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    Russia Establishes Specialised Court For Intellectual Property Rights

    Published on 1 March 2013 @ 4:05 pm

    By for Intellectual Property Watch

    As of 1 February 2013, a specialised court for intellectual property rights (the IPR Court) is instituted within the system of commercial (‘arbitrazh’) courts of the Russian Federation.

    The IPR Court was established by the Federal constitutional law of 6 December 2011 N 4-FKZ that amended the Federal constitutional law “On the Judicial System of the Russian Federation,” and the Federal constitutional law “On Commercial Courts of the Russian Federation.”

    According to Article 26.1 of the amended Federal constitutional law of 1 December 1996 N 1-FKZ “On the Judicial System of the Russian Federation”,

    [t]he court for intellectual property rights is a specialized commercial court that, within its competence, considers cases regarding protection of intellectual property rights as a court of first instance and cassation instance.”

    In a recent interview, Lyudmila Novoselova, the newly appointed head of the IPR Court, discussed the advantages of a specialised court and, generally, acclaimed the idea of specialisation, without which “we would still be enjoying wearing the clothes that we had sewn ourselves out of the animal skin.”

    According to Ms. Novoselova, experiences of other jurisdictions that have specialised IP courts have been studied and taken into consideration when elaborating the concept of the IPR Court of the Russian Federation. The German Federal Patent Court especially served as a model.

    (The video of the interview, in Russian, is available here)

    The Initiative

    In 2008, at the meeting of representatives of commercial courts, Anton Ivanov, head of the Supreme Commercial Court of the Russian Federation, presented the initiative of establishing a specialised court – the Patent Court – within the system of commercial courts of the Russian Federation. Later on, the concept of the specialised court was broadened to encompass jurisdiction over the cases related to other categories of intellectual property rights.

    Background

    The idea of setting up a specialised IPR court can be traced back to the Soviet Union times: the Law of the USSR of 31 May 1991, “On Inventions in the USSR” provided for the establishment of the Patent Court. Being introduced shortly before the collapse of the Soviet Union, the idea of the Patent Court was not implemented in practice, nor was the draft law “On Patent Court of the USSR” ever adopted.

    Upon the establishment of the Russian Federation, the idea of the Patent Court was revisited when drafting and adopting the new legislation, but the Patent Law of the RF of 23 September 1992 instituted another body: The Supreme Chamber for Patents of the Russian Federation, which had functions, inter alia, to consider appeals of the decisions of the Board of Appeals of the Rospatent and to grant compulsory non-exclusive licences.

    In 1997, the functions of the Supreme Chamber for Patents were transferred to the Russian Agency for Patents and Trademarks (presently, the Rospatent). Thus, the Supreme Chamber for Patents, as a separate entity, was abolished and the functions of reviewing the decisions on the grant or invalidation of protection for IPRs were vested within the same authority that had granted such rights.

    The Present System for Adjudicating IPR Disputes

    Currently, cases related to the protection of IPRs can be considered and resolved by courts (as provided under Article 1248 (1) of the Civil Code of the Russian Federation – CC RF). In practice, courts of general jurisdiction hear cases on IP if one of the parties is a natural person; whereas commercial (‘arbitrazh’) courts adjudicate disputes between legal entities.

    In certain cases prescribed by the law, disputes regarding protection for IPRs can be resolved by administrative procedure, e.g., cases related to: (i) the submission and examination of applications for patents on inventions, utility models, industrial designs, achievements of breeding, trademarks, service marks, and designations of places of origin of goods; (ii) the state registration of such results of intellectual activity and means of individualization; (iii) the issuance of the corresponding right-establishing documents; and (iv) contesting the grant of protection for these results of intellectual activity and means of individualization (Article 1248 (2) of the CC RF).

    In particular, the regulation of such disputes is within the competence of the Federal executive authority for intellectual property (presently, the Rospatent) and the Federal executive authority for achievements of breeding (presently, the Ministry of Agriculture of the Russian Federation).

    As far as patents on inventions, utility models, industrial designs as well as registrations of trademarks are concerned, decisions of the granting authority related to their protection can be contested by filing an objection at the Chamber for Patent Disputes, a subdivision of the Federal Institute for Industrial Property, which, in turn, is a subordinate institution within the Rospatent.

    The Jurisdiction of the New IPR Court

    As a specialised court, the new IPR Court has jurisdiction to adjudicate cases related to protection of intellectual property rights as a court of first instance and cassation instance.

    According to Article 43.3 of the amended Federal constitutional law of 28 April 1995 N 1-FKZ “On Commercial Courts in the Russian Federation,” as a court of first instance, the IPR Court has competence over the following exhaustive list of cases (unofficial translation):

    (1) cases on contesting legislative acts of federal executive authorities that affect a claimant’s rights and legitimate interests in relation to the protection of results of intellectual activity and means of individualization equal thereto, including patents, rights for achievements of breeding, integrated circuit layouts, secrets of production (know-how); rights for means of individualization of legal persons, goods, work, services, and enterprises; rights to use the results of intellectual activity within the system of unified technology;

    (2) cases regarding the grant or invalidation of the protection for results of intellectual activity and means of individualization equal thereto of legal persons, goods, work, services, and enterprises (except for author’s and neighboring rights and integrated circuit layouts), inter alia,

    - cases contesting non-normative legal acts, decisions, actions (lack of actions) of the federal executive authority for intellectual property (presently, the Rospatent); the federal executive authority for achievements of breeding (presently, the Ministry of Agriculture of the RF) and their officials, as well as the authorities empowered by the Government of the RF to consider applications for patents for secret inventions;

    - cases contesting decisions of the federal antimonopoly authority finding actions, related to acquisition of the exclusive right for means of individualization of judicial person, goods, work, services, and enterprises, as violating unfair competition law;

    - cases on determination of a patent holder;

    - cases on invalidation of a patent for an invention, utility model, industrial design or achievement of breeding; or of a decision to grant protection for a trademark, a designations of the place of origin, if the federal law does not provide for another procedure of their invalidation;

    - cases regarding cancellation of a trademark registration as a consequence of its nonuse.”

    Both categories of cases shall be heard by the IPR Court, irrespective of whether a party to a dispute is a natural person or a legal entity.

    As a court of cassation instance, the IPR Court has jurisdiction over

    (1) cases decided by it at first instance (at this stage, the case will be heard by the Court’s Presidium);

    (2) cases regarding protection of IPRs decided by commercial courts of the constituent entities of the Russian Federation at first instance and commercial appeal courts.

    The Commencement of Operations

    The IPR Court of the Russian Federation is expected to start functioning upon the official announcement of the decision of the Plenum of the Supreme Commercial Court of the Russian Federation on the commencement of operation. Currently, the judiciary is being formed that, in total, will consist of, at least, 30 judges.

    In the interview, the head of the IPR Court stated that the composition of the judiciary presents one of the main challenges as specialists with both, legal and technical, expertise are rare. According to Lyudmila Novoselova, although the technical background is desirable, it is not mandatory, and, when choosing between a judge experienced in cases on IPRs and a judge with good technical knowledge but without particular expertise in IP, the preference is likely to be given to the former.

    The IPR Court is located in Moscow. Future decisions are expected to be available on its website here (the English version is not activated yet): http://ipc.arbitr.ru/.

     

    Daria Kim may be reached at info@ip-watch.ch.

     

    Comments

    1. How to Stop China from Stealing Intellectual Property | To Inform is to Influence says:

      [...] Russia Establishes Specialised Court For Intellectual Property Rights (ip-watch.org) [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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