Russia's First Specialised Court for IP Rights

• Federal Constitutional Law No. 4-ФКЗ of 6 December 2011 “On Amending the Federal Constitutional Laws ‘On the Judicial System of the Russian Federation’ and ‘On State Arbitration Courts of the Russian Federation’ in Connection with Establishment of a Court for Intellectual Property Rights within the System of State Arbitration Courts” and
• Federal Law No. 422-ФЗ of 8 December 2011 “On Amending Certain Legislative Acts of the Russian Federation in connection with Establishment of a Court for Intellectual Property Rights within the System of State Arbitration Courts” have come into effect.

These legal acts provide for a specialized Court for Intellectual Property Rights (the IP Court) to be set up within the system of state arbitration courts to consider cases of establishment, exercise and protection of intellectual property rights. The laws define the IP Court’s status within the Russian judicial system and its terms of reference and introduce relevant amendments into the legislation of the Russian Federation. The IP Court is to be established by 1 February 2013, with the total number of arbitration court judges to increase by 30.

A new article added to the Federal Constitutional Law “On the Judicial System of the Russian Federation” qualifies the IP Court as a specialized state arbitration court considering, within its terms of reference as the court of first instance and cassation, disputes over IP rights protection.

In its newly added chapter, the Federal Constitutional Law “On State Arbitration Courts of the Russian Federation” specifies the powers, set-up procedure and proceedings for the new IP Court.

As a first instance court, the IP Court has jurisdiction over the following cases:

• challenge to regulations of federal executive authorities affecting rights and legitimate interests of the claimant pertaining to protection of intellectual products and means of identification;
• disputes over granting and discontinuing legal protection of intellectual products and means of identification (other than items protected by copyright and related rights, layout designs of integrated circuits), including:

• on contesting regulations, resolutions and actions of the federal executive body for intellectual property (currently Rospatent), the federal executive body for selective breeding achievements (the Russian Ministry of Agriculture) and their officials, as well as bodies authorized by the Russian Government to consider applications for secret invention patents (the Russian Ministry of Defence, Ministry of the Interior, Ministry for Healthcare and Social Development, Ministry for Industry and Trade, the Federal Security Service and Rosatom Nuclear Energy State Corporation);
• on contesting resolutions of the federal anti-trust body (currently the Federal Anti-monopoly Authority) recognising as unfair competition acts relating to acquisition of exclusive rights to means of identification;
• on identifying the patent proprietor;
• on invalidating patents for inventions, utility models, industrial designs or selective breeding achievements and resolutions on granting protection and exclusive rights to trade marks and appellations of origin;
• on early termination of trade mark protection owing to non-use.

The cases listed above will be considered by a panel of IP Court judges, irrespective of whether parties involved in the underlying relations are legal entities, independent entrepreneurs or individuals.

As a court of cassation, the IP Court has jurisdiction over the following cases:

• those it has considered as a first instance court (to be examined by the IP Court Presidium);
• on IP rights protection considered in the first instance by state arbitration courts of the Russian Federation and arbitration courts of appeal (to be examined by a panel of IP Court judges).

The IP Court is empowered to review effective judicial acts adopted thereby owing to new and newly discovered circumstances.

The Arbitration Procedure Code of the Russian Federation has been amended to include a provision to the effect that an appeal against an IP Court ruling adopted thereby in the first instance may be filed with the IP Court Presidium for consideration by the IP court of appeal within one month of the ruling date, unless another procedure or term is prescribed by the Code.

The Civil Code has been amended to specify the body competent to consider applications for early termination of trade mark protection: until the IP Court is launched, this will be the responsibility of (general) state arbitration courts instead of the Patent Dispute Chamber.

The new laws considered here also contain the following essential transitional provisions:

• Cases falling within the jurisdiction of the IP Court and being examined by general jurisdiction courts on the day the IP Court starts proceedings are to be considered by these general jurisdiction courts on the basis of civil procedure rules.
• Cases that fall within the jurisdiction of the IP Court by virtue of the Arbitration Procedure Code of Russia as amended by the above laws are to be considered by relevant courts accepting them for prosecution until the IP Court starts working.
• Consideration of cassation appeals accepted for prosecution by circuit federal arbitration courts and not considered thereby by the time the IP Court starts hearing cases is to be completed by these federal arbitration courts.

Applications filed by persons concerned with the Patent Dispute Chamber before 8 December 2011 and seeking early termination of legal protection of a trade mark owing to non-use will be heard by the Chamber, while those filed after this date and before the IP Court is operative will be considered by the Moscow Arbitration Court.