Russian IP Court

At the end of November, the Russian Federation Council approved the creation of an IP specialised Court

As we read in The Voice of Russia:

“This new judicial body will settle legal argument related to intellectual property and patent rights and will be staffed with 30 judges experiences in the relevant field as well as a number of specialists in specific fields, who will give expert opinions to help judges make a fair ruling.

Currently due to the understaffed field of intellectual property rights jurisprudence, vague knowledge of its specifics and not always present objectivity of those involved, intellectual property cases generally take up to several years to process, which is much longer than, for example, family or labor law disputes. Experts believe that the creation of such a judicial body will help offload regular courts that already have their hands full, and help process legal disputes much faster.”

Igor Sokolov, Maxim Gubanov and Leonid Zubarev report in Lexology that:

"The jurisdiction of the IP Court will include the following categories of disputes:

1. Challenges to the regulatory and legal acts of the federal executive authorities in the area of the protection of intellectual property rights, and concerning the rights and lawful interests of the applicant in the mentioned area;

2. Cases concerning the grant or termination of legal protection of intellectual property (except for copyright, neighbouring rights, and topologies of integrated microcircuits), including:

> challenges to non-normative acts, decisions and actions (including omissions) of Rospatent, federal executive body responsible for patenting genetic modifications in plants and animals2, as well as the federal executive bodies authorized to consider an application for a patent for a secret invention3 ;
> challenges to the decisions of the antimonopoly authority, recognising the acquisition of the exclusive right to the commercial branding of the legal entity, trademarks or service marks, as an act of unfair competition;
> the determination of patent holders;
> the invalidation of a patent for invention, utility model, industrial design or genetic innovations in plant varieties and animal breeds, a decision to grant legal protection to a trademark, appellation of origin and granting exclusive rights to this appellation, unless otherwise provided by law; and
> the early termination of legal protection for a trademark on the grounds of its non-use."

According to Rapsi Agency, this Court could start working on February 1, 2012.

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".