Exclusive rights to an object of intellectual property (IP) are transferred in full to the acquirer (Article 1234 of the Civil Code of the Russian Federation) under an alienation agreement. As a result, he is deprived of the right to use the IP object at his own discretion. However, if disputes arise with an unscrupulous purchaser, he has a chance to return them, if the alienation agreement is supplemented with an option. That is, the copyright holder will be able to get the lost exclusive right back in the future. One of the main reasons for reclaiming an IP object can be, for example, some external factors (for example, the occurrence of circumstances that limit the production of this object or its sale)

     For this in the alienation agreement it is necessary either enable option agreement (from the English option - in civil law this is the ability to choose a method of fulfilling an obligation or a preliminary agreement to conclude a contract in the future within the time frame specified by the parties) or enter into a separate option agreement in writing. (Part 2 of Article 429.2 of the Civil Code). It should be noted that if an agreement on the alienation of an exclusive right is subject to state registration, then a separate option agreement does not need to be registered.

     Option agreement in the field of intellectual property, being a preliminary agreement, can help to become familiar with the IP object in detail, assess the market situation in order to understand whether it is profitable or not to acquire exclusive rights to the IP object. That is, an option is an effective way to build commercial relationships in the modern market, develop market relationships and commercialize the results of intellectual activity.

Also, its main advantages include the ability of the copyright holder to return an object of intellectual property in the future and the absence of the ability of the acquirer to transfer exclusive rights to other persons. If the terms of the option are violated, the agreement may provide for penalties or other penalties

It is possible for the copyright holder to conclude ooption agreement (Civil Code of the Russian Federation Article 429.3) and an option to conclude a contract (Civil Code of the Russian Federation Article 429.2)which are different from each other. When concluding them, it is indicated that one party has the right to demand from the other the fulfillment of obligations for a certain fee, but their fulfillment may depend on the occurrence of certain conditions agreed upon by the parties, as a result of which a decision is made to conclude or refuse a contractual relationship within the framework of another license agreement.

     Option agreement in IP law is an independent contract and involves the choice of specific conditions that are fixed in it. The subject of an option agreement for IP objects may be their testing, evaluation, production of products using new technology, testing of new samples, which allows further decision-making to continue or not contractual relations in the future.

     More often, an option agreement is concluded in copyright when publishing works abroad. At the same time, the future buyer can study the work and its commercial value in the foreign market.

An option agreement can also be concluded during the commercialization of other IP objects. Its goal is to test the results of intellectual activity on the foreign market and evaluate them in terms of their profitability.

When transferring rights by option agreement on know-how, since the copyright holder is afraid of disclosing the information, it imposes an obligation of confidentiality and liability on both parties.

B option agreement regarding the transfer of inventions, there are no such risks as with know-how, but they can only exist if the inventions have not yet been patented.

Option agreement can also be concluded when transferring goods marked with a trademark. At the same time, the future buyer - investor can help its copyright holder at the initial stage with the release of goods, advertising and at the same time monitor the situation on the market in order to understand whether it is profitable or not to acquire rights to this IP object.

Fulfillment of obligations under a contract is associated with the commission of actions provided for in the contract or with their non-commission. Performance can be real and proper, which are closely related. It is so important that in actual execution the action specified in the contract is performed, and in case of proper execution, it is also important how it was carried out.

To ensure actual execution in accordance with Art. 310 of the Civil Code of the Russian Federation, paragraph 1, it is important to prevent a unilateral refusal to fulfill obligations or change its conditions. And to ensure proper execution, it is important that the proper person fulfills his obligations in the manner and manner fixed in the contract, as well as in due time (Article 309 of the Civil Code of the Russian Federation).

In the event that one of the parties has not fulfilled the conditions stipulated by the option agreement, it terminates its validity (Clause 1 of Article 429.3 of the Civil Code of the Russian Federation).

     An option to enter into a contract is usually is in the event that the acquirer has doubts regarding the acquired IP objects. In this case, one party, through an irrevocable offer, grants the other party the right to enter into an agreement/s on the terms provided for by the option. Option may be granted for monetary compensation or other obligations.

     In the event that option to conclude a contract for the acceptance of a proposal to conclude a contract (offer), the period is not set, it is considered equal to one year, but a longer period can be agreed upon with the possibility of its extension. Also option to conclude a contract may be included in another agreement, and rights may be assigned to another person, unless otherwise provided for by this agreement or does not follow from its essence, and also “contain conditions that make it possible to determine the subject and other essential conditions of the agreement to be concluded” (Article 429.2 of the Civil Code of the Russian Federation).

     Thus, an option to conclude a contract is an agreement to sell the right to conclude another contract, and an option contract is the right to demand under an already concluded contract. In both cases, option agreements in intellectual property law are especially in demand in the market for new goods, innovative technologies, etc., and their goal is to effectively manage the results of intellectual activity, their commercialization, attracting investors and business development.

Literature used

1. Civil Code of the Russian Federation Article 429.2. Option to conclude a contract

2. Civil Code of the Russian Federation Article 429.3. Option agreement

3. Rakhmatulina R.Sh. Fulfillment of obligations under an option agreement in the field of intellectual property / Education and Law, 2016, No. 1. P. 87 – 91;