Proposals for Differentiating Remuneration for Patent Holders in the Context of Limiting their Exclusive Rights in Healthcare

Abstract

The paper discusses current issues of legal response to unfair or ineffective actions of patent holders in the exercise of their exclusive rights in the field of healthcare. As a legal response tool in these circumstances, the author proposes not only to limit exclusive rights in accordance with the rules of Art. 1360, 1360.1 and 1362 of the Civil Code of the Russian Federation, but also differentiate the amount of remuneration (commensurate compensation) due to patent holders. It is proposed to reduce the amount of this remuneration (up to its zeroing) depending on the presence of factors of dishonesty of actions or inaction of patent holders that affected the availability on the Russian market of pharmaceutical and medical goods, works and services in which the corresponding objects of patent protection are used. The proposed differentiation, on the one hand, will stimulate patent holders to take more active steps aimed at ensuring the availability of relevant pharmaceutical and medical goods, works or services on the Russian market. On the other hand, in law enforcement practice, it will respond consistently and more effectively to unfair actions or inaction of rights holders, which led to problems with the availability of highly socially important goods in the healthcare sector. At the same time, it is noted that it is unfair to equalize all foreign patent holders associated with unfriendly countries and to zero the amount of their remuneration in the situations specified in paragraph. 2 clause 2 of the methodology approved by Decree of the Government of the Russian Federation dated October 18, 2021 No. 1767 (as amended on March 6, 2022).