Background
Legislative amendments have been introduced to establish a specialised court dealing with IP disputes, sometimes referred to as a ‘Patent court’. On December 6 and December 8 2011 the president signed two laws in connection with the creation of the intellectual property Court. The laws introduced amendments to certain legislative acts, including the Law on the Judicial System, the Law on Arbitrazh Courts and the Law on the Status of Judges, as well as to the Arbitrazh Procedure Code.
The draft laws were prepared and introduced by the Supreme Arbitrazh Court, which considered that an increased number of cases involving IP rights justified the creation of a specialised IP court.
Jurisdiction
The IP Court will be a part of the system of arbitrazh (ie, commercial) courts. It will consider both:
- cases involving disputes over the establishment and validity of IP rights and challenges to regulatory and non-regulatory acts in the IP field (as a court of first instance);
- and IP infringement cases (as the court of cassation).
Within the first category of cases, the IP Court will have competence to consider cases concerning challenges to regulatory and non-regulatory acts in the IP field. Most such non-legislative acts are decisions by Rospatent, the Russian Patent office, that are associated with refusal of trademark registration or issuance of a Patent for an invention, utility model or industrial design, as well as for invalidation of a trademark registration or Patent. Appeals against decisions by the Federal Anti-monopoly Service on the recognition of acquisition of IP rights as an act of unfair competition will also be subject to the jurisdiction of the IP Court. copyright cases will be outside the scope of the new court’s jurisdiction.
The court will completely replace the Chamber for Patent Disputes as a forum for actions for trademark cancellation due to non-use. From December 9 2011 (ie, the official publication date of one of the laws) to the date when the IP Court begins operations, claims for trademark cancellation due to non-use are to be submitted to, and reviewed by, the Moscow Arbitrazh Court. Claims already filed with Rospatent before the official publication date of the law will be considered by Rospatent’s Chamber for Patent Disputes.
Appeals are not envisaged for decisions of the first category. IP Court decisions will come into force immediately, and may be appealed only by way of cassation appeal before the presidium of the IP Court.
Cases of the second category (ie, IP infringement cases) will be tried on their merits by the regular arbitrazh courts at first instance and on appeal. However, as with the first category of cases, cassation appeals will be considered by the presidium of the IP Court.
Effect on business
Russia is increasingly becoming an important market for international business. However, certain categories of IP case, especially Patent cases, have historically proved difficult for the regular court system.
The new IP Court, which is intended to be the final destination of all IP litigation in Russia (with the exception of copyright-related cases), is intended to be staffed by judges who specialise in various IP areas and supported by staff and offsite independent specialists. Its purpose is not only to improve the quality of decisions in IP cases, but also to bring much greater consistency to Russian court practice in that area, thus making the Russian IP environment more stable and attractive.
Entry into force
The laws came into force upon their official publication on December 8 and 9 2011. Under the new law, the IP Court should start operations no later than February 1 2013. The court will probably be located in Skolkovo, the state-sponsored innovation hub under construction near Moscow.
Eugene Arievich
Denis Khabarov
Baker & McKenzie - CIS Limited