Part 4 of the Civil Code of the Russian Federation, which regulates intellectual rights, contains a definition of an invention that is the subject of patent rights and is protected by law. This is recognized as “a technical solution in any field related to a product (in particular, a device, substance, microorganism strain, plant or animal cell culture) or method (the process of performing actions on a material object using material means), including the use of the product or a method for a specific purpose.” In addition, the law imposes a number of requirements on inventions that determine their protectability:
- novelty;
- industrial applicability;
- inventive step.
To determine whether an invention meets these requirements or not, a substantive examination is carried out, during which not only publicly available information is analyzed, but also all previously filed applications with the Federal Service for Intellectual Property, information on which has not yet been published. State registration of an invention is carried out only after receiving a positive result of the examination.
The following are not inventions according to Russian legislation:
- discoveries;
- scientific theories and mathematical methods;
- decisions relating only to the appearance of products and aimed at satisfying aesthetic needs;
- rules and methods of games, intellectual or economic activities;
- computer programs;
- decisions involving only the presentation of information;
- breeding achievements;
- topology of integrated circuits.
In addition, an application for a patent cannot be filed for intellectual property objects (IPOs) containing state secrets.
A patent for an invention is a document confirming exclusive rights to intellectual property. If personal non-property rights arise along with the creation of an invention and do not require compliance with formalities, then property - exclusive rights - require state registration and patenting. The author of an invention can only be an individual, and the right of authorship is unlimited and inalienable. The patent owner may not necessarily be the author; it can be any individual or legal entity. If a person who has received a patent for an object of intellectual property transfers its exclusive rights, this action must be registered with the Federal Service for Intellectual Property. The right to the invention is transferred to the new owner under an agreement on the alienation of the exclusive right.
Form 26.5-1
The patent application consists of five pages:
- title, for reporting identification information about an individual and the validity period;
- name of the type of activity;
- information about the place of business;
- information about vehicles (when choosing to transport goods and passengers);
- information about objects used in business (for leasing premises; retail trade; provision of catering services).
The first two pages are filled out by all applicants, and the pages containing information about transport or about trade and catering facilities are completed only when choosing the appropriate line of business.
The form is in editable PDF format. To fill it out correctly, it is recommended to use Acrobat Reader.
Checking the patentability of an invention
In addition to the formal examination, each application undergoes a substantive examination, which consists of the following:
- determination of the level of technology that will be used to assess the novelty and inventive step of the claimed object;
- checking the declared object for compliance with the requirements of the law (the invention must not contradict public interests, principles of humanity and morality);
- checking the declared object for compliance with the requirements for its patentability (previously we indicated which intellectual property rights are not recognized by law as inventions);
- checking the sufficiency of disclosure of the essence of the declared object.
Article 1386 of the Civil Code of the Russian Federation regulates the substantive examination. You can check the patent for an invention yourself using the Rospatent databases. Since patenting this intellectual property is an expensive and time-consuming procedure, you should make sure that your technical solution is truly unique before filing an application.
The substantive examination procedure proceeds as follows:
- if the application complies with the regulations, the applicant is notified of its acceptance for production by the relevant division of Rospatent;
- if, during the examination, inconsistencies with patentability requirements were identified, the applicant is sent a notification indicating these inconsistencies and an invitation to present his arguments on the grounds given in the notification;
- If the examination was carried out with a positive result, Rospatent makes a decision to grant the request for a patent and sends a corresponding notification to the applicant.
After paying the registration fee, information about the invention is published in a special bulletin of Rospatent, and the applicant receives a patent. The validity period of a patent for an invention begins from the filing date of the application and is 20 years. After this time, the intellectual property for which the patent was received becomes public domain. The priority of the intellectual property object is determined by the date of the application.
Fill out the form
Let's take a closer look at how to fill out the form to switch to PSN. We will prepare a patent application (sample filling) using the example of an entrepreneur planning to provide services to the public for repairing, cleaning and painting shoes in St. Petersburg. The stated period of activity is ten months. Let's start filling out a patent application (filling out sample) with the title page. We indicate registration data for individual entrepreneurs for 2021:
- individual number (TIN);
- INFS code at the place of activity;
- full name of the individual;
- registration number (OGRNIP), indicated only if the individual entrepreneur registration certificate has already been issued;
- patent start date;
- patent expiration date;
- number of completed sheets.
The lower left block is intended to confirm the entered information, indicate a contact phone number and the date of submission.
Please note: the permit cannot be issued for several years at once, maximum – for one calendar year. If you want to get an annual permit for PSN, then indicate 12 months, and the validity period is from the first of January. At the end of the current year, you will have to submit a new application.
On the next page, enter the full name of the type of activity and the identification code of the type of business activity. The code consists of six digits; to find it, you need to know the number of the selected business line in Article 346.43 of the Tax Code of the Russian Federation, as well as the region code.
For example, the serial number of shoe repair in this list is 02, and the code of St. Petersburg is 78. We look for this data in the classifier table and find the full identification code - 027801.
Below we indicate the availability of employees and their number. The last fields to fill out on this page are the tax rate. In general, it is equal to 6%, but in the tax holiday regime it is 0%. In Crimea, the rate is lower than in Russia as a whole. The field is filled in only if the rate differs from the standard one, about which there is a footnote at the bottom of the page. In addition, the details of the legal act that approved the reduced rate are indicated. In our example, the rate is standard, so the field is not filled in.
Of the following three pages, select only one, where we indicate additional information:
- barcode 0920 9046 – when choosing the direction of organizing the transportation of goods and passengers;
- barcode 0920 9053 – for retail, catering and rental;
- barcode 0920 9039 – for other areas of business.
In our case, the individual entrepreneur repairs shoes in a workshop. The address is filled out in accordance with the State Address Register (FIAS).
When filling out a patent application for other types of activities (trade, catering, transportation) there are some peculiarities. In this case, we recommend following the official instructions.
Terms of use of PSN
Let us distinguish two types of restrictions – general and special. General are restrictions that apply to all types of activities without exception. There are only two of them :
- The total income for 12 months for all types of individual entrepreneur activities cannot exceed 60 million rubles (clause 1, clause 6, article 346.45 of the Tax Code).
- The number of employees should not be more than 15 (clause 5 of Article 346.43 of the Tax Code).
Special restrictions are established both by the Tax Code and regional legislation and apply to a specific type of activity. There are a lot of them. For example, an individual entrepreneur can rent out only those premises that belong to him personally. Or, for example, catering services can only be provided in premises with an area of up to 50 m2.
Zero rate
The usual rate for PSN is 6%, but as part of the tax holiday, newly registered individual entrepreneurs have the right to work at a zero rate. The duration of the tax holiday can be up to two years, but in order to fall under this preferential regime, you must meet a number of conditions:
- be registered after the relevant regional law comes into force;
- choose the type of activity from those established by regional law (each subject of the Russian Federation establishes its own limited list);
- comply with other possible restrictions (on the number of employees or income received).
For the convenience of paying taxes and insurance premiums, we recommend opening a current account. Moreover, now many banks offer favorable conditions for opening and maintaining a current account.
Submission order
You can switch to PSN immediately upon registering an individual entrepreneur. To do this, completed Form 26.5-1 is submitted along with other registration documents. However, there is a nuance here that not all applicants are aware of.
The fact is that a patent is valid only in a certain territory. Until 2015, such a territory was recognized as a subject of the Russian Federation (region, territory, republic). At the same time, for all settlements of one region, a patent cost the same, regardless of where the entrepreneur does business - in a regional center, district center or village. Now the territory of action is the municipality, with the exception of such areas as road transportation and distribution (distribution) retail trade.
An entrepreneur can work throughout Russia, but he is registered with the inspectorate of the locality where he is registered. Let’s assume that registration with the Federal Tax Service takes place in Ryazan, and the individual entrepreneur plans to conduct business in the Moscow region. In this case, you must declare the transition to PSN to any municipal inspectorate at the place of activity, and only after a certificate of registration of the individual entrepreneur has been issued.
But if the place of registration and activity coincides, then the patent will be issued to you along with an individual entrepreneur certificate. There is an indication of this registration procedure in the Tax Code of the Russian Federation.
If an individual plans, from the date of his state registration as an individual entrepreneur, to carry out activities in a constituent entity of the Russian Federation, on the territory of which such a person is registered with the tax authority at his place of residence, an application for a patent is submitted simultaneously with the documents submitted during state registration. In this case, the validity of the patent issued to an individual entrepreneur begins from the day of its state registration. (from Article 346.45 of the Tax Code of the Russian Federation).
If, as in the example above, you plan to work for PSN not at your place of registration, then you must contact the tax office no later than 10 working days before the start of the proposed work. Prepare two copies, on one the inspection will leave a mark of acceptance. It is worth knowing that extradition will be refused if:
- the application indicates the line of business in respect of which the PSN does not apply;
- the validity period does not comply with the requirements of the Tax Code of the Russian Federation (indicated outside the calendar year, for example, from March 1, 2021 to February 1, 2022);
- the individual entrepreneur has arrears in payment for other patents;
- this year the right to a special regime has already been lost;
- in form 26.5-1 the required fields are not filled in.
If everything is in order, then you will receive permission to work for PSN in 5 working days.
What is an invention
In the broadest sense of the word, this is a technical solution to a problem that simplifies human life and raises the level of technology in general. The invention may relate to any field of human activity. The law narrows this concept by imposing some restrictions, which we have already mentioned above, and defining which results of intellectual activity are inventions from the point of view of patent law.
Registration of a patent for an invention is possible only if it represents a specific technical solution. Ideas, recommendations, suggestions are not an invention. Despite the fact that the law uses the word “technical”, this does not mean that only those inventions made in the field of technology are subject to protection. With the help of technical devices, problems can be solved in any field - medicine, agriculture, education, chemistry, etc.
