System of Means of Protection and Renewal of Violated Rights to Technology: Economic and Legal Aspec

Abstract

Problem setting. The main engine of economic growth is the scientific and production potential, based on the widespread introduction of advanced technologies embodied in the production sector of the economy, as evidenced by the results of economic development of the leading countries of the world. The massive spread of this phenomenon and the guarantee of certain consequences deprives our country of any other ways of growth and further improvement. But, having a significant scientific potential in many industries, domestic business entities do not use the legal mechanisms of technology transfer defined by the legislation of Ukraine. In our opinion, one of the reasons for this phenomenon is the imperfection of legal mechanisms to protect the rights and legitimate interests of developers and owners of rights to technology, which has a very negative impact on the actual spread of these public relations in the field of management.

Analysis of recent researches and publications in the work were investigated the works of scientists such as K. Y. Ivanova, O. V. Gladka, A. I. Denisov, etc.

Article’s main body. It is known that technology is a complex (synthetic) object of legal regulation, the individual components of which are endowed with the legal status of other objects of civil and economic turnover. Thus, among them there are objects of intellectual property rights, trade secrets, confidential information, know-how, innovations and other objects. The occurrence of these elements in the composition technology involves the possibility for the participants of technology transfer to use special means of protection of the rights of their possible violation and ways to protect and restore the violated rights established in the relevant industry-specific legislation. All means of protection of rights to technology on the source of their origin can be divided into those that are provided by the current legislation of Ukraine, as well as those that can be determined by the parties at the conclusion of contracts aimed at the development, implementation or transfer of rights to technology.

Under civil law can be distinguished: (1) material special legal means of protection of property rights from violations not involving possession (the claim on the prohibition of acts infringing the right of ownership – part 2 of article 386 of the civil code of Ukraine; replevin – 387-390 of the civil code of Ukraine; the claim about removal of obstacles in the implementation of the right to use and dispose of their property – article 391 of the civil code of Ukraine; the claim for recognition of ownership article 392 of the civil code of Ukraine); (2) other special ways to protect property rights from violations not related to ownership (illegal recognition of a legal act that violates the right of ownership – article 393 of the civil code of Ukraine; compensation for damage caused to the owner of land, houses and other buildings in connection with the reduction of their value – article 394 of the civil code of Ukraine). Within commercial law, article 217 of the commercial code of Ukraine established that In the field of management used such kinds of economic sanctions: damages; penalties; operatively-economic sanctions and administrative sanctions. All of these means of protection and restoration of violated rights can be called common, since they are offered for all economic and legal relations without exception, regardless of their orientation. At the same time, the inclusion of other objects in the technology, such as intellectual property rights, predetermines the possibility of using these remedies. They can be described as» derivatives « because they can be used only in the case where the technology is an object of intellectual property rights only in the framework of the protection of such a component, and not the technology as a whole.

Conclusions and prospects for development. (1) These shortcomings of existing protection and restoration of violated rights to the technology indicate the need for improvements and implement its own system of legal remedies and means of restoring the violated rights of subjects and participants of relations in the sphere of technology transfer. (2) Such a system should be built on state coercion, that is, mediated by procedures involving courts and public authorities, take into account the possibility of using operational and economic sanctions, foresee the negative consequences for the person found guilty of violating the right to technology for the most part of the property nature, to provide for the withdrawal of funds by which the right was violated on technology and the removal and transfer of the results of operations conducted with violation of the rights to the technology and the forced transfer of rights and obligations of the parties under the contract concluded by a person responsible for a violation of the rights to the technology. (3) The specified system of measures of protection and restoration of the violated rights shall be fixed in the special normative legal act at the level of the Law which would define the status of technology in the territory of Ukraine. (4) it is expedient to assign the Procedures of the state enforcement system to the system of bodies of the Antimonopoly Committee of Ukraine as a body authorized on behalf of the state to promptly eliminate violations of the rules of fair competition. (5) ensuring the effectiveness of judicial protection, it is necessary to provide appropriate remedies (subjects of claims) for the application of which the owners of rights to technology could apply to the appropriate judicial institutions.