The practice of patent rights restriction within articles 1360 and 1362 of the Civil Code of the Russian Federation

Abstract

Mechanisms for restricting patent rights without the consent of copyright holders are necessary and in-demand tools in modern conditions of the formation of the economy and security of the Russian Federation. The mechanisms are aimed at balancing the interests of business entities, society interested in providing innovative developments, and the state. The article shows that Russian national legislation complies with the TRIPS Agreement regarding the limitation of patent rights: Article 1360 of the Civil Code of the Russian Federation allows the use of an invention without the consent of the patent owner in the interests of defense and security, and Article 1362 of the Civil Code of the Russian Federation establishes the legal grounds for issuing compulsory licenses. The authors identify two mechanisms for restricting patent rights: in the form of an order from the Government of the Russian Federation and the issuance of a compulsory license by a court, and conduct a comprehensive analysis of them. Examples of the application of patent rights restrictions under Articles 1360 and 1362 of the Civil Code of the Russian Federation are given, on the basis of which it is concluded that compulsory licensing is a complex and lengthy procedure. The article proves that the optimal tool for meeting the needs for medicines is the restriction of patent rights in accordance with Article 1360 of the Civil Code of the Russian Federation. Based on law enforcement and judicial arbitration practice, the article examines the specifics of each legal model for restricting patent rights. In order to implement the provisions of Article 1360 of the Civil Code of the Russian Federation, it was proposed to form a subcommittee on the use of inventions, utility models and industrial designs in order to ensure the economic security of the Russian Federation under the Government Commission for Economic Development and Integration (hereinafter referred to as the Subcommittee). In this paper, the mechanisms of restriction of patent rights without the consent of copyright holders are studied, including within the framework of the work of the Subcommittee. Examples of the application of patent rights restrictions under Articles 1360 and 1362 of the Civil Code of the Russian Federation are given. The main mistakes that applicants make when drafting applications for the use of inventions, utility models and industrial designs without the consent of the patent holders have been identified.