Sample Term Paper on Differences in Obtaining Intellectual Property Rights and its Protection in Russian Federation and USA

1.0 Introduction

In recent times, departments dealing with international commerce and product development rely on sales across diverse nations in the world. The departments also rely on intellectual property licensing in order to protect their rights from companies engaged in the stiff competition. Thus, diverse global corporations have had to establish corporate offices across multiple nations comprising of design and sale teams spanning the globe. This has resulted to the world getting flatter while opportunities enlarge. Consequently, levels of competition are also larger and stiff. The licensing implications and the international intellectual property’s protection laws have been varying substantially from one country to another. The process of validating IP protection can be expensive as well as time consuming as several steps ought to be fulfilled.[1]

Conversely, the process of obtaining a patent is regarded as an incentive to spend time and money for the unique invention. For example, every person can decide to copy ideas without having to invest anything for their development. As a result, investors and inventors are bound to lack interest and desire to develop the ideas. This is despite the fact that global nations require different procedures when applying for patents. For example, global nations are required to apply for a patent search, affirm patent pending and claims, and identify individual patent ideas provided by diverse companies across the globe. Intellectual property can hence be regarded as the starting capital for a newly formed corporation. Consequently, the price of patented products can be much more profitable as competition is either lacking or low. It is however crucial noting that, the process of obtaining a utility, design or any other patent varies across global nations. This research study will therefore focus on United States and Russian Federation.[2]

1.1 Definition of a Patent

Intellectual property can be represented in three instruments namely, patents, copyrights or trademarks as they grant protection of intellectual property. The intellectual property however, serves three different purposes as they also differ in subject matter, field of application, and extent of protection. Conversely, they share a similar objective of balancing the interests of creators, inventors, and innovators as well as consumes for diverse types of intellectual works available in the society. Trademarks refer to words, signs, and symbols identifying certain products and companies. Trademarks seek to protect products’ and firms’ reputations in order to ensure preserve quality levels. Due to trademarks, patrons are offered the assurance required to purchase what is intended and necessitated. Trademarks are able to exist virtually indefinitely as long as they remain in use. Industries therefore rely on trademarks when recognizing their products and services. Conversely, copyright and neighboring rights ensure they guard unique works of authorship.[3]

Patents on the other hand consist of detailed depictions of the invention crucial in allowing persons to understand the invention and determine how it can be made or applied. A patent can have “claims” which are regarded as the special and unique distinctiveness of the product’s invention. The claims furthermore refer to the unique progression and/or a particular sort of blueprint of a creation. Thus, each patent claim defines the unique specifics of the innovation even though in several cases the inventors often think it is a unique idea where the product does not exist in nature. This promptly requires the patent office to easily argue those claims and disagree with “unique” claims. This however can be challenging to the patent office attempting to obtain a patent. Copyrights differ from patent protection as they solely protect expressions of intellectual creation. Copyrights therefore allow the ideas and techniques sophisticated in the title to be copied unreservedly by other interested parties.[4]

Every company and inventor attempts to fulfill one main purpose and goal which involves owning property rights of a specific idea. This requires either the company or/and creator to be provided with a patent by the United States Patent and Trademark Office in United States. The process of being issued with a patent is often similar in every country including United States and Russia. For example, the United States Patent and Trademark Office asserts that, the liberty granted by the patent award is similar or equal to the statute language applied when issuing a patent. This is due to the fact that, the patent provides a person or company with the right to exclude other parties from manufacturing, using, submitting for sale, selling, and importing the discovered subject matter with regards to parties located in United States. [5]

It is however crucial to note that, the rights provided through the issue of a patent can only be enforced from the date it has been issued. Manufacturers are required to disclose the patent number on each part of the product. Thus, even details considered to be either small or unnecessary ought to have the patent number especially if they are detachable or in case of two in one product. Some people and companies sell products in the market before obtaining a patent although they are required to have filed before commencing the process of selling the products even if the application is yet to be approved.  This has prompted manufacturers in several cases to write and confirm that the patent is pending on either the products or parts of the goods. It is also crucial to ensure the idea is not disclosed or sold even when the patent approval is pending as recommended by attorneys practicing in this field of law. Thus, enforcing a patent provides the sellers with authority to eliminate competitors by prohibiting them from manufacturing or duplicating as well as selling and importing the invention from overseas. It is clear that, getting hold of a patent from United States markets the patent’s provisions within the nation’s territories as the patent is protected by the intellectual property rights of the country.[6]

1.2 United States Patent and Trademark Office

The United States Patent and Trademark Office (USPTO) has been in practice for more than two hundred years as it is a governmental organization tasked with the accountability of awarding patents within United States.[7] Its main goal therefore involves providing inventors exclusive rights for their ideas and innovations. The United States Patent and Trademark Office also plays a major role in the scientific and hi- tech industries. For example, in 1881 the trademark registration had to be included to the purposes of the Patent Office.  Currently, the United States Patent and Trademark Office has been receiving more than three hundred and twenty-six thousand patent applications every year.[8]

The process of granting a patent through the United States Patent and Trademark Office has ensured more than six million patents are issued over the last two hundred years. United States Patent and Trademark Office is therefore based on strong believes striving to affirm that, patents support strong American inventors and innovators crucial in the growth of the nation’s economy. It should also be noted that, the United States Patent and Trademark Office is a major part of the United States Department of Commerce Economics and Statistics Administration, Bureau of the Census and the Bureau of Economic Analysis.[9] Thus, there are diverse programs and services United States Patent and Trademark Office are required to offer including the “IP Attaché Program”. The IP Attaché Program assists citizens and legal residents across United States including investors and the government to engage in international transactions. The program’s main goal is therefore to help in ensuring companies across United States companies. This research will however focus on the office granting patents to inventors and innovators from United States.[10]

1.3 The Russian Federation

The Federal Intellectual Property Service also known as Rospatent makes up the state registration of intellectual property objects. The registration and listing of patents in the Russian Federation is described as stringently synchronized in harmony with the law which consists of numerous stages. The stages include grounding of application, filing a patent application at the patent office, and undergoing formal or substantive examinations until the patent is awarded. The process of filing a patent application is however preceded by the suggested patent search procedure. The Russian decree has been suggesting that there are diverse types of patents valid in the Russian Federation which includes invention patent and utility model patent. It should be noted that, Russia has not been stable for a prolonged period of time. The unsteadiness can be dated back in the early 1900s. The Russian patent structure has therefore experienced diverse substantial changes.[11]

Researchers claim that, the modifications have not been in favor of local businesses. In 2009, the Russian Federation confirmed the resolute of joining the Patent Law Treaty. As a result, the practice of obtaining patent protection within the Russian Federation involves the discoverers and pacesetters filing a Russian patent application with the Returns of Investment patent Office. The Russian Federation however does not include other programs as the government lacks the interest to promote local businesses. As a result, the Russian government has been protecting foreign investors and innovators to some degree due to the fact that, local returns of investments are modest in comparison to big corporations. Conversely, the United States Patent and Trademark Office’s IP Attaché program strives to simplify the intellectual property rules internationally for the benefit of United States companies. With regards to United States law and protection of intellectual rights, a patent can only be valid and enforced in the United States and its territories. This requirement is also practiced across the Russian Federation. The rule applies to all types of patents existing in the country including the utility patent, design, plant patent, and reissue patent among others. In order for a patent to be issued and enforced, the claimed subject matter must be affirmed to be original and over the preceding art. This requirement is also observed in the Russian Federation as discussed below. [12]

2.0 Types of Patents
2.1 Utility Patent

The utility patent is regarded as the most common patent. As a result, almost ninety percent matters addressed by the United States Patent and Trademark Office are in line with utility patent. Utility patent is also known as the patent for invention as it protects inventions together with new processes and creative manufacturing procedures in addition to new-fangled products which do not exist on specific markets.[13] Utility patent is therefore issued after original and functional developments, machines, compositions of matter, and creations have been invented. Issuing a utility patent permits the owners of the inventions to exclude other parties from employing, advertising, and even attempting to make a similar innovation for a period of twenty years. The twenty-year period commences immediately the owner of the patent files the patent application and paid the maintenance damages. [14]

2.2 Design Patent

The design Patent is issued when an original, creative, and patterned design is personified or applied to an article of construct. Design patent therefore plays the similar role of the utility patent. Through the design patent, the holder is awarded the right to exclude other parties from making, promoting, and utilizing the design. Design patent is therefore a form of ownership rights for the design new, original, and unique/creative design for product or anything that can be redesigned. This patent is however much more simplified in process thus, less expensive, as there are no maintenance fees. Design patents are awarded to innovators who have filed applications. The applications filed before May 13th 2015 were approved for a period of fourteen years. This requirement however changed as it was stated that, applications that were filed on or after May 2015 will be valid and enforceable for a period of fifteen years from the date of grant. [15]

2.3 Plant Patent

A Plant Patent refers to rights awarded for a new and distinct invention. As it is a patent protecting invention of newly found plants including mutants and hybrids. Plant patent should however be denied for a plant which is in an uncultivated state. The plant patent therefore also issued for invented or revealed asexually reproduced plants including cultivated sports, hybrids, and mutants. Plant patent is also issued for recently established seedlings except tuber propagated plants. The plant patent allows the owner of the creations to ensure other parties do not utilize, advertise, or make the plants. Plant patent is applicable and enforceable for a period of up to twenty years. The validity interlude commences since the date the patent application is filled and filed. Just like designs patent, plant patents also do not need maintenance fees.[16]

2.4 Reissue Patent

The reissue patent is often offered to rectify mistakes in already existing service, function, design, and plant patents.  This patent does not influence the period of the protection provided by the innovative patent. Reissue patent can however be applied to the original owner, in case if there is any error, amendments or any additional claims to strengthen the patent. Consequently, the capacity of the patent fortification can be modified. [17]

2.5 Defensive Publication (DEF)

Between 1985 and 1986, the Defensive Publication was replaced by the Statutory Invention Registration acts as utility, design, or plant patent granting very limited protection while serving the same goal of preventing other parties from owning rights for new innovative ideas. Ultimately, defensive publication is awarded as a substitute patent.[18]

2.6 Statutory Invention Registration (SIR)

This refers to a certificate that substitutes the defensive publication in 1985 and 1986 although it provides analogous protection rights. The America Invents Act (AIA) was signed into law on September 16th 2011 to rescind provisions concerning statutory innovation registrations in addition to the discontinuation of the issue of the documents. It is therefore evident that, the current length of a patent is a period of twenty years. The title-holders of a utility patent however, ought to pay out maintenance fees. The period within which a patent is regarded to be valid and enforceable should commence on the same date the patent application has been filed. Income cases patent terms can nonetheless be extended under each nation’s statutory decrees. [19]

3.0 Patent Processing in Russia

In 2008, the Russian Federation Civil Code took effect requiring registration and protection of results of intellectual activities. Since January 1st, Part IV of the Civil Code applies to patent application. Conversely, since December 31st 2007, infringing acts have been subject to Civil Code. New Administration Regulations for the Acceptance Examination, Granting and Registration took effect on 5th June 2009 prompting the Russian Federation to join the Patent Law Treaty on August 12th to make a reservation in accordance with Article 23(1) of the Patent Law Treaty claiming that, provisions of Article 6 (1) should not apply to any requirements relating to unity of invention applicable under PCT to an international application. The Civil Code covers and grants patents for inventions, utility models, and designs. Inventions and utility models result from intellectual activities in the science and technology field. Inventions are substantive technical innovations. Utility model patents are offered to smaller technical improvements while design patents cover intellectual activities in the artistic design field. Design patents are granted for artistic and design solutions of factory and home-made articles determining appearances. The process of obtaining patent protection in the Russian Federation involves filing an application with the Russian Patent Office. The office comprises of the head and four directorates as well as two crucial divisions namely the Federation Government Institution or Federal Institute for Intellectual Rights and the Chambers for Patent Disputes. Federal Institute for Intellectual Rights being a subordinate to Rospatent receives and examines patent applications. Conversely, Chambers for Patent Disputes handles the appeals to decisions by Rospatent and nullity actions filed against issued patents. [20]

The terms of patent protection in relation to the Russian Federation change depending on the type of the patent. For instance, exclusive rights to an invention can be issued for twenty years from the filing date for an invention such as utility or industrial design application. The rights can nevertheless be extended for another thirteen years from the filing date in the case of a utility patent. Patents under the Russian Federation can also be valid and enforceable for extra fifteen years from the filing date with regards to industrial design. Thus, the industrial design can be extended up to twenty-five years in total. More so, the Russian Federation tends to use special terms of an invention patent relating to a medicine, pesticide or agrochemical substance requiring a market authorization such as Food and Drug Administration approval in United States. The terms of patent for a drug, pesticide or agrochemical can also be extended for a period not more than five years. Considering both United States and the Russian Federation, if a patent application is rejected, the applicants are allowed to apply and file an appeal.[21]

3.1 Russian National Filing vs. Eurasian Regional Filing

Filing a regional Eurasian patent application is an alternative route of obtaining patent protection for an invention within the Russian Federation. The filing designates Russia with the Eurasian Patent Office to file for an alternative national patent application with Russian Patent Office. The PCT-ROUTE has included the Soviet Union as a member since March 1978. The third route obtains patent fortification in the Russian Federation by delegating the Russian Federation through the PCT application while entering a nationwide chapter prior to the Russian Patent Office. The term of the entry is thirty-one months from the earliest priority date. After that phase, corroboration of disbursement of the filing is filed. Sovereign claims are classified together.[22]


3.2 Complexities in Obtaining a Patent in Russia

There are two-step examination processes undertaken during invention patent application. After an application is filed with the Russian Patent Office tasked in ensuring the applications are completely compliant with established requirements, Russian Patent Office ought to publish the application eighteen months after filing date in case of a national application. In regard to PCT, it takes eighteen months after expiry of the thirty-one months. The second step involves filing the request for substantive examination within three years in order for the office to examine the patentability of the claimed invention. Prosecution issues for invention patents arise based on the following facts. If the translation accuracy filed by foreign entities in Russia has errors, the examiners in the Russian Federation have to draw applicants’ attention through a prosecution. The Civil Code of the Russian Federation affirms applicants are entitled to amend patent application documents. This however cannot occur if the essence of the intervention is modified. If additional materials are deemed to modify the invention by comprising features that have to be included in the claim without being disclosed in the priority document, prosecution ought to occur. Lastly, claim-sets should not comprise multiple-dependent forms. Thus, prosecution occurs when claims infringe this requirement to consider and determine if the claims ought to incur extra costs. The prosecution also considers the time to take for the nullification action. [23]

Fulfilling these requirements has therefore posed a great challenge to the process of obtaining patents in Russia. Consequently, the Russian government is not keen in promoting local businesses as it does not strive to protect their inventions. Coupled with lack of criminal liability for patent infringement, the process of obtaining patents in Russia is complex. More so, high dues and thousands of dollars are incurred through legal support which is an unpopular practice in the process of obtaining patents. The Russian Federation system is therefore not strong as it also fails to address issues linked corruption in trade marking and patenting legal and black market products. [24]

4.0 Limited Protection
4.1 Limited Protection in United States

In United States, patents provide inventors with the right to exclude other parties from making, using, importing, and selling their inventions for a limited period of time within the nation’s boundaries. After an inventor submits a patent application, various steps are undertaken to determine if the product or invention can be protected with a patent. The primary step involves recognizing the expenses and reimbursements of patent protection. The patent application and registration procedure often takes place for a period ranging between three and five years. This procedure is therefore costly as permissible and consulting overheads are sustained. As a result, the procedure should be determined if the benefits of excluding other parties from manufacturing, distributing, and exploiting the subject matter outweigh the high costs of prosecuting and protecting the patent. This ought to be fulfilled prior to a patent application being filed. Consequently, a progression considering whether there are adequate substitutes for protecting the invention is undertaken. [25]

The United States Patent and Trademark Office therefore determine if adequate protection under the state trade secret laws is available while determining to what extent the business plan will utilize technology prior to the patent being actually issued. For instance, a regular patent infringement civil suit incurs hundreds of thousands of dollars to cover only the attorneys’ fees. The cost benefit investigation is therefore vital as it should mull over the following. Foremost, the investigation should consider the projected commercial value of the invention including the projected out of pocket expenses to be incurred in order to register the patent. Legal costs coupled with marketing, re-tooling, and promotion expenses must also be determined. This is vital as the target market for the invention can be limited hence, cost of prosecution and protection of the patent outweighing the benefits.[26]

A procedure determining the closeness of the subject matter of the innovation to existing patented and non-patented technology is undertaken. The process focuses on both the infringement and marketable development perspectives. Thus, if the subject matter of the patent is found to be too close to existing technologies, the claims allowed by United States Patent and Trademark Office has to narrowly vary. Consequently, the claims are termed as difficult to commercialize and protect. Lastly, it is resolved if the contraption can be utilized within the time frame granted by the federal statute. This step also assesses if the market worth of the technology or contraption will be lost within three to five years taken to get hold of a patent. In case patent protection raises concerns in a field in which the technology is developing quickly, the risk of the invention becoming obsolete before the patent is issued should be prevented.[27]

Filing a patent application takes place within one year of public use or publication of the innovation. Statutory requirements however apply significant limitations on level of marketing research and testing undertaken. For example, if an inventor decides to pursue the patent, two things should be done before obtaining a patent attorney. Foremost, a properly maintained compilation of the records relating to the research and testing of the product should be made readily available. The records ought to contain key dates such as when the invention was conceived and actually reduced to practice. The dates affirm the invention is beyond conceptual phase as it has either been developed or tested and as clearly described in the application. The application ought to be easily understood by a third party skilled in the art of acknowledging, understanding, and developing technologies. The records should also exhibit inventors’ conscientiousness in developing and testing the innovation. Consequently, the inventors should include legalization of sovereign witnesses competent of comprehending the nature and capacity of the innovation.[28]

The records should also affirm the invention can be verified based on the dates of conception, actual reduction to practice, and continued diligence undertaken by the inventor.  There are various specialty attorneys at law in United States. The attorneys or non-attorney patent agents however, must be admitted to the patent bar by the time they are able to appear or perform at the United States Patent and Trademark Office in patent matters. Thus, attorneys and non-attorneys should not appear and practice on patent matters without having passed the patent bar.[29]

4.2 Limited Protection within the Russian Federation

In Russia, eligibility of a patent according to the Civil Code is determined based on the subsequent requirements. Primarily, the innovation should not be object of human cloning technologies. Additionally, the invention ought to not apply techniques used in changing genetic integrity of human embryo cells. As a result, innovations should not utilize embryos for either commercial or industrial purposes. The invention’s solutions should also be consistent with public interest as well as human and moral principles. Ultimately, discoveries, methods, and rules of intellectual activities as well as varieties of animals, plants, and biological methods should not be subject matters seeking patent protection. Consequently, the invention ought to be inventive over prior art. The inventions are also required to present resolutions that are not exclusive to technical functions. Objects of industrial and architecture value as well as of instable form such as gases, and fluids are therefore not patented. Each utility and industrial design patent lasts for a period of twenty years from the filing date. Terms of the exclusive right to an invention also affirm the patent can last for ten years from the filing date although the patent can be extended up to three years with regards to utility patent.[30]

Conversely, the industrial design patent lasts for fifteen years from the filing date although a ten-year extension can be approved. The civil code also asserts that, both utility and industrial design patents can be nullified under the following Civil Code requirements. Foremost, after affirming the patented innovation does not comply with the circumstances of the patentability nullification should ensue. If arranged patent claims or list of noteworthy features include characteristics outside the revelation of the original application, nullification should ensue. Some subject matters are patented although several applications for identical inventions have similar priority dates. In such cases, the patents are nullified to make certain the additional several applications for identical inventions seeking utility and/or industrial design patents are awarded a fair chance. Lastly, patents that have been awarded without indicating inventors or patent holders are nullified.[31]

Ultimately, the Russian Federation ensures legal entities and individual persons can file for nullification of a patent with the Chamber for Patent Disputes at Rospatent and the court in case the above requirements are not fulfilled. The patents can be affirmed null and void either in full or in part without the petitioner showing meticulous legal significance in filing for the nullification which does not have a time limit. The length of a Russian patent is therefore twenty years since the filing date. The term of patents in relation to medicine, agrochemicals, and pesticides requiring market authorization from Ministry of Health can be extended if the approval is delayed for more than five years since the filing date of the application. Thus, the maximum extension available is five years granted after an approval is delayed for more than ten years since the filing date. [32]


5.0 Patent Infringement in US and Appeal Proceedings
5.1 Patent Infringement in United States

In United States, patents are valid as they continue to provide inventors with the right to exclude other parties from using, making, importing, and selling their inventions. Thus, if companies and individuals practice on a patented innovation without authorization from the patent owner both parties should be prosecuted for infringing the patent. Infringement of a patent can also occur when defendants make, utilize, sell, and propose to vend, and/or import infringing inventions or their equivalents. Infringement actions ought to instigate as soon as a patent has been issued.[33] Pre-granted patent protection under 35 USC § 154 permits patent owners to attain rational and practical royalty compensations for definite infringing activities that have happened prior to the date of issue of the patent within realistic amounts. In order to get hold of provisional indemnity, the patent proprietor is required to identify the infringing activities and prove the indemnity happened subsequent to the publication date of the patent application. The patent owner should also prove the patented claims are considerably indistinguishable to claims in the published application. Lastly, the patent title-holder should affirm the infringer had actual notification of the published patent application.[34]

Infringement of patents can either be direct or indirect. Direct patent infringement involves people directly utilizing, selling, creating, and importing patented innovations within United States without the owner’s authority throughout the term of the patent. Conversely, indirect infringement is defined under the United States Patent Act as well as under 35 USC §271. Direct infringement does not necessitate comprehension of the patent or any target. Indirect infringement however occurs the accused either has at least little familiarity or objective in regard to the patent and infringement.[35] With regards to 35 USC 271, indirect infringement is depicted as the dynamic enticement of infringement resulting to manufacture of liability to persons attributing towards infringement of the patent.[36] Courts are required to find direct and indirect infringements from merely circumstantial evidence proving at least one instance of inducement or contribution led the infringer to participate in the practice of the patented invention or subject matter. When one infringer actively induces infringement of a patent by aiding, encouraging, and causing other parties to infringe the patent, this situation is covered under 35 USC 271. The potential inducer should therefore be aware of the patent and engage in actions intending to result in a third party infringement of a patent. 35 USC 271 also covers contributory infringement. This occurs when sellers provide either part or module of an innovation. Although this does not violate any patent, the fastidious use of the invention’s parts or components is covered under the patent protection rights.[37]

5.1.1 Apple v. Samsung

Samsung and Apple have filed several docket entry filings, jury trials and appeals. Both parties have been selling smart phones and tablets. Apple however filed a suit in 2011 claiming Samsung had infringed various intellectual rights and antitrust claims. Apple filed three utility patents, four design patents, three unregistered trade dresses and a registered trade dresses claims against twenty eight Samsung products. The jury found that, only twenty six of the accused Samsung products had infringed one or more of Apple’s intellectual property rights. In July 2012, Apple was awarded indemnity claims. A partial damages retrial was however held in November 2013 during which Samsung was required to pay $929,780,039 to Apple for infringing intellectual rights.

In 2014, Samsung filed a Notice of Appeal to Federal Circuit. The court had to affirm validity and infringement judgments in regard to Apple’s design and utility patents and indemnity awarded by Samsung. The jury’s findings were reversed as the court asserted trade dresses are protectable. The court also vacated damage awards against Samsung products liable for trade dress dilution. More so, the court remanded immediate entry of final judgment on all damage awards not predicated on Apple’s trade dress claims. In 2015, Federal Circuit after requiring retrial of damages for five Samsung products on remand issued a Case Management Order on September for a retrial in 2016. The court will therefore have to determine how inclusion of schedules showing damages by patent and product at the hearing.

5.1.2 Apple v. Motorola

In 2014 at the Federal Circuit reversed district’s court decision to exclude damages evidence. The Federal Circuit also reversed the district court’s grant of no damages for infringement of Apple patents. Apple’s request for an injunction as awarded by the court was vacated. The court also affirmed the decision that, Motorola was not entitled to an injunction for infringement of the Fair, Reasonable, and Non-Discriminatory (FRAND) committed patent. Apple filed a complaint against Motorola which was counterclaimed. Based on the claim construction decisions, district court granted SJ of non-infringement to certain claims and excluded most of parties’ damages for remaining claims. Little evidence on damages was deemed admissible prompting the court to affirm none of the parties were entitled to damages and injunctions. All claims with prejudice before a trial were also dismissed prompting the decision to be appealed on construction, admissibility, damages, and injunctions decisions for three of Apples and Motorola patents.  The Federal Circuit analyzed the case and district’s court’s decision and reversed the ruling. Federal Circuit revealed Apple’s ‘263 patent and Motorola’s ‘898 patent would determine the damages to be awarded. Federal Circuit ruled that, Apple was not entitled to an injunction for infringement of ‘949, ‘263 and ‘647 patents as it had failed to show casual nexus between alleged irreparable harm and Motorola’s infringement.

5.1.3 Teva Pharmaceuticals V. Sandoz

Teva Pharmaceuticals owned the patent covering manufacturing method for Copaxone made up of molecules varying in sizes. The claim described the Copaxone ingredient as having a molecular weight of 5 to 9 kilodaltons. Sandoz Inc had been trying to market generic version of Copaxone. Teva therefore sued Sandoz for patent infringement prompting Sandoz to defend the suit by arguing the patent was invalid as the term ‘molecular weight’ could mean anything. Sandoz claimed the term was indefinite hence, failing to satisfy patent law requirement as claimed by Teva. District court argued the patent claim was sufficiently definite. An appeal was however filed during which Federal Circuit asserted the term was indefinite and therefore the patent invalid.

5.2 Appeal Proceedings in United States

After infringement of patents has been affirmed, the accuser(s) are provided with an opportunity to deny the accusations. Counter attack on the patent is regarded as the most common defense mechanism involved during a patent infringement case. This mechanism focuses on the legality of the patent as well as the alleged infringement claims. As a result, a plaintiff ought to prove the patent is valid and every element of the claims was violated by the accuser(s).[38] Several medical system patents have been awarded after 1996. In case a patent violation is affirmed, the United States infringer can raise a statutory safe harbor defense to infringement. The safe harbor is meant for research conducted for pure philosophical inquiries. The research can however be directed towards commercial purposes in order to obtain approval of Food and Drug Administration to introduce genetic version(s) of patented drugs. [39]

Under US law USC section 284, patent holders are allowed to receive indemnity that can adequately compensate for the infringement. Patent owners are therefore not entitled to realistic royalty to cover the costs if the event does not warrant. For instance, patent holders ought to recover lost profits associated with violation of a patent. The process of determining is the compensated profits are reasonable is undertaken by standard practices of the particular industry relevant to the invention or subject matter. The sensibleness of the compensation is also pertinent to other analogous royalty history of the patentee. The current case law also affirms that, infringers found guilty of deliberately infringing patents termed as willful infringement result to enhanced damages being awarded. The damages can be enhanced up to three times the total amount of indemnity either evaluated or found. The amounts should also include legal fees incurred to prove a willful infringement of patent occurred as claimed under section 285. In case the patent violation is deemed extraordinary, the infringement can be forwarded to the United States Supreme Court. [40]

Currently, the United States Supreme Court has acknowledged two exceptional willful patent violation cases calling for the evaluation of the willfulness prerequisite affirming enhanced damages should be awarded. The court has also addressed a 2-pronged test aimed at establishing willful infringement enunciated by Court of Appeals for the Federal Circuit solely handling patent case appeals. Infringers can also be enjoined from further violation of the patent which can prompt them to be forced in removing violating goods from the market. Prior to the United States Supreme Court addressing the eBay v. MercExchange case in 2006, plaintiffs had to routinely seek and be granted injunctions hindering infringement of patents. After the court case however, obtaining the injunctions has been challenging prompting plaintiffs to pursue remedies for damages. The fact that patents last for several years has also ensured common lawsuits to come to a conclusion even before patent terms have ended. It is therefore still unclear to what extent a court of appeal ought to craft remedies including royalties for infringing activities that are yet to occur. In 2009 however, an article in the Federal Lawyer affirmed courts addressing patent infringement appeals have been granting remedies to appropriate cases willingly. The Supreme Court also addressed ing the Stryker Corp v. Zimmer Inc. the case was consolidated into the argument that, CAFC decision in regard to Stryker reversed district’s court decision of willful infringement. The case was described as exceptional hence, attorneys’ fees were awarded. [41]

5.3 Infringement of Patents in Russia and Appeal Proceedings

Legal actions protecting against infringement of patents in Russia are implemented in the frame of civic, criminal, and/or administrative proceedings. The Civil Code affirms that interested persons can apply to the commercial or arbitration court for fortification of desecrated patent rights. Criminal and administrative actions with the law enforcement agencies can be initiated on the basis of Code of Administrative Offences and the Criminal Code. The Criminal Code provides that, violation of patent rights can be considered as a crime.[42] This constitutes illegal use of innovations including utility model and industrial design patents exclusive of consent from the authors or applicants of the essence of the invention.  The illegal use can also occur before the official publication coupled with illegal acquisition of authorship. In 2013, Specialized Court for Intellectual Property Rights was established in the Russian Federation and embedded in the system of commercial or arbitrage courts. The court is mandated to consider disagreements concerning intellectual property rights challenging rules of federal bodies. The court should also consider arguments regarding annihilation of lawful protection of intellectual property. More so, the court has to establish patent owners when settling disputes and the invalidation of inventions issued in violation of the right of authorship. Non-normative legal actions, omissions, and decisions of the Russian Patent and Trademark Office are also addressed by Specialized Court for Intellectual Property Rights. Lastly and more importantly, the court protects intellectual property rights by arbitrating infringement cases. The Board of Patent Disputes can also consider patent invalidation cases as the board is a subdivision of the Patent and Trademark Office. The board’s verdicts however, can be petitioned at the Court for Intellectual Property Rights.[43]

Decisions formed by Specialized Court for Intellectual Property Rights ought to take effect from the date they are rendered without undergoing an appeal stage. Parties to the proceedings however, can possibly challenge the verdict by filing cassation claims to the presidium of the said court. Specialized Court for Intellectual Property Rights is also required to act as the court of cassation when decisions are adjudicated by the arbitration courts of the Russian Federation within the first occurrence. This proceed is also sustained by the adjudication appeal courts in regard to protection of intellectual property rights. Specialized Court for Intellectual Property Rights therefore combines authorities of the courts of the first and cassation instances in order to increase quality levels of intellectual property disputes.[44]

A patent violation under the legislation of Russian Federation principles refer to a burden of proof lies on persons bringing actions. The plaintiffs in the patent litigations are required to prove existence of the contravention. Thus, the court does not standardize manners in which infringements are to be proven. The court accepts evidence proving patent infringement in form of depositions, expert testimonies, private and public documents, witnesses, photographs, stenographic notes, scientific researches, and judicial audits or inspections.[45] Consequently, the Russian Federation legislation is managed by a judge with the jury participating occurring under stipulations. The primary instance trial lasts approximately six to twelve months. This stage however can be extended die to various factors including examination of the existing phase. Persons contributing in the case are required to prove conditions used as grounds for claims and objections. If guilt in a violation case is absent, this must be validated by the infringer.[46]

Patentee or restricted licensee has the right to file suits not in favor of parties infringing their rights. The accused infringer can bring lawsuit to obtain ruling or declaration on the accusation in diverse cases such as against actions of the patent holder spreading unsubstantiated information about the infringement. Individuals as well as multiple parties can be liable for infringement as long as they have violated patent rights. Before filing the claim to the commercial court, the parties involved should prove the subject matter in dispute has been patented. The filed claim ought to have proven rights and duties of the defendants in addition to those of the subject matter. It can be illustrated that, activities that have taken place outside the Russian Federation and violated patent rights are not supported. Some of the patent infringement cases reported in Russia include the 2006 litigation between Genentech and Biocad JSC. The Russian patent RU 2139731 listed 731 and 107 patent claim methods to determine if the Russian biotechnology industry was involved in the infringement. In 2012 during the patent-cliff era, Russian companies began developing bio-similar versions of biologics prompting Roche to file a lawsuit against Biocad for infringing 107 patent claims. These cases however, are yet to be determined as the Russian Federation as the nation’s patent application system is still unclear. [47]

According to Civil Code Article 1358 of the Russian Federation, limited rights of an invention belong to patent holders. If the invention or parts of the features are used in a product or a process, independent claims ought to be filed. The scope of the rights arising from the patent have to be determined to recognize that, at least some technical features have been used in solving problems or replaced by other unauthorized parties. The plaintiffs should provide the court with evidence substantiating their demands subsequent to being collected by claimants on their own. Costs of the proceedings ought to include court, attorney and specialist fees. The costs vary between depending on various factors including intricacy of the litigation and position of parties. [48]

The existing practice requires parties involved in an infringement case have the right to disagreement a decision of the court. The petition can be filed within one month from the date of the full text of the dispute decision issued. The plea however, should not include new claims that were not been considered in the first instance. The appeal court is entitled to assume the verdict made during the first occurrence without modification and the petition without satisfaction. The appeal court is also entitled to either amend or reverse verdict of the court of the first instance fully or partially while issuing new judicial action on the case.[49] Consequently, the appeal court can reverse the verdict and terminate the procedures or leave a statement of claim without either part or full consideration. The cassation claims on decisions however should be filed to Court for Intellectual Property Rights within two months. The two months should be from the date of entry of the appealed decision. It should also be noted the Russian legislation allows other alternative disagreement declaration techniques to be applied. These techniques include mediation and arbitration tribunal although there are no mandatory requirements affirming they should be used either concerning the patent dispute settlement or patent infringement action.[50]

5.3.1 Roche v. Biocad

Patent litigation between Roche and Biocad which is a Russian company has been significant for the biopharmaceutical industry. In 2006, Roche launched MabThera in Russia also known as Rituximab utilized to treat diseases characterized by excessive, overactive or dysfunctional numbers of B cells. Rituximab has been listed by WHO as an essential medicine which led 2014 recorded sales to exceed seven billion U.S dollars. Rituximab was developed by Biogen Idec and protected by patents globally. The Russian patent RU ‘731 claims use of Rituximab in treating lymphomas although it expired in 2013. Eurasian ‘107 patent claims combinational therapy of B cell lymphomas which will expire in 2019. Biocad, a full cycle Russian biopharmaceutical company noticed other Russian companies in 2012 were directing their focus towards development of bio-similar versions of Rituximab among other products. In 2013, the Russian Federation state procured Rituximab accounting for 217 million U.S dollars of the Russian budget. In 2014 after the ‘731 patent had expired, Biocad launched AcellBia which is bio-similar to Rituximab. This prompted Biocad to be awarded a 240 million U.S dollars state procured contract for supply of Rituximab. This eliminated Roche from the market place which led to the 2014 patent litigation lawsuit against Biocad. Biocad proved it had not induced infringement of ‘107 patent prompting trial court to reject claims by Roche which did not appeal and voluntarily abandoned the patent litigation.

5.3.2 Software Company ABBYY v. U.S Company Nuance

Under the New York Law360 on September 2013, Nuance was defeated in a 260 U.S dollars patent and trade dress infringement lawsuit. Nuance lost to ABBYY Software Company located in Russia. On Aug 2013, a California jury determined ABBYY and Lexmark did not infringe three patents covering Nuance Communications Inc rival OCR software. The jury also rejected trade dress infringement claims alleging packaging for ABBYY’s FineReader software ripped off of Nuance’s OmniPage.

6.0 European Union and its Specifics about Patenting in Europe

There are diverse routes to patent protection depending on the invention and the markets being operated. The European Patent Office under the European Patent Convention (EPC) and the Patent Cooperation Treaty (PCT) is required to accept all patent applications. The European patent application comprises of appeal for award, portrayal of the invention, claims, drawings where applicable, and a summary. At the EPO, the applications are categorized and filed in any language including French and Germany although English is often used officially. Services of a specialized delegate are compulsory for applicants outside Europe although EPO advises applicants to request permissible counsel. The initial stage in the European patent granting process is the assessment on filing. This involves checking whether all the essential information and credentials have been offered for the application to be accorded a filing date. [51]

In order to indicate a European patent is being pursued, the following are required. Foremost, particulars recognizing the applicant have to be presented. Consequently, narratives of the innovation as well as references to a formerly filed application have also to be represented. If claims are not filed, they ought to be tendered within two months. Consequently, a formalities examination in regard with certain formal aspects of the application is conducted. The examination includes the form and content of the appeal for award, drawings and conceptual, the description of the creator, the appointment of a professional representative, the essential translations and the charges owed. Consequently, a European search report is drawn as it lists documents readily available to the office. The documents however, ought to be relevant in assessing novelty and inventive steps. The European search report should therefore be based on patent claims although the report can also reflect on the depiction and any drawings. The search report is then sent to the applicant with a copy of cited credentials and a preliminary outlook affirming the claimed invention and the application fulfills the requirements of the European Patent Convention.[52]

The application is then published with the search report in eighteen months after the date of filing. Applicants are awarded six months to make a decision whether or not to pursue their application by applying for substantive assessment in order to disburse the suitable designation charge and may be extension fees. The European patent application bestows provisional guard on the innovation in the states designated in the application. The bestowed provisional guard commences on the date of publication. Consequently, the European Patent Office has to inspect the European patent application and the invention. The inspection is crucial as it determines if the applications meet the requirements of the European Patent Convention. The examinations are also important as the findings determine if the patent ought to be granted. If the patent can be granted, a mention of the award is published in the European Patent Bulletin. This resolution to award takes effect on the date of publication.[53]

6.1 Role of Europe in Licensing Russian Patents

The current international commerce requires product development to take place on an international scale. In United States, the government assesses aspects likely to threaten national security. Other states offer overseas filing licenses although they are not issued promptly or proficiently. A European patent application is filed as the primary filing not including obtaining a foreign filing license. The first filing is domestic as inventors have to affirm they are nationals or permanent residents. As the companies expand globally, their attorneys are required to take an intercontinental outlook to conserve worldwide rights. The attorneys should therefore discover inventor-ship and the overseas filing laws of the nation of innovation early on in the disclosure and application preparation process.[54]

6.2 Role of Today’s Ukraine Impacted Russian IP Rights

Ukraine’s negotiations with the European Union for a free trade agreement play key roles in the current Russian-Ukrainian conflict. Western analysts have spent a great deal of energy speculating about Russia’s foreign policy interests as well as Putin’s psyche and other issues. The conflict between the European Union and Russia over Ukraine, and World Trade Organization regulations and pledges has played a colossal role in fueling the conflict. Economically, Russia’s customs union is not as appealing as the vast European Union market. The combined gross domestic product of Russia Belarus and Kazakhstan is about one eighth as large as the European Union’s Gross Domestic Product. More so, Russia’s average per capita income is less than half that in the European Union despite being a major supplier of gas to Ukraine and a major purchaser. Major obstacles arising from Ukraine’s fusing Russia’s customs union influence obligations to the World Trade Organization.[55]

Ukraine joined the World Trade Organization in May 2008 while Russia joined in August 2012.  Russia’s bound rate is 7.8% even after applying to customs union partners Belarus and Kazakhstan. Thus, if Ukraine joins the customs union it has to espouse the Russian tariff schedule as an essential rule of customs unions. This will however lead Ukraine to violate World Trade Organization commitments prompting Ukraine or the customs union to compensate trade partners hurt by the rise in tariffs.[56] Ukraine has therefore been caught in the conflict between the European Union and Russia. This has resulted Russia to claim Ukraine should not be a member of the customs union and have a free trade agreement with the European Union as it fears Ukrainian FTA with the European Union will lead to a flood of imports into Ukraine. This will further result to increase of re-exported duty-free to members of the Russian customs union hence, undermine Russia’s tariff structure. Thus, it is technically impossible for Ukraine to both be a member of Russia’s customs union and have an FTA with the European Union. The two should therefore work out rules defining goods eligible for duty free treatment to prevent trade diversion and resolve the looming political crisis arising from Russia’s seizure of Crimea.[57]

6.3 Other Former Soviet Union Borders Licensing and Restrictions

The Soviet Union has been presenting itself as a communist paradise as it is a country where life is considered to be better in comparison to capitalist countries. This has therefore been the main justification for communist power and social order.

For a prolonged period of time, travel restrictions to socialist countries have been severe as the authorities have been afraid to expose people to diversity. More so, major European socialist countries had been enjoying higher life standards and less ideological restrictions than Soviet Union. Foreigners visiting Soviet Union had to endure issues allied to restricted movements inside Soviet Union as they were mostly allowed to visit only Moscow and other few principal cities under constant surveillance. The main motive for severe restrictions was the need to sustain defense clearance. The process of obtaining the clearance involved people signing an obligation to report to KGB on all their contacts with foreigners. Eventually however, rights in neighborhood nations were enforced. [58]

7.0 Conclusion

The intellectual property law is vital as it provides legal support across diverse industries. Intellectual property also protects high technological innovations and extra ordinary creativity as it is a substantial part of modern economy as it enables businesses to rely on provisional wealth such as patent rights, trademarks and copyrights on annual basis. It should however be noted that, the intellectual property law can also be one of the most complicated practices with respect to international transaction processes and licensing purposes in other countries. United States and Russian Federation have therefore provided great examples affirming countries can and ought to depict differences in implementing intellectual property law easily. Consequently, United States and the Russian Federation should easily depict the dissimilarities. Exporting intellectual property rights in one country for the purpose of eliminating risks while entering a totally new region for marketing purposes is important. It is more important to file any patents in potential country of marketing through the local patent law firms for all risks of rejection and patent infringements to be weighed prior to any filings.


8.0 Bibliography

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[1] Process for Obtaining a Utility Patent. UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO) REPORT. (2009).

[2] Russian Federation: Patent System in Russia. World Intellectual Property Organization (WIPO) (2010).

[3] Patents and Trademarks Statistics. United States Census Bureau Number, (2006).

[4] General Information Concerning Patents. United States Patent And Trademark Office (USPTO) (2014).

[5] Patents and Trademarks Statistics. United States Census Bureau Number, (2006).

[6] General Information Concerning Patents. United States Patent And Trademark Office (Uspto), (2014).

[7] About United States Patent and Trademark Office (Uspto). United States Patent and Trademark Office (Uspto), (2016).

[8] General Information Concerning Patents. United States Patent and Trademark Office (USPTO), (2014).

[9] General Information Concerning Patents. United States Patent and Trademark Office (USPTO), (2014).

[10] Id.

[11] Russian Patent Office now Providing ISRs for U.S. Inventors at Low Cost. United States Registered Patent Attorneys, (2012).

[12] Intellectual Property (IP) Attaché Program. United States Patent and Trademark Office (USPTO), (2015).

[13] Process for Obtaining a Utility Patent. United States Patent and Trademark Office (USPTO) Report, (2009).

[14] Recent Changes in the Russian Patent System. World Intellectual Property Organization (WIPO), (2010).

[15] Intellectual Property: Patent Trends around the World. Baker & Mckenzie Doing Business Globally, (2012).

[16] Recent Changes in the Russian Patent System. World Intellectual Property Organization (WIPO), (2010).

[17] Recent Changes in the Russian Patent System. World Intellectual Property Organization (WIPO), (2010).

[18] Patents and Trademarks Statistics, United States Census Bureau Number, (2006).

[19] Recent Changes in the Russian Patent System. World Intellectual Property Organization (WIPO), (2010).

[20] Russian Federation: Patent System in Russia. WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO), (2010).

[21]Intellectual Property: Patent Trends around the World. Baker & Mckenzie Doing Business Globally, (2012).

[22] Pros and Cons of Patent Litigation in Russia. WORLD INTELLECTUAL PROPERTY REVIEW, (2011).

[23] Russian Federation: Patent System in Russia. WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO), (2010).

[24] Russian Federation: Patent System in Russia. WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO), (2010).

[25] General Information Concerning Patents. United States Patent and Trademark Office (USPTO), (2014).

[26] General Information Concerning Patents. United States Patent and Trademark Office (USPTO), (2014).

[27] Id.

[28] How to Become Registered to Practice before the USPTO in Patent Matters: General Requirements Bulletin. United States Patent and Trademark Office (USPTO), (2012).

[29] General Information Concerning Patents. United States Patent and Trademark Office (USPTO), (2014).

[30] Pros and Cons of Patent Litigation in Russia. World Intellectual Property Review, (2011).

[31] Pros and Cons of Patent Litigation in Russia. World Intellectual Property Review, (2011).

[32] Russian Federation: Patent System in Russia. WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO), (2010).

[33] Patents and Trademarks Statistics. UNITED STATES CENSUS BUREAU NUMBER, (2006).

[34] Rejected Patent Applications. UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO), (2007).

[35] Patent Infringement Claims and Defenses. PRACTICAL LAW PUBLISHING LIMITED AND PRACTICAL LAW COMPANY, (2011).

[36] Id.

[37] Patent Infringement Cease-And-Desist Letters. INTELLECTUAL PROPERTY TODAY, (2005).

[38] Patent Infringement Claims and Defenses. Practical Law Publishing Limited and Practical Law COMPANY, (2011).

[39] Rejected Patent Applications. United States Patent and Trademark Office (USPTO), (2007).


[40] How to Become Registered to Practice before the USPTO in Patent Matters: General Requirements Bulletin. United States Patent and Trademark Office (USPTO), (2012).

[41] Rejected Patent Applications. United States Patent and Trademark Office (USPTO), (2007).

[42] How to Become Registered to Practice before the USPTO in Patent Matters: General Requirements Bulletin. United States Patent and Trademark Office (USPTO), (2012).

[43] Id.

[44] How to Become Registered to Practice before the USPTO in Patent Matters: General Requirements Bulletin. United States Patent and Trademark Office (USPTO), (2012).

[45] Id.

[46] Pros and Cons of Patent Litigation in Russia. WORLD INTELLECTUAL PROPERTY REVIEW, (2011).

[47] Pros and Cons of Patent Litigation in Russia. WORLD INTELLECTUAL PROPERTY REVIEW, (2011).

[48] The U.S. and Russian Patent Systems: Recent Amendments and Global Implications for the Protection of Intellectual Property Rights. THE JOHN MARSHALL REVIEW OF INTELLECTUAL PROPERTY LAW, (2015).

[49] Russian Federation: Patent System in Russia. WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO), (2010).

[50][50] Pros and Cons of Patent Litigation in Russia. WORLD INTELLECTUAL PROPERTY REVIEW, (2011).

[51] What Does Patent Pending Mean? LAW REVIEW, (2016).

[52] Patents, Trademarks, Copyright and Designs in Russian Federation: Overview. PRACTICAL LAW, REUTERS LEGAL SOLUTION, (2016).

[53] Id.

[54] Pros and Cons of Patent Litigation in Russia. WORLD INTELLECTUAL PROPERTY REVIEW, (2011).

[55] About Patent Infringement? UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO), (2015).

[56] About Patent Infringement? UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO), (2015).

[57] Recent Changes in the Russian Patent System. World Intellectual Property Organization (WIPO), (2010).

[58] The Russian IPR Problem: How Accession to the WTO is Not the Magical Solution, Rather a Step in the Right Direction. Intellectual Property Brief, 3(2), 57-68, (2011).