. To promote initiatives and develop activities aimed at increasing the level of
awareness and the most appropriate protection of industrial property, both at the national
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and international levels, and to maintain direct relations with any Spanish or foreign bodies
and organizations dealing with these matters.
5. To inform about draft laws or, in general, provisions that must be provided for by
national legislation.
6. To act as a mediation and arbitration body in disputes related to the application,
use, conclusion of contracts and protection of the right to objects of industrial property and
minor disputes.
7. Any other functions assigned by law to the Spanish Patent and Trademark Office
or those that will be directly assigned to it in the future within its competence.
Along with that, the department, which was created back in the 19th century, also
acts as an International Searching Authority and an International Preliminary Examining
Authority in accordance with the procedures established by the Patent Cooperation Treaty.
In addition, at the international level, the Office of Patents and Trademarks is
responsible for the presentation of Spain in various international forums and organizations
dealing with industrial and intellectual property issues.
In Poland, the Polish Patent Office is responsible for the national policy in the field of
intellectual property, which is the central body of state management in matters of
industrial property. The office reports to the Council of Ministers, and its activities are
supervised by the Minister responsible for the economy on behalf of the Council of
Ministers.
The legal basis of the activity of the Polish patent office is the resolution of the
Council of Ministers on the detailed scope of activity of the Patent Office of the Republic of
Poland dated 8.01.2002 No. 59 (Rozporządzenie Rady Ministrów Z Dnia 8 Stycznia 2002
R. W Sprawie Szczegółowego Zakresu Działania Urzędu Patentowego Rzeczypospolitej
Polskiej, 2002).
In accordance with the requirements of the said resolution, the Polish Patent Office
is the competent authority to make decisions on awarding subjects, national and foreign
patents, protection rights and registration rights.
It should be noted that the detailed scope of activities and powers of the Patent
Office includes:
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- receiving and considering applications for such items as: industrial property:
inventions, utility models, industrial designs, trademarks, geographical indications,
topography, integrated circuits, made for the purpose of obtaining protection, including
notifications made according to a special procedure regulated by international agreements ,
of which the Republic of Poland is a member;
- making a decision regarding the subjects of awarding national and foreign patents,
protection rights and registration rights, as well as issuing evidence to draw up notices and
documents confirming the granting of these rights;
- making decisions during the consideration of a dispute on issues determined by the
provisions of the Industrial Property Law;
- maintaining registers of issued patents, protection rights and registration rights, as
well as issuing extracts from these registers to interested persons;
- publication of an official body called "News of the Patent Office", which contains
official notices about issued patents, protection and registration of rights and information
about changes in their legal status, as well as judicial practice, clarification of regulatory
legal acts and statistical data in the field protection of industrial property;
- publication of an official body called "Bulletin of the Patent Office", which contains
an official announcement about claimed inventions, utility models and trademarks and
others.
The Chairman of the Patent Office is appointed by the Chairman of the Council of
Ministers from among persons selected through open and competitive recruitment, on the
proposal of the Minister responsible for the economy. The term of office of the President of
the Patent Office is 5 years from the date of appointment.
The head and deputies of the Patent Office are appointed and dismissed by the Prime
Minister. Appointment takes place through open and competitive recruitment. The Head of
the Office appoints experts who form a panel of experts on matters within the competence
of the Office.
Conclusions
Thus, the analysis of the features of the mechanism of formation and implementation
of state policy in the field of intellectual property shows that in such European countries as
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Great Britain, France, Germany, Spain and Poland, a single universal model of building
national intellectual property bodies has not been developed. As a matter of fact, each state
has a special system of intellectual property bodies. At the same time, despite the diversity
of sub-departments and the organizational structure of the national intellectual property
bodies of each of these countries, there are several common features - regulation by the
national institutional law, sub-department to one of the governmental branch ministries,
competitive selection of the staff (head and members, with their division into qualified
members and experts).
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509
Real decreto 1270/1997, de 24 de julio, por el que se regula la oficina espaсola de patentes y
marcas. Available online. In: https://www.boe.es/eli/es/rd/1997/07/24/1270/con
Consultation date: 2/11/2022
Rozporządzenie rady ministrów z dnia 8 stycznia 2002 r. W sprawie szczegółowego
zakresu działania urzędu patentowego rzeczypospolitej polskiej. Available online. In:
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20020080059 Consultation date:
2/11/2022
Sobre creaciуn del organismo autуnomo «Registro de la propiedad industrial». (1975).
Available online. In: https://www.boe.es/buscar/act.php?id=BOE-A-1975-9248.
Consultation date: 2/11/2022
The manual of patent practice (mopp) explains the intellectual property office's practice
under the patents act. (1977). Available online. In: https://www.gov.uk/guidance/manual-
of-patent-practice-mopp Consultation date: 2/11/2022
