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Legislative Implementation of Flexibilities - Russian Federation

Title:Articles 1360 and 1362 of the Patent Act (Chapter 72)
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

Article 1360. Use of an Invention, Utility Model, or Industrial Design in the Interests of National Security

In the interests of national security the Government of the Russian Federation shall have the right to permit the use of an invention, utility model, or industrial design without the consent of the patent holder provided that he is notified as soon as possible and payment to him a reasonable remuneration.

Article 1362. Compulsory License to an Invention, Utility Model, or Industrial Design

1. If an invention or industrial design fails to be used or is insufficiently used by the patent holder during the four years from date of the issuance of a patent, or a utility model - during three years from the date of granting the patent, which leads to insufficient offer of respective goods, works or services on the market, any person willing and ready to use such invention, utility model, or industrial design, given the refusal of the patent holder to conclude with such a person a license contract on terms corresponding to common practice shall have the right to initiate a legal action against the patent holder for the granting of a compulsory simple (non-exclusive) license for the use within the territory of the Russian Federation of an invention, utility model, or industrial design. In the writ, this person shall indicate the proposed terms of the granting to him of such a license, including the scope of use of the invention, utility model, or industrial design, the amount, procedure, and terms of payments.

If the patent holder does not prove that nonuse or insufficient use by him of the invention, utility model, or industrial design is based on valid excuses, the court shall rule the granting of the license indicated in the first subparagraph of the present Paragraph and the terms of its granting. A total amount of payments for such a license shall be determined in the decision of the court on the level not lower than the cost of a license determined in similar cases.

The effect of a compulsory simple (nonexclusive) license may be terminated by judicial procedure on a suit initiated by the patent holder if the circumstances that resulted in granting of such a license cease to exist and their reappearance is unlikely. In such a case the court shall fix the time and procedure for termination of the compulsory simple (nonexclusive) license and of the rights that arose under this license.

2. If the patent holder cannot use the invention to which he has the exclusive right without infringing thereby the rights of the holder of another patent (the first patent) to an invention or utility model who has refused to conclude a license contract on terms corresponding to common practice, the patent holder shall have the right to initiate court action against the holder of the patent (the second patent) for the granting of a compulsory simple (nonexclusive) license for the use within the territory of the Russian Federation of the invention or utility model of the holder of the first patent. The terms of granting such a license proposed by the holder of the second patent, including the scope of use of the invention or utility model, the amount, procedure, and schedule of payments shall be indicated in the lawsuit. If this patent holder having the exclusive right to such a dependent invention proves that it is an important technical achievement and has a significant economic advantage over the invention or utility model of the holder of the first patent, the court shall rule the granting compulsory simple (nonexclusive) license. A right obtained under this license to use the invention protected by the first patent may not be transferred to other persons except in case of alienation of the second patent.

A total amount of payments for such a compulsory simple (nonexclusive) license shall must be determined in the decision court on the level not lower than the cost of a license determined in similar cases.

In the case of granting under the present Paragraph of a compulsory simple (nonexclusive) license, the holder of the patent for the invention or utility model, the right to use of which is granted on the basis of the aforesaid license shall also have the right to obtain a simple (nonexclusive) license for use of the dependent invention in connection with which the compulsory simple (nonexclusive) license was granted on terms corresponding to the common practice.

3. On the basis of the court ruling provided for by Paragraphs 1 and 2 of the present Article, the federal executive authority for intellectual property shall effect official registration of the compulsory simple (nonexclusive) license.

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