Importance of Introducing Forced Licensing in Russia

Head of FAS Department for Social Sphere and Trade was a speaker at the Gaidar Forum where he talked about the importance of introducing forced licensing.

Many international experts and scholars underline that excessive imbalanced protection of intellectual property can prevent development of innovations and scientific-and-technological progress. In this context, measures towards protecting intellectual property must be balanced by relevant opportunities, - stated Head of FAS Department for Control over Social Sphere and Trade, Timophei Nizhegorodtsev at the X Gaidar Forum.

On 17 January 2019, the Forum included a panel discussion: “Pharmaceutical intellectual property as a factor of achieving major social indicators and an instrument of access to the international market”. Attendees included representatives of the authorities, pharmaceutical associations and business.

Timophei Nizhegorodtsevquoted an opinion of experts on intellectual property law from Max Planck Institute: “Countries must use forced licensing depending on its economic, research and social development”.

Researchers, in particular, are confident, that development is often hampered by excessive protection of “innovations”, which can close access to research innovations. FAS points out that the mechanism of innovations protection must be balanced, particular, by possibility of forced licensing under particular conditions.

At the same time, Head of FAS Department for Control over Social Sphere and Trade pointed out that Russia currently lacks tools for practical use of forced licensing by the state.

There is a lot of work to do for us to balance the story related to abusing patent rights to the detriment of public interests. We must spell out again the rules, procedures and circumstances when the state can issue a forced license to a company to protect life and health of the population, - stated Timophei Nizhegorodtsev.

The speaker reminded that FAS has submitted a draft Federal Law “On amendments to Article 1360 of the Civil Code of the Russian Federation” to the Government. There are also vivid discussions of a draft Decree on clarifying the grounds for issuing permits to use inventions, industrial prototypes or utility models without consent of patent-holders by the Government of Russia in the interests of protecting life and health of the population. Adopting the drafts will be instrumental for pursuing some provision of the Road Map for developing competition in the healthcare sector¹.

The discussion participants also touched the theme of litigation between originators and Russian producers under the frame of protecting intellectual property. Representing the Antimonopoly Service, the speaker emphasized that in spite of good performance of institutions and procedures designed to protect patent rights, the prevalent problem in Russia is associated with injunctive remedies. Nevertheless, it does not require a legislative solution.

The attitude to patent dispute should be calm. All over the world, intellectual property protection is an adversary procedure. At the same time, to solve the issue of protecting innovations in patent contests between companies, FAS, together with Rospatent [Russian Federal Service for Intellectual Property], should hold discussion at the Supreme Court to consider broad applications of injunctive remedies in these cases. It will improve the situation right away simply because if injunctive remedies apply to the money obtained as a result of infringing the intellectual property rights, and then they are fully withdrawn and then there is an additional fine, the problem of economic consequences of infringing patent rights will dilute as smoke, - insists Timophei Nizhegorodtsev.

1. No. 618 Order of the President of the Russian Federation of 21 December 2017 approves 2018-2020 National Plan for Developing Competition in the Russian Federation. Under Clause 2 of the Plan, by 1 July 2018 the Government was required to approve the Action Plans for developing competition in 2018-2020 in different sectors of the economy in Russia, including the healthcare.

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