In response to a decree issued by the Russian Government[1] on 6 March, various media outlets have reported that Russia has effectively said its businesses can steal patents from anyone in ‘unfriendly’ countries. Whilst this may be an eye-catching headline, it fails to accurately report on some of the legal nuances which will be very relevant to IP holders alarmed at these claims.
Firstly, the message suggesting that Russian businesses would somehow be able to “steal” patents from anyone affiliated with an ‘unfriendly’ country is not accurate. This is because patents are territorial and Russia can only rule in relation to Russian patents. If your business has no interests in patents in Russia (e.g. as Proprietor or Licensee), then this change to Russian patent law does not affect your business.
Secondly, suggestions that patent infringement is being changed in Russia is not an accurate one. The change actually relates to compulsory licences[2]. A compulsory licence is a licence to work a patented invention and is awarded by the State - without the Patentee’s consent. Interestingly, many countries have the option of awarding compulsory licences as a useful contingency measure. For example, the UK has compulsory licences codified in Sections 48 to 54 of the Patents Act 1977[3].
The change that was made to the framework governing compulsory licences in Russia is the removal of financial compensation to Patentees affiliated with an ‘unfriendly’ country where a compulsory licence is awarded in Russia. Historically the Patentee would have received some measure of financial compensation.
This change would appear to be an attempt at thwarting the ‘unfriendly’ countries and, at the same time, supporting the Russian economy since it is expected that many such patented technologies are unlikely to remain available in Russia.
However, it is unclear whether this change will have significant effects in practice and will be highly dependent on the technology concerned. For example, the US sanctions imposed in 2019 against the Chinese company Huawei meant that Huawei was unable to obtain microchips since virtually all microchips manufactured anywhere in the world involve US technology. A similar effect may be seen here since the patented products or patented processes would need to be made/implemented in Russia. For certain technologies this may simply be impossible in the short term, and for some even in the long term.
References
- http://publication.pravo.gov.ru/Document/View/0001202203070005
- http://publication.pravo.gov.ru/Document/View/0001202203070001
- See here for further information: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/404696/ipo-foi-2014-425-compulsory-licences.pdf
