Letter from Dr Vladimir Buteyko, son of Konstantin Pavlovich Buteyko to all Buteyko practitioners regarding status of Buteyko patent and Buteyko trademark.


Several practitioners have informed me that they have received demands for payment for teaching the Buteyko Method. These demands have been accompanied by threats of legal prosecution for the supposed infringement of patent and trademarks. The practitioners have requested clarification OF WHAT GROUNDS THESE THREATS ARE BASED ON and how they can protect themselves against blackmail.

The clarifications that I will give may be used in their entirety by practitioners teaching the authentic (correct) Buteyko Method - i.e. the breath correction method, and not the pseudoscientific CO2 accumulation and infamous breathing gymnastics, breathing training devices and so on. The latter may also use those recommendations that do not concern the substance of the methodology.

No threats have been made in respect of copyright, so we will limit our discussion to patents and trademarks.

Patents

A specific feature of the Buteyko Method is that the essence of its application cannot be restricted by patents. This relates to the fact that Dr Buteyko understood the word method not to mean a technique as such but a methodology, i.e. a set of principles and rules that he discovered. Once these principles and rules are understood, they can be used to generate various sets of methods, techniques etc that are unique to each specific patient and to each specific situation.
At the same time, modern legislation is constructed in such a way that methodologies, sets of principles, theories and other such products of intellectual activity are not protected by law. Nor is it possible to patent the majority of methods and techniques used by practitioners as descriptions have long been available, i.e. published in accessible media such as books [1-5 and others].

Trademarks

The law provides for trademarks not to encourage market monopolies, but on the contrary to allow goods (and services) to be individualised. In other words, the aim of a trademark is to prevent confusion - i.e. to allow consumers to differentiate between the symbol of the services of one provider from the symbol of the services of another.
We should also bear in mind that laws were not created with blatantly dishonest people in mind.

It follows from the above that practitioners do not need to be afraid of threats if they take some elementary precautions.

What practitioners need to do

The root cause of fear is ignorance and uncertainty. The first step should be therefore be to study the documents used as threats against practitioners and the points of law relating to same. When writing about legislation, I will obviously have Russian law in mind. However, it is also evident that if laws in other countries do differ, it is only in tiny details and particulars.

Of course, to a person who has never been involved in legal proceedings, a claim submitted by another party to a court comes like a bolt from the blue. The mere accusation of breaking the law can be enough to disturb an honest persons equilibrium. However, if his conscience is clear, innocence can be proven with very little brainwork.
The fact is that the legal system is very amiably biased towards the defendant and not the claimant. In particular, in order for a court to initiate proceedings, the claimant must:
1. Provide EVIDENCE of his rights;
2. Provide CONCRETE EVIDENCE that his rights were infringed by the defendant.

Moreover, ANY DOUBTS are always interpreted IN FAVOUR OF THE DEFENDANT and not the claimant.

Now lets take a close look at the documents themselves, beginning with patents. According to my information, the threats from the intimidators make reference to patent RF No. 245171 (Appendix 1) for THE METHOD OF K.P. BUTEYKO FOR TREATING HYPOCARBIC DISEASES AND STATES, priority date 29.04.2004. If the patent is registered abroad, the practitioner needs to examine the version in force in his country.

Our first glance at the date and name of this patent completely reveals the dishonesty of its authors. How could they write The Method of K.P. Buteyko after Buteykos death, when the inventors are listed as Ludmila and her son Andrey (see point 72)? This immediately suggests that the patent was not filed in order to use and protect the method described but for entirely different purposes.

When we read the description of the invention, we see that the method is based on the MONITORING OF THE RATE OF CO2 INCREASE in exhaled air and MAINTENANCE OF THE RATE of its increase. I dont know about anyone else, but I dont know a single practitioner who would practise such nonsense as MONITORING AND MAINTAINING THE RATE OF CO2 INCREASE!!! From this it immediately follows that it would be IMPOSSIBLE TO PRESENT A COURT WITH EVIDENCE OF THE USE of this patent by normal practitioners.
And theres more! Look at point 56 of the patent! The book The Buteyko Method, Moscow, Patriot 1990 [4] is indicated as a similar invention. This means that any practitioner can state that he is using methods from that book, and not the patent. The practitioner doesnt need to present any proof that what he says is true - a reference to the book is already present in the patent presented to the court. In other words, the claimants need to present the court with ACTUAL evidence that you are using the infamous patent instead of the book. If you use other publications describing the methods that you use, you will need to show these publications to the court.
It is completely obvious that the circumstances described above will prove the impossibility of prosecution on the grounds of the patent. There is no doubt that the case will be stopped dead during the preliminary examination of the claim. The patent owners are probably aware of this as I have not heard of a single prosecution using this patent.

Lets now turn to trademarks.

I have heard of prosecutions using trademark no. 297512 (Appendix 2) with a priority date of 2004.05.04 which contains the protected textual element BUTEYKO [in Latin script]. The same symbol but using Cyrillic text in Russian was filed as No. 103540 (Appendix 3) with a priority date of 1991.10.24. These trademarks contains numerous indications of heinous violations of trademark legislation.

The most significant of these is the inclusion of words from the title of the class of services among protected elements of trademarks, as if these trademarks had been registered in order to individualise these services (see below). As it is impossible for any Buteyko practitioner to provide their service without using the word Buteyko, it is difficult for consumers to differentiate between one service provider and another. The trademarks themselves are constructed in such a way as to mislead consumers about the service provider.

It would be difficult to use these violations as a defence in a court of law. They could only be used in attempts to have trademarks cancelled or to oppose their registration in other countries.

I would again recall that the LEGAL purpose of trademarks (in our case) is to IDENTIFY SERVICES. Obviously, the trademark holders did not intend to call their service the Society Buteyko Ltd . It is impossible to imagine someone saying Come and see us. We will PERFORM a Society on you or We charge such-and-such for a Society and so on.

As with the patent, no-one intended to use these trademarks for their proper purpose!
It follows that it is easy to protect yourself from harassment in this instance as well, if you carefully study the trademarks and take precautionary measures.
To begin with, attention should be paid to point 526 Unprotected elements . It is clear from this point that the intimidators have tried to usurp the right to the surname Buteyko (Ludmila Novozhilova had the same aim in mind when she took advantage of the lack of Ukrainian legal restrictions to change her surname to Buteyko in around 1999). However, the trademark only restricts use of certain words in the name of services indicated in point 511. It is therefore sufficient for a practitioner to write the VLDB Method of the inventor K.P. Buteyko instead of the Buteyko Method to escape the trademarks as he is using the word Buteyko as the name of the inventor of a method (i.e. a person) and not of a service.

We also need to take a close look at point 511 ICGS classes and list of goods and services . In other words, this point indicates the area in which the trademark is valid. As is clearly stated, the trademark is only valid in the areas of classes 44 or 42 - medical aid or medical services, i.e. treatment of patients! (I dont know if the numbers of classes of goods and services are the same in other countries.) It follows that if a practitioner always writes training in the method rather than treatment by the method then he can distance himself still further from the areas to which these trademarks apply.

Priority rights are another obstacle to trademark infringement claims. If a practitioner has registered a company to provide services with a name that uses the word BUTEYKO (in either Cyrillic or Latin script) before the priority date of this and, correspondingly, any other trademark, he has the right to use this word regardless of the rights of the trademark owner. In other words, the company name and the trademark have equal legal force under international law (see the Paris Convention for the Protection of Industrial Property, signed by numerous countries). I would also recommend studying Article 10-bis of this convention as it deals with many aspects of this problem and could be actively used as part of a defence in court.

Moreover, internet domain names have the same legal force as trademarks in many countries. This means that a practitioner or company for which he works that has registered an internet domain name before 2004.05.25 that uses the word buteyko will be sufficiently protected from trademark No. 297512 for the Latin script.
Many practitioners and organisations could defend themselves using the article of the law on the exhaustion of rights of trademark owners. In other words, if a document exists where the trademark owner has previously allowed you to use this symbol, or a protected element from this symbol, he cannot then accuse you of infringing his rights to the same trademark. Etc., etc.

Conclusion

In conclusion I suggest that we all remember a very important rule regarding workings of the human consciousness. In same situations, a moral person always makes fewer mistakes than an immoral one, all things being equal. I hope that this will give honest and thoughtful practitioners confidence in their ability to stand up to dishonest threats and intimidation.

References

1. Ture Wallén. Ryska Hålso revolutionen. Stockholm. 1983-1984. 83 pages.
2. [K. P. Buteyko Instructions for the Application of the Voluntary Breath Normalization (VBN) Method. For the self-treatment of physicians: Preprint. - Novosibirsk, 1984.] [http://www.buteyko.ru/izdan/Buteyko_26_Instruction.pdf]
3. [K. P. Buteyko Instructions for the Application of the Voluntary Breath Normalization (VBN) Method. For Buteyko practitioners trained by the author: Preprint. - Novosibirsk, 1988.] [http://www.buteyko.ru/izdan/Buteyko_63_Instruction.pdf]
4. [Buteyko Method: Experience of introduction into medical practice. Collected papers. Compiled by K.P. Buteyko and A.E. Khoroshcho - Moscow, 1990. -224 p.] [http://www.buteyko.ru/izdan/metod_buteyko.zip]
5. [V.K. Buteyko, M.M. Buteyko Buteyko's theory of the key role of breathing in human health: scientific introduction to the Buteyko therapy for experts. Voronezh: Buteyko Co Ltd, 2005. 100p. - Rus. / Eng.] [http://www.buteyko.ru/izdan/Buteyko%20theory%20rus-eng.pdf]

Buteyko Papers

The following papers have been provided by Dr Vladimir Buteyko, the eldest son of Dr Konstanin Buteyko. Vladimir Konstantinovich Buteyko, Director of Buteyko Co Ltd (Voronezh) since 1991. He is at the same time senior lecturer at Voronezh State University, where he has been teaching since 1985. He holds the degree of the Candidate of Physical and Mathematical Sciences and is the author of more than 70 scientific publications, including 9 inventions. V.K. Buteyko is the elder son of K.P. Buteyko.

The mailing address: Buteyko Co Ltd, 7, pr. Revolutsii, Voronezh 394000, Russian Federation. Email: mail@buteyko.vrn.ru http://www.buteyko.ru.



Other publications include: