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Impact of WTO Accession on IP Regulation in Russia

OnDec. 16, 2011, WTO ministers adopted Russia's WTO terms ofentry atthe Eighth Ministerial Conference inGeneva. Provided Russia ratifies therequired documents byJune 15, 2012, andcompletes certain other formalities, it will finally become afully fledged member ofthe WTO.

This means that, after 18 years ofnegotiations, Russia andWTO members have atlong last reached agreements onthe major economic andlegal issues that previously barred Russia fromentry. Asignificant portion ofthose issues constituted intellectual property (IP) aspects. Furthermore, formany WTO members, thegrowing influence ofIP onthe Russian economy made resolving these issues crucial before accession could occur.

TheRussian government was forced toreview obsolete IP legislation andharmonize it with WTO regulations, resulting inthe adoption ofPart 4 ofthe Russian Federation Civil Code, which successfully addressed most, but not all, controversial IP issues. This article points tosome areas where theRussian government has already taken certain steps, but which still require improvement.

Court forIntellectual Property Rights

One ofthose areas is protection ofIP incourts. Russia's president noted that theimperfection ofthe court system will prove tobe anobstacle toRussia's WTO participation. Tothis end, theState Duma, during its last days before theelections, amended thefederal legislation tointroduce aspecialized court forIP rights. Thecourt will be created byFeb. 1, 2013, andwill consider IP cases as thecourt offirst andcassation instance. Thequestion still remains as towhether thejudges will be suitably qualified andwhether their number (30) will be enough toaddress IP issues forthe whole ofRussia. Furthermore, it is not clear why disputes concerned with copyright andneighboring rights as well as onprotection ofIP rights were left outside thecompetence ofa specialized court inthe first instance.

Protection ofPharmaceutical Test Data

OnNov. 19, 2006, Russia andthe United States agreed onthe Action forCritical IPR Issues, anintegral part ofthe U.S.-Russian WTO bilateral market access agreement. Pursuant tothis document, onOct. 11, 2010, Russia amended Federal Law No. 61-FZ "On Circulation ofMedicine Products," which, forall medicine products, prohibited use ofdata onresults ofclinical trials forcommercial or state registration purposes without consent within six years fromthe date ofa medicine's state registration.

This means that producers ofgeneric drugs, which are very popular inRussia, will have toeither negotiate theuse oftest data with theoriginal drug producers or conduct clinical trials independently, which is both time-consuming andcostly. Consequently, medicine prices will increase. Despite this, inthe event ofillegal use oftest data, theoriginal drug producer is unlikely even tobe granted theright toa specific claim fordamages or other civil law instruments since protection oftest data, forinstance as atrade secret, is quite doubtful. Violation ofthese provisions may result inadministrative or criminal liability, as well as removal ofthe offending drugs fromthe market.

Equal patent fees

Since 1993, Russia has always established different patent fees: one forresidents andanother (four times higher) fornonresidents. Although this was anobvious violation ofthe Paris Convention forProtection ofIndustrial Property, WIPO could not apply any sanctions against Russia. However, inlight ofWTO accession, onSept. 15, 2011, theRussian government canceled thediscriminating provisions andprovided instead forequal fees, effective fromthe date ofRussia's accession tothe WTO. However, patent fees, while now equal foreveryone, will increase onaverage by30 percent fora significant portion ofgovernment patent services.


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