The concept of lost profit as a component of the concept of losses in the field of intellectual property: a category of law and economics

Abstract

Keywords: forgone benefit, property rights of IP, object of IPR, subject of IPR, theright to own, use and dispose of IPR, contractual obligations, non-contractual legal relationships \nThearticle is devoted to the study and analysis of the legal and economic category of «lucrumcessans» (forgone benefit) in the property sphere and in the field of intellectualproperty (IP), as well as the author s attempt to define the concept of «forgone benefit»in the sphere of IP. It should be noted that the concept of «forgone benefit» is the maincomponent of the general concept of «damage» in the property sphere, where its definitionis contained in subparagraph 2) of paragraph 2 of Article 22 of the Civil Code ofUkraine. The article compares the concept of «forgone benefit» both in the propertysphere and in the sphere of IP in accordance with the economic and legal planes.First, «forgone benefit» are considered as unearned income in the property sphere.Further, we are talking about the criterion for the implementation of measures andpreparations as a fact to generate income in the production and sale of goods (services).The next important issue, which is covered in this article, is the problem of distinguishingbetween measures and preparations for obtaining income (profit) and reasonablemeasures to reduce losses. The next criterion includes the provision that the«forgone benefit» of the victim cannot be less than the income of the offender, which isone of the manifestations of the principle of Roman law.All of the above in relation to the economic category applies both to the propertysphere and to the sphere of IP. However, in relation to the legal category «forgone benefit» in the property sphere and in the sphere of IP has a complete difference, since itrefers to different subjects (in the property sphere, this is the owner of the thing, property,and in the sphere of IP — the subject of intellectual property rights (IPR) or a personto whom such rights have been transferred), objects (objects in the property sphere arevarious types of things, property, any material objects, and in the field of IP these are objectsof IPR) and rights (in the property sphere there are rights to things, rights to property, and in the field of IP — these are property rights to objects of IPR).Further, the author of the article gives terms from the field of IP, the availabilityof rights in the field of IP, dwells on cases of violation of non-contractual (tort)legal relations and violation of contractual legal relations (mainly violation of a licenseagreement).Based on the results of the material presented, the author of the article formulatesa definition of the concept of «forgone benefit» in the field of IP and proposes to includesuch a legal norm in the fourth book «Intellectual Property Law», Chapter 35«General Provisions on Intellectual Property Rights» of the Civil Code of Ukraine.The material of the article can be useful to employees of the Ministry of InternalAffairs, forensic experts, lawyers and patent attorneys and other persons working inthe field of law.