A new Russian subcommittee to review compulsory license requests

Russian Resolution No. 380 which came into force earlier this year established rules for preparing decisions on granting compulsory licenses and a subcommittee to review such requests. The Resolution also cancels Decree 299 of 6 March 2022 that provided 0% compensation for compulsory licensing for rights holders connected to “unfriendly states”.

The subcommittee has jurisdiction only if the grounds for requesting a compulsory license are the defence and security of the state or protection of the life and health of the population (Article 1360 of the Russian Civil Code).

The Minister of Economic Development chairs the subcommittee consisting of one representative from each of the Ministry of Economic Development, the Ministry of Industry and Trade, the Federal Antimonopoly Service, and the Russian Patent Office. The decisions of the subcommittee will be made by a simple majority of votes.

According to the established rules, an interested Russian legal entity can file a request for granting a compulsory license with the Ministry of Economic Development. The prerequisites are

– the patentee has refused to license the patent on general market conditions or has not responded to an offer for a license within 30 days

– the entity requesting a compulsory license has demonstrated that it has capabilities to produce and use the licensed invention

– the entity is obliged to pay the patent owner compensation in the amount of 0,5% of the revenue from goods or services produced using the licensed invention. Patent owners connected to “unfriendly states” will receive reimbursement in Russian rubles to a special “O” bank account.

If these prerequisites are met, the request will then be forwarded to the Ministry of Industry and Trade, the Federal Antimonopoly Service, the Russian Patent Office, and the relevant authority.

The above authorities will consider the submitted documents and prepare conclusions on whether it is possible to grant a compulsory license. If more than half of the conclusions contain a proposal to decide on granting a compulsory license, the Ministry of Economic Development will prepare a conclusion to be sent to the subcommittee with an attachment of a draft decision of the Government of the Russian Federation.

The subcommittee prepares a draft decision on granting a compulsory license based on the materials provided by the Ministry of Economic Development. The Government then considers the draft decision and the decision comes into force after the Prime Minister signs it. The decision can be appealed to the Russian Supreme Court.

Time will tell how the Ministry of Economic Development and the new subcommittee will assess compulsory license requests and whether they will issue well-reasoned decisions benefiting not only domestic manufacturers but also foreign companies. In any case, the established rules provide more clarity and transparency for applying and reviewing compulsory license requests under Article 1360.

Please note, however, that the Russian Arbitrazh Courts still have authority if a compulsory license is requested under Article 1362 of the Russian Civil Code due to non-use or insufficient use of an invention by the patentee, and for cases where compulsory licenses are requested by owners of dependent inventions.