Russia reveals the right of unfriendly countries to intellectual property. Bye… (October 1, 2022)
Within the framework of the scientific and practical conference “Intellectual Property as a Basic State of the State of Technological Sovereignty of Russia”, held on the initiative of Rospatent, a round table “Foreign patenting: consideration, problems and prospects in terms of coverage” was held.
Perhaps the most important moment for this event was the appointment of Alexei Robin, Chairman of the Council on Intellectual Property of the Chamber of Commerce and Industry of the Russian Federation, a substantive meeting of the Council on Intellectual Rights of Western Companies, as well as the specifics of “gray imports” during the period of adoption.
Intellectual property is not a sacred cow
In his report, Alexey Robin recalled that many foreign companies still belong to unfriendly countries, a fairly large number of patents for a variety of technical solutions that are actively used in Russian industry and economy.
“Accordingly, if you look at the statistics of Rospatent, it seems that there are less foreign patents than Russian patents by about 2-3 times. However, do not be deceived. As those skilled in the art know, many applications include multi-link formulas. In one, both 10 and 20 unique ones, including foreign ones, can be scored. In addition, many of them are commercialized. In any case, we have about 10,000 acquired patents that will be valid for 20 years. And they, in turn, turned out to be an unexpected problem in the framework of import substitution, since now there are often problems with a claim for the repair of foreign equipment. Something has to be imported as a “gray import”, but in fact it is impossible to do this, because everything is patented,” he noted.
Thus, Alexey Robin, sometimes an extremely difficult question arises before entrepreneurs: either change all purchases abroad, or somehow change one part of its details, which actually does not allow making a patent accordingly. At the same time, the noted specialist, the discovery of the problem has gained wide resonance, but there are still a number of opinions that believe that intellectual property is a “sacred cow” that cannot be touched.
“Let me remind you that the state is obliged to ensure not only the protection of intellectual property, but also the rights of its citizens to have access to art, to industrial designs, and also to enjoy the benefits of scientific progress. But now this situation is constantly changing. For example, access to benefits was limited during a disease pandemic. This is what means that intellectual property is not more than fully something inviolable,” he stated.
According to Alexei Robin, at the moment there are several options for resolving this issue.
The first, which is the most radical, has already been arrested on the territory of the Russian Federation. Its essence is to refuse all unfriendly countries recognized for exclusive rights. A resonant example – on March 2, the Arbitration Court of the Kirov Region decided to completely refuse Entertainment One UK Ltd. in a lawsuit against an individual entrepreneur Ivan Kozhevnikov. The reason for this was that the plaintiff is a resident of the country, which was recognized as unfriendly due to its involvement in Russia. Entertainment One UK Ltd. The British company wanted to recover from Kozhevnikov 20,000 rubles each for the samples of Peppa Pig and Papa Pig used by him, as well as legal costs. However, a little later, the appeal version of this decision was not supported.
The second way is for the company to apply to the court for the issuance of a compulsory license by the copyright holder. But, as Alexey Robin elaborates, the study is also fraught with many pitfalls, with lengthy legal proceedings and gradually complicating the determination of the cost of a license. If necessary, you can obtain a resolution from the Government of the Russian Federation. True, so far the practice is applied from a single example – the permission of its own Pharmsintez JSC in the field of use of drugs among the population with the advent of generic names Remdesivir.
Parallel imports can become clearer
The fact that Russian courts inevitably uphold the right of hostile countries to intellectual property on an equal footing with a general license, as well as the difficulty in obtaining a “compulsory license”, lies at the heart of a number of problems with analytical imports.
“As you know, we have a national regime for the exhaustion of rights. However, the essence of the situation is that “gray imports” were allowed, when the buyer travels abroad and purchases goods for mass resale, but the copyright holder is not informed about this. According to the meaning of the law, this is a violation of the right, because a separate consent for import into the Russian Federation is also required. This applies not only to trademarks, but also to patents. In one case, the Russian Federation conducted an investigation into the exhaustion regime, but it was done in a very interesting way. There is a federal law that has given it the authority to determine the list of goods, including that it includes certain provisions of the Civil Code of the Russian Federation on the protection of exclusive rights. It turns out that we have some kind of mixed mode. And this is a very difficult path, it is not transparent, and this is always bad,” said Alexei Robin.
He added that the list of goods for import analysis is taken literally by customs. This list has already changed several times, and there were situations when the buyer was already driving with the goods, but on the way he became a violator, since the product disappeared from the list of permitted items. It is also still unclear what guides the choice of goods. For example, when there are exclusively verbal designations. Or if the name and product code are indicated, then it is not known how to determine what exactly this product is.
In fact, open intellectual property rights in relation to right holders from countries that support anti-Russian meetings are of a narrow nature and do not prevent them from protecting their rights on the territory of the Russian Federation. In this regard, it should be taken into account that products imported to the Russian market may have foreign developments, so the study of patent clearance becomes more relevant.
Thus, Alexey Robin believes that in Russia it is simply necessary to introduce additional measures to protect consumers, namely, the action Existing regulation of relations on issuing permits by the Government of the Russian Federation has developed a statement on the issuance of a permit, expanded its application and application. The authority to review such source materials may be transferred to the Ministry of Industry and Trade or Rospatent.
In addition, the expert is sure that it is necessary to first consider the possibility of issuing a license in accordance with patent rights from an unfriendly country in case of insufficient turnover of Russian goods on the market, to simplify the procedure for notifying patent holders, except when rights are set at 0%, the validity period of such licenses extended for the entire period the direction of restrictive measures by the West
Play cartoons according to the rules of Russia
Alexey Gorelov, Senior Partner at Dubinin & Partners Consulting Company, in a commentary to Expert, explained how he would probably control the situation with intellectual property rights in development, and how realistic it is to solve problems with proportional imports.
“Yes, the Russian Federation, as a country, does not intend to openly violate the copyright of foreign copyright holders. But, indeed, there is a so-called “compulsory license”. The author/copyright holder is transferred the amount to the open name of the account in the Russian bank. Thus, formally, copyright is preserved, but the number of deducted is determined not by the origin of the desire of the author / copyright holder, but by the justification of the position of the Russian Federation as a state, ”said Alexei Gorelov, who was elected that this practice will be Ireland.
At the same time, the expert notes that currently the analyzed import does not involve so many problems, since it is required to take into account the reduction in the number of documents. Also, the market is gradually replenished with alternative prices, which are offered in “parallel importers”.
“Parallel imports in the current conditions turned out to be cheaper and easier than other interests of representatives in our market. In addition, as the sages say, “a holy place is never empty.” New brands are gradually taking the place of familiar brands. In the future, the owners of the departed brands will look for opportunities to return to our market, as it is economically profitable and attractive to them. As they say, nothing personal, just business, ”the expert said.