Legal, Organizational and Methodological Challenges of Providing Forensic Support for Intellectual Property Protection

When examining legal, organizational and methodological issues of forensic expertise for the protection of intellectual property the most common forensic examinations are authorship investigation, computer forensic examination, phonoscopic, linguistic, engineering, patent examinations as well as examination of documents. Comparative analysis of the procedural status of an expert in various types of process and in the federal law “On State Forensic Expert Activities in the Russian Federation” is given. Specialist’s procedural position and the evidentiary value of the results of his participation in various types of proceedings in the cases of this category are analysed. Attention is paid to organizational and legal issues of conducting forensic examinations in non-state expert organizations. Based on the analysis of an array of expert opinions, specialists’ opinions and advice on issues related to intellectual property performed in more than 50 nongovernmental organizations positioning themselves as forensic and on monitoring of the websites of these organizations on the Internet, it has been established that the quality of opinions and consultations has little to do with the information provided on the sites. Scientists and specialists for whom forensic expert activity is not the primary one are often involved in conducting forensic examinations in these organizations. They do not know the basics of substantive and procedural law; they do not always realize the legal consequences of their opinions for the participants in court proceedings and exceed their competence. In context of a specific example typical mistakes in cases related to the protection of intellectual property often made by non-state experts are shown. Although the legislator declares the unity of the scientific and methodological approach to expert practice, professional training and the specialization of experts, these requirements often are not met. There is no unity of forensic expert techniques developed in different departments. For other participants in legal proceedings these techniques are practically inaccessible and their testing and implementation are still not often done at the interdepartmental level. The importance of the activities of the Technical Committee for Standardization TC 134 “Forensic examination” is emphasized.

intellectual property protection, forensic support, expert, specialist, forensic expert institution, expert competence, legal status of an expert

1. Novoselova L.A. (ed.). Intellectual property right. Vol. 1. General provisions. Textbook. Moscow: Statut, 2017. 512 p. (In Russ.)

2. Anastasi J. The new forensics: Investigating corporate fraud and the theft of intellectual property. Hoboken, N.J.: John Wiley & Sons, 2003. 270 p.

3. Omel’yanyukG.G., GulevskayaV.V., SavenkoA.S. Systematization of Intellectual Property Objects for Forensic Purposes. Theory and Practice of Forensic Science. 2019. Vol. 14. No. 1. P. 6–12. (In Russ.). https://doi.org/10.30764/1819-2785-2019-14-1-6-12

4. Jones P. Practical Forensic Digital Imaging: Applications and Techniques. Boca Raton, Fl: CRC Press, 2011. 402 p.

5. Rossinskaya E.R., Galyashina E.I. (eds.). Forensic expert activity: legal, theoretical and organizational support: A textbook for graduate school, specialty 12.00.12 “Criminalistics; forensic expert practice; police operations”. Moscow: Norma: Infra-M, 2017. 400 p. (In Russ.)

6. Rossinskaya E.R. On the Legal Status of the Forensic Expert. Courier of the Kutafin Moscow State Law University (MSAL). 2018. No. 7. P. 15– 24. (In Russ.). https://doi.org/10.17803/2311-5998.2018.47.7.015-024

7. Rossinskaya E.R., Galyashina E.I. Non-state forensic institutions, their legal status and organizational forms. Legality = Zakonnost’. 2009. No. 2. P. 28–32. (In Russ.)

8. Rossinskaya E.R. The challenges of legal regulations of non-state forensic institutions activities in the Russian Federation. “East-West: partnership in forensic expertise. Pressing issues of theory and practice of forensic expertise”. Materials of international scientific and practical conference. (Almaty, October 27, 2016). Almaty, 2016. P. 324–327. (In Russ.)

9. RossinskayaE.R. Theoretical and Organizational Technological Issues of New Kinds (Types) of Forensic Examinations. Actual Problems of Russian Law. 2018. No. 3 (88). P. 146–154. (In Russ.). https://doi.org/10.17803/1994-1471.2018.88.3.146-154

10. Rossinskaya E.R., Galyashina E.I., Zinin A.M. Theory of forensic expertise (forensic expertology) / E.R. Rossinskaya (ed.). 2nd ed. Moscow: Norma, 2017. 338 p. (In Russ.)

11. Dil’din Yu.M., Martynov V.V. (eds.). Model techniques of material evidence research. Part 1. Moscow: EKTs MVD Rossii, 2010. 586 p. (In Russ.)

12.