The mechanism being developed optimizes the application of the Civil Code provision. Thus, the sub-commission will operate on a “one-stop shop” principle for Russian companies to which foreign patent holders have unjustifiably denied the right to use inventions, utility models, and industrial designs.
The resolution also introduces changes to the methodology for determining the amount of compensation paid to the patent holder when a decision is made to use an invention, utility model, or industrial design without their consent, and the procedure for its payment. The payment will be 0.5% of the actual revenue from the use of the corresponding technical solution and, according to the President of Russia’s Decree, will be made through special ruble accounts of type “O,” which the applicant opens to transfer funds for using a particular patent.
“International treaties in the field of intellectual property provide a certain set of tools to restrict rights to intellectual property objects. And in exceptional cases, they allow their use without the consent of the rights holder. This is a global practice. Fine-tuning this mechanism in domestic law allows achieving socially significant goals without impairing the normal application of the law, maintaining a balance of interests, and simultaneously fulfilling our obligations under international agreements,” noted the head of Rospatent, Yuri Zubov.
As part of the general procedure, the Government of the Russian Federation makes decisions on the use of technologies for national security purposes without the consent of the rights holder according to the regulations. However, the federal center may not have information on the ground about the acute need of the country for technologies patented by rights holders from unfriendly states. In such cases, these rights holders cease supplying their products to Russia, upon which the economy and ordinary citizens depend, and refuse conscientious Russian companies requesting licenses from them and capable of producing deficit goods based on sought-after technologies. For such cases, a special procedure is established by the resolution, understandable and transparent for Russian organizations.
“For Russian manufacturers, a simple and understandable mechanism will be created to protect against the risks of supply cessation and refusals of licenses by foreign rights holders. In such cases, the sub-commission will be able to grant rights to use an invention, utility model, or industrial design without the consent of the patent holder, with notification and payment of proportionate compensation. This will become another important mechanism for ensuring technological sovereignty. Thus, the need of the industry for more than a thousand critically important components is met, including through reverse engineering support programs. And at the level of individual sectors, we stimulate the development of domestically important products – for example, analogs of patented drugs within the framework of the new ‘Products on the Shelf’ program,” emphasized the First Deputy Minister of Industry and Trade of the Russian Federation, Vasily Osmakov.
During the preparation of a decision to obtain the right to use someone else’s patent, the economic and production capabilities of the applicant for using the requested technology are verified. In addition, a conclusion is drawn on the presence in the Russian market of goods in which such invention, utility model, or industrial design has already been used, substitute goods. The correctness of the requested patents for the production of the proposed products, the state of competition, and in some cases, pricing in the relevant commodity market are analyzed. Special attention is paid to the significance of the technology for the relevant industry. If during the collegial examination of the application half or more of the government agencies support the proposed decision, it is submitted for consideration to the sub-commission.
According to the Resolution, a properly submitted application, filed with the Ministry of Economic Development of Russia in compliance with all necessary requirements and supported by more than half of the government agencies participating in the review, will be submitted to the sub-commission within 40 working days (this period may be extended by no more than 30 days in case of a special request from one of the government agencies).
The work of the sub-commission will allow restoring the balance of interests violated by the actions of unfriendly states in the relationships between rights holders and technology users.
Source: Ministry of Industry and Trade of Russia press service, 05.04.2024.
