Answers for three previous questions.
Paragraph 2 of Article 1359 CC RF: the conduct of scientific study of a product or method in which the invention or utility model is utilized, or scientific study of a manufacture in which an industrial design is utilized or the conduct of an experiment on such a product, method, or manufacture; thus third parties without infringing the exclusive right can only study a patented object, but cannot utilize it as a mean o conducting a research.
Not considered as infringing the exclusive right: the conduct of scientific study of a product or method in which the invention or utility model is utilized, or scientific study of a manufacture in which an industrial design is utilized or the conduct of an experiment on such a product, method, or manufacture. This rule allows any person to make sure of the actual properties and characteristics declared in the description to the patent or in the rightholder's advertisement prior to contacting the rightholder and only after doing so to make a decision on reasonability of entering negotiations with the rightholder on purchasing the right of use of the invention.
This only refers to experiment or scientific research conducted on the patented product, method or manufacture themselves but not to experiment or scientific research conducted with their help. Thus the abovementioned rule does not imply commercialization of a patent-protected invention during the conduction of scientific experiment on an object containing the invention by third parties.
Paragraph 3 of Article 1359 CC RF: Not considered as infringing the exclusive right: the utilization of an invention, utility model, or industrial design in extraordinary circumstances (natural disasters, catastrophes, accidents) with notification of this use to the patent holder as soon as possible and with subsequent payment to him of proportionate compensation. The legislator does not limit scope of persons authorized to utilize patented objects without rightholder's pemit should the abovementioned circumstances arise, however such persons shall notify the rightholder about the utilization as soon as possible with subsequent payment to him of proportionate compensation.
This exclusion from the exclusive rights of a patent holder is attributed to the importance of an urgent use of an invention in public interest in case of extraordinary circumstances which should the necessity of preventing or recovering the consequences of natural disasters, catastrophes and other accidents. Also this exclusion from the exclusive rights concerns only extraordinary circumstances and does not extend to other accidents and disasters. Extraordinary circumstances are declared by public authorities of a particular country or by international organizations providing aid in such circumstances.
However the patent holder shall be notified of such use as soon as possible with subsequent payment of proportionate compensation to him. That regulation corresponds with Article 31 of the TRIPS Agreement. Russian jurisdiction lacks precedents on that matter at present. Also the legislator does not determine notification procedure of the patent holder of such use of an invention, utility model, or industrial design and does not declare neither the way of paying the compensation nor its time limitations.
Paragraph 4 of Article 1359 CC RF: Not considered as infringing the exclusive right: the utilization of an invention, utility model, or industrial design for the satisfaction of personal, family, home, or other needs not connected with entrepreneurial activity if the purpose of such utilization is not the receipt of profit or income. As defined in Paragraph 1 of Article 2 CC RF business activity shall be an independent activity, performed at one's own risk, aimed at systematically deriving a profit from the use of the property, the sale of commodities, the performance of work or the rendering of services by the persons, registered in this capacity in conformity with the law-established procedure. Also a citizen, engaged in business activities without forming a legal entity with the violation of the requirements of Item 1 of the present Article, shall have no right to refer, with respect to the deals he has thus effected, to the fact that he is not a businessman. That means that the primary criteria of an activity not recognized as infringing exclusive rights is it being non profit-seeking.
Thus the legislator protects the interests of those members of society who use the patented object without gains.
For example, a person can legally assemble and use a fishing tent the patent on which is held by another person, moreover the person's family and friends can also use the tent. However, selling such tent, even secondhand, with profit shall be recognized as infringement of the exclusive right of the patent holder.
When applying Article 1359 CC RF one should bear in mind that according to Paragraph 5 of Article 1229 CC RF the limitations on exclusive rights to results of intellectual activity are established on the condition that they do not cause unjustified harm to the ordinary use of the results of intellectual activity or means of individualization and do not impair in an unjustified manner the lawful interests of the rightholders.
