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At trial

What level of expertise can a patent owner expect from the courts?

Usually judges are lawyers who do not have specialised knowledge in the field of technology or industry to which the patent belongs. Therefore, should specialised knowledge be required, the court will order an expert opinion. In this case, the parties are invited to propose particular experts and questions, but the final approval rests with the court. Therefore, the level of expertise depends on the circumstances of the case, the choice of both experts and questions, and other variable factors.

Are cases decided by one judge, a panel of judges or a jury?

At the first-instance court, there is typically one judge. Appeals are considered by a panel of three judges. There are no juries for patent trials in Russia.

If jury trials do exist, what is the process for deciding whether a case should be put to a jury?

There are no jury patent trials in Russia.

What role can and do expert witnesses play in proceedings?

Because judges usually have no technical background, the courts generally rely on expert witnesses. The plaintiff should insist that the court appoints an expert and propose a specific independent expert and questions that the expert witness should address. The opposing party has the right to propose another expert witness. The court will decide which expert to appoint depending on their qualifications and other aspects (eg, the fees charged by the expert witness).

Does your jurisdiction apply a doctrine of equivalents and, if so, how?

The doctrine of equivalents is applied to determine whether a patent is used in a specific product or process leading to patent infringement. Under Russian law, an invention is considered to be used in a product or method if the product or method uses every feature of the invention that has been specified in an independent claim thereof or a feature equivalent thereto. A feature will be considered equivalent if it has the same purpose and gives the same result as the patented feature in the independent claim.

Is it possible to obtain preliminary injunctions? If so, under what circumstances?

Preliminary injunctions are stipulated by the law, but in practice, courts infrequently grant preliminary injunctions.

The plaintiff is entitled to request a preliminary injunction, but it must be able to prove that in the absence of a preliminary injunction the court’s decision would be impossible to enforce. Because patent infringement is not typically evident nor easily understandable for a judge at the beginning of the process, and because the outcome of the proceedings is unpredictable, the judges tend to decline preliminary injunction requests, unless the evidence is overwhelming and self-explanatory.

How are issues around infringement and validity treated in your jurisdiction?

Infringement proceedings and the challenging of a patent’s validity are two different procedures. Both can exist in parallel – typically when one party initiates the infringement proceedings, the other party often tries to invalidate the patent in question.

Will courts consider decisions in cases involving similar issues from other jurisdictions?

Officially, the courts do not consider decisions from other jurisdictions. That said, the relative influence of the decision of a foreign court may be helpful, depending on:

  • the jurisdiction;
  • the similarity of the situation; and
  • the circumstances of the case in general.

More regularly, the lower courts are likely to consider prior decisions of higher courts in analogue cases (eg, in the appeal courts, the Cassation Court and the Supreme Court).

Damages and remedies

Can the successful party obtain costs from the losing party?

A successful party can recover costs from the losing party. The court determines recoverable costs on a case-by-case basis.

What are the typical remedies granted to a successful plaintiff?

A successful plaintiff will typically be awarded:

  • injunctions;
  • the recognition of a right;
  • damages (real or statutory);
  • the confiscation of infringing products; and
  • the publication of the court decision, if requested.

How are damages awards calculated? Are punitive damages available?

 A patent owner can and should claim damages. However, damages should be substantiated with accurate and authentic documentation, which is difficult in most cases. A patent owner can alternatively claim statutory damages for between Rb10,000 and Rb5 million, or twice the amount that the patent owner could have received if the infringer had signed a licence agreement. Patent owners are advised to carefully collect and safeguard all documentation that could prove the actual value of their patent (eg, all correspondence during negotiations, offers, draft contracts and proposals for licence agreements). Unsubstantiated claims are of no value in court.

The losing party must reimburse:

  • court expert fees;
  • official fees paid by the plaintiff; and
  • the other party’s reasonable attorney fees, which are determined by the court and are often based on local hourly rates and legal service agreements that the preveiling party is able to submit as evidence.

How common is it for courts to grant permanent injunctions to successful plaintiffs and under what circumstances will they do this?

Permanent injunctions are common in successful patent enforcement lawsuits.

Timescale and costs

How long does it take to obtain a decision at first instance and is it possible to expedite this process?

First-instance decisions are typically issued within six to 10 months.

How much should a litigant plan to pay to take a case through to a first-instance decision?

In general, the total cost of an average case is between €10,000 and €50,000, depending on:

  • the complexity of the case;
  • the experts used;
  • the number of hearings; and
  • other similar factors.

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