The new frontier of Russian IP law
Russia’s Intellectual Property Court, which was established by presidential order on December 8, 2011, will begin hearing cases this year. The court’s chair Lyudmila Novosyolova told RAPSI’s Sergei Feklyunin about the court’s work and the current situation in the sphere of intellectual property disputes in Russia.
Officially, the court has already been established. When will it start working?
We need to have 15 judges to begin working properly; [in other words, we need half of the designated total of 30 judges]. Thirteen judges have been approved, and we are working to hire other staff. I think it would be realistic to expect the court to begin accepting cases in the second half of this year, after the Supreme Commercial Court deems that we have met all of the necessary conditions for dispensing justice. The Supreme Commercial Court will conduct a review before issuing a resolution to that effect.
What innovations do you plan to introduce? Are there any problems hindering your work?
As of now, we have many problems with software. We also need to divide the subjects of disputes into individual categories – trademarks, inventions, legal names, and so on – which we did not have before.
Furthermore, we plan to coordinate the databases of various agencies. We would like the databases of all agencies that are connected with intellectual property – the courts, the Federal Antimonopoly Service, the Federal Service for Intellectual Property, Patents and Trademarks, and the customs agencies – to be integrated so that anyone who opens a patent file in the register will also see all the related court disputes.
Some issues are common for all courts, such as staff. Where does one find good court scribes if the pay is low and the requirements are high?
Did you have any problems with judges?
Quite the contrary: there were 36 candidates for 20 vacancies during the first round of selection in August 2012. Since this is a new and complex sphere of law, our requirements for candidates were very tough. We needed to hire judges who are experienced but not yet approaching retirement age. We don’t want them to spend a long time learning the intricate details of this sphere of law and then retire.
It was proposed during the discussion of the bill on the IP Court that its judges have at least two university degrees each. Is it difficult to find such candidates?
Yes, very difficult. Still, we have hired several good judges with two university degrees, one in law and the other in technology. Judge Tatyana Vasilyeva initially majored in theoretical mechanics, and Judge Sergei Rogozhin has a degree in physics.
You were offered the position of judge on the European Court of Human Rights. Why did you withdraw your candidacy? Was it for family reasons or because you expected to be offered to chair the IP Court?
Personal considerations were certainly among the reasons, but the other consideration was important too. I had an opportunity to transition into a new kind of law. You know that psychologically a person cannot do the same job for more than five to seven years. Judges can do it, but they still get burnt out with time. I had worked in the Supreme Commercial Court for 20 years, and I wanted to try something completely different. Life is short, and if you want to lead a satisfying life, you need a strong purpose.
The law stipulates the formation of a corps of professionals at the court. How are you handling this?
It is one of the worst organizational nightmares. There are people who are willing to help the court, prominent respected professionals with patents in their sphere of activity. They are willing to help us even for little pay, but most of them are advanced in age. Professionals can only be employed in accordance with the rules set for government service, which means that I cannot hire people over the age of 65.
How much will you pay them?
Fifteen thousand rubles ($475) per month.
Do you think the institution of court professionals will be effective in these conditions?
I hope to resolve this issue by organizational means. Some experts are willing to work half-days, combining their work at the IP Court with their main job at research and educational establishments. Unfortunately, there are few such people.
Is the number of intellectual property disputes increasing or decreasing in Russia?
The number of disputes in 2012 were nearly double that of 2011. At the same time, the number of cases involving administrative sanctions has somewhat declined. The number of appeals of decisions and actions of the patent agency (Rospatent) has grown. Most disputes concern trademarks. There have been relatively few disputes on patent rights, but they are extremely complex and their number tends to grow.
The number of intellectual property disputes has been growing over the past few years, which is a global trend. The share of intellectual property in the companies’ portfolio keeps growing, while material assets are becoming less important.
The number of IP Court judges was set three or four years ago, when the law on the court was drafted. Do you need more judges in light of the growing number of intellectual property disputes?
The court should start working first. We will be able to decide by yearend, when we know what the judges’ caseload is. The present statistics on intellectual disputes do not capture the full picture. Several categories of disputes which the IP Court will hear are currently not included in the statistics at all. Moreover, many disputes are delegated to us from courts of general jurisdiction. I cannot say even roughly how many cases we will hear. We will know more by the end of the year, and then we will decide if 30 judges are enough to handle the caseload.
You plan to establish a mediation service at the court, although some say it has not caught on in Russia. Why do you think it can be effective at the IP Court?
I would not be so categorical about mediation in Russia. The Federal Commercial Court of the Urals Federal District, headquartered in Yekaterinburg, has a very strong mediation service, and the court’s judges say that it is a great help. I am absolutely sure that mediation is the future of the justice system and of conflict resolution in general.
As far as I know, it is sometimes cheaper to file a lawsuit than use the services of a mediator. Is this so?
We proceed from the assumption that mediating consultants will offer their services in court free of charge. They will work for their reputation in court and then their reputation will work for them out of court.
I think that in this situation people would again go to court, which would then send them back to mediators.
Why should they? In many cases legal costs are much higher than mediators’ fees. And it is for mediators to set the price, and they should do so wisely. We can only tell them that they can help us.
Lawyers take up mediation because it has become fashionable. There are lots and lots of mediators. Law firms have added mediation to their list of services in order to bring in more money. But no one can be sure they can mediate disputes professionally. It’s like what happened to arbitration in Russia, where a few black sheep have discredited the entire system.
Could you comment on rumors of a possible merger of commercial and general jurisdiction courts?
I have been hearing this for about seven years. What can I tell you? Commercial courts were established because we needed them. We needed courts that would be able to hear commercial disputes professionally. Compared to the largely negative views of the courts in general, lawyers and legal professionals in general have fewer complaints about commercial courts. All of them agree that these specialized courts handle disputes much more professionally.
As for the structure of the judicial system, this is a matter for politicians. But I don’t think it would be practical to merge these two elements of the system. I don’t know how it should be done up there. I’m not a politician. But down here we need clear divisions between areas of expertise. Otherwise we will destroy a good thing, and it is easier to destroy than to create.
Overall, our legal community should pay no attention to rumors. They make people, including judges, nervous. We should take special care of judges, who work in very complicated psychological conditions. I believe that anyone with new ideas should offer them up for public discussion.
Another pressing issue is competition among jurisdictions. Can we gain the upper hand on English law?
There are too many uncertain factors. We should analyze the statistics and thoroughly study the situation before concluding that Russian law has lost out to English law. There are respected centers that specialize in a specific category of cases. New York and London courts hear the majority of complex financial disputes, including cases that concern the securities market. It is not surprising then that English or US law arbitration is included in companies’ contract proviso. However, this does not mean that all large companies file their lawsuits there. I would be wary of such statements.