Low-level protection drives up Russian patent litigation threat

Writing for International Law Office, Eugene A. Arievich (Baker & McKenzie - CIS Limited), in"Patently absurd? Fear of patent trolls drives protective utility model filings" (here), explains how the threat of patent trolls has driven some companies to extremes in their attempts to protect their rights. He teasingly asks:

"How many people would recognize this object?

"The vessel in cross-section features the boundaries of its outer and internal sides. At least on the outer boundary and/or the internal boundary, part of the boundary of at least one of the cross sections is executed as a fragment or a combination of fragments of a slanting conical cut of a right circular cone."

The description, he explains, comes from a patent filing for an ordinary bottle, adding that in Russia commercial parties have taken to patenting the most obvious things in order to protect themselves against patent trolls, whose tactics come close to a form of hostile takeover and redistribution of property. Although such wrongful practices are not new to Russia, Eugene observes that they thrive in the environment created by Russia's legal system.

After describing how patents can be obtained for inventions and utility models, he notes that many well-established law firms, eager to play safe and protect their clients' interests, have started obtaining utility model patents for almost anything imaginable ("Patenting a wooden stick for a lollipop might sound ridiculous, but such decisions simply recognize the precarious reality of patent law. Foreign companies must take patent searches seriously, as things that no one would think of patenting elsewhere in the world may need this form of legal protection in Russia").

The article concludes with a dire warning about the threat of a trip to court:

"Russian trolls pose a greater threat than their overseas equivalents because in addition to pursuing civil lawsuits, they press for criminal proceedings against the target company's management, often using underhand methods. For many years the chief representative of a UK company had to comply with a recognizance not to leave, merely because a group of Russian do-it-yourself enthusiasts had obtained a utility model patent for the suspended floors that the company had long manufactured, and had accused the company's management of wrongfully exploiting the technology in question.

In order for businesses in Russia to enjoy proper protection against patent trolls, a Supreme Arbitrazh Court decision is needed to resolve a particular case or review relevant practices in general. The court's position in previous litigation has been that as long as legal protection remains in force, a rights holder may uphold its rights by any lawful means. However, it makes sense for the courts to consider such cases in the context of the abuse of rights and the principle that a rights holder's goal should be commensurate with its efforts to obtain the patent. In the United States, litigation initiated by patent trolls is considered in light of this principle of proportionality. The approach allows the courts to discourage dishonest approaches and protect companies that invest in innovation".