Invalidity Arguments in Infringing Action in Russia

Can I use arguments for invalidity as a defense in an infringing action brought in Russia by the patent’s owner?

The defendant in a patent infringement case brought to a Russian court can challenge the patent validity. However, since the Russian patent system is bifurcated, the defendant cannot assert invalidity of the patent in question to the infringement court, but has to initiate a separate proceeding at the Chamber for Patent Disputes in the Russian Patent and Trademark Office. Accordingly, infringement and invalidity of the patent at issue will be examined in separate proceedings.

The court judgment on the infringement suit is appealable to a local court of appeals and the appeal decision comes into force immediately. The decision of the court of appeals can be challenged before the Court for intellectual property rights as a cassation instance.

The decision of the Chamber for Patent Disputes on the patent’s validity is appealable to the Court for intellectual property rights, and its decision can be challenged before the Presidium of the same Court as a cassation instance.

Therefore, a judgment by an infringement court may come earlier than that by the Chamber for Patent Disputes, and an injunction could be enforced by a patentee even if the patent is invalidated later on.

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