The Patent in Russia Is Less Than a Patent

"The Russian newspaper" already wrote that according to international expert estimates Russia holds the 74th line in the world in terms of the level of provision of inventions protected by patents. There are no other developed countries with this index of creative activity. If the first index is the level of protection of issued patents, then the second one is the index of activity in obtaining patents. It appears that Russia invents little and does not protect the available inventions.

Enforcement of copyright is one of the painful points in the issue of Russia`s joining WTO. At stated the minister of economic development and trade Elvira Nabiullina in her speech at the meeting of the American-Russian business council, 'The illegal productions are being closed down, the control is being strengthened, and the legislation is being improved. While everyone understands that it is impossible to radically change the situation within a short term. The main thing is to ensure ongoing forward movement in the right direction. Legal strengthening of Russia`s obligations within WTO will strengthen and accelerate this movement.'

Meanwhile the issue of enforcement of patent rights in medicine, especially in segment of esthetic medicine, where it is more issue of protection of life and health of patients, is raised very rarely. The main danger of the situation is that the patent does not reflect all technological nuances and 'having borrowed' the technology, 'illegal' user does not get knowledge of details, know-how, and in medicine this may lead to irreversible consequences.

While the original holder of a patent has to undertake tremendous efforts related to ensuring of its legal protection and commercialization. Thus, the state represented by Rospatent grants a protection instrument for an invention to inventor. Under the law the invention has to meet conditions of patentability - have a novelty, an inventive step and an industrial applicability.

The patent holder, having received the patent, and paid for patent expert services, state duty for patent issuance and fee for maintenance of the patent in force, starts to build business around the patent, developing it on the basis of availability of protection instrument for intellectual property. The method is being registered within the ministry of health, and clinical study to ensure its efficiency and safety is being conducted. If a new method of treatment appears to be efficient, the patent holder and the author get international awards and recognition. The invention is in demand and starts to bring commercial results...

And at this time other medical centres, providing counterfeited services, appear. Naturally, the companies-infringers do not know all peculiarities of method of treatment, its know-how and use only visible by form parts of the method, lacking knowledge of the essence of treatment. In minimum, the rights of patent holder is being infringed, and in maximum a harm could be caused to a man`s health, who has applied this counterfeited service, and as a consequence, a discredit of the method takes place, which appears either non-effective or causes complications in the hands of unfair competitors, and in the result, irresistible harm to business reputation of the author and the patent holder is caused.

In the result, the patent holder seeks to enforce his rights and rights of his patients, collects evidence and applies to the state for protection, suing the infringers.

However, the common practice is that infringers trying to escape the responsibility and continue to unlawfully use patented method, are using the same state, and apply to the Chamber of patent disputes under Rospatent, appealing the earlier issued patent, having managed to question its industrial applicability while successfully continuing to use it in their practice. And for some reason it is a common case that the members of the Chamber of patent disputes considers the contested patent void. Often the reason for this is imperfection of the law and extremely aggressive methods of approaching the Patent Chamber.

In the result, the following legal collision takes place. The Chamber is the body of Rospatent, which being the federal body of power is mandated to enforce the rights. However, the interested persons using juridical tricks often force the Rospatent to revoke the decision made by it earlier. The decision on recognizing the patent void is executed immediately, and comes into effect immediately after being approved, and the inventor has nothing to do but to sue. While the legal proceedings are taking place, one can in fact with impunity apply this method.

Thus, Rospatent revoked the patent, which it issued earlier, and under the law it bears no responsibility for these actions. It is clear that the former patent holder will never be repaid for costs borne during the first registration, and the imperfection of the law creates a situation when it is easier for Rospatent to give in to pressure and stop effect of earlier issued patent, having become though indirectly the victim of manipulations of patent raiders. Sometimes the patent holders understand the Rospatent`s defenselessness as a policy of dual standards, since such decisions of the department in fact promote legalization of counterfeit.

As a rule, invalidation of a patent ruins business, the inventor`s name suffers and his business reputation is harmed. Moreover, from January 1, 2008 Part Four of the Civil Code of the RF comes into force, which requires adoption of a number of regulations and rules, under which Rospatent and subordinated departments will be working. Rospatent has submitted for discussion several regulations, including the one concerning review of objections for issuance of protection instruments. This regulation introduces a number of new points, but the main thing is that the Chamber of patent disputes being a federal state institution reserves itself a right to make the final sole decision on legality of issuance of protection instruments to the right holder, thus with a stroke of the pen in fact reversing the decision of the federal body of power, which issued the contested protection instrument.

Though, before making a decision a group of experts assesses the world novelty, inventive step, industrial applicability of the object of intellectual property. This is preceded by a multi-year correspondence, work of many specialists on study of a tremendous number of sources of information in the given field of science and technology. The decision on issuance of a patent is signed by a head of examination department and is approved by a head of a patent office. And when a patented invention is infringed, and a patent holders starts to defend his rights, the new regulation legally empowers three or four members of the Chamber of patent disputes after a short meeting to revoke the decision of the federal body of power, which issued a protection instrument, thus crossing out multi-year work of experts of patent office, the author and the right holder of intellectual property. As a result we have the vicious circle. On the one hand, the state is extremely interested in increasing the rate of patenting and claims its readiness to protect the rights of inventors, and on the other hand, the inventors are still unprotected vis-a vis 'patent raiders.'