How Russian Applicants Can Protect Inventions in Europe Under Sanctions: Legal and Practical Guidance

In the realities of sanctions policy, the protection of the intellectual property of Russian applicants in Europe is becoming an increasingly complex and multi-layered task. The traditional routes for obtaining European patent protection - through the national offices of European countries and the European Patent Office (EPO) - are subject to significant restrictions. Russian companies and individual inventors are faced with the need not only to adapt their patenting strategies, but also to build legally sustainable protection mechanisms, taking into account political and economic risks, compliance with export controls and sanctions restrictions.

Sanctions and patent law

Before the sanctions, Russian applicants filed a significant number of applications with the European Patent Office, but statistics show a noticeable decrease in activity. For example, back in the mid-2010s, EPO data indicated a decrease in the share of Russian applications compared to other source countries, reflecting a long-standing trend of Russian technology exports abroad to Europe.

In addition, in the general international context, applications from Russia were relatively small compared to the large patent countries - the United States, Germany, Japan and China.

Impact of EU sanctions on EPO practice

The 14th package of EU sanctions, adopted in June 2024, directly affects the procedure for working with intellectual rights, including patents: EU member states undertake to make every effort not to accept new applications from Russian individuals and legal entities for the registration of IP rights (including patents) and not to register such rights if they belong to Russian applicants.

The EPO is not legally an EU institution, but on December 10, 2024, the EPO Administrative Council adopted amendments to the Rules for the Implementation of the European Patent Convention (EPC), which allow it to ensure the implementation of EU sanctions in the European application process.

According to the new rules and official notices, the EPO:

• The designation of EU member states will automatically be "revoked" if the European application is filed by a Russian applicant after June 25, 2024.
• Applicants are notified of the potential loss of rights and can submit comments or request a change in succession (e.g., transfer of the application to a company from another jurisdiction).
• The EPO suspends or rejects requests for a single European patent involving Russian right holders.

Thus, even if an application is legally submitted, for it to be fully valid in the EU countries, it loses its jurisdictional coverage in the EU due to the automatic withdrawal of the relevant member states.

Important exceptions and legal subtleties are that this does not apply to Russians with dual citizenship or a residence permit in the EU, as a result, they retain the opportunity to file and obtain a patent through the EPO without automatic revocation in EU member states.

Even before the sanctions come into force, the applicant receives a notification and can transfer the application, for example, to companies from a friendly jurisdiction (Kazakhstan, Belarus, etc.) in order to maintain the effects in the EU.

Current Position of Russian Applicants in the EPO

Prior to the sanctions, the EPO considered applications of Russian applicants on a general basis: formal examination, international search, publication and substantive examination.

Following the sanctions on European (regional) applications filed after June 25, 2024, there are restrictions: EU states are considered not elected, and the patent cannot be validated in the EU.

The EPO does not refuse to register applications "as such"; it can still issue a patent in relation to EPC member countries that are not members of the EU (e.g. Switzerland, Turkey, Serbia, etc.).

This means that applicants can still use the EPO to protect rights in these countries, but will lose protection in most key EU markets.

The sanctions regimes imposed on the Russian Federation and its associated entities and individuals have a direct impact on cross-border transactions, including intellectual property. Among the main aspects to consider:

• restrictions on the transfer of technology and technical data;
• prohibitions on certain financial settlements and payment mechanisms;
• restrictions on the work of foreign attorneys in Russia and Russian attorneys in Europe;
• risks of blocking and refusal to service rights in the presence of the applicant's sanction status.

As a result, Russian applicants face uncertainty about the safety of confidential information, the processing of applications in foreign offices, and the possibility of exercising rights after obtaining a patent.

Practice of European Offices

The European Patent Office officially declares its neutrality regarding the political regimes of the applicant countries. However, in practice, there may be difficulties:

• enhanced export control verification;
• The EPO "scans" UBO-registers, taking into account AML rules to verify the applicant's attempt to circumvent sanctions, requests documents and requests information about applicants, founders of companies, with additional notifications to verify the identity of authorised persons in detail;
• potential delays in processing applications;
• the need to confirm the origin of funds for the payment of fees;
• difficulties with representing interests through European attorneys.

It is also important to take into account that many European countries impose their own restrictions on top of EU sanctions, which requires an individual approach to each jurisdiction.

Patenting through the European Patent Office

The European Patent Convention remains the preferred route for maximum coverage of EU markets.

Main advantages:

• the ability to submit one application to cover more than 40 countries;
• a unified examination procedure;
• unified requirements for formula and description.

Practical recommendations:

• Correct formulation of the formula: clear identification of independent points, compliance of the description with the formula (Article 84 EPC), confirmed disclosure of the technical solution (Article 83 EPC).
• The use of the initial PCT filing with the choice of the EPO as a designated Office allows for a temporary postponement of the decision on the country of entry.
• Representation through European Attorneys: Russian patent attorneys must work through European agents or cooperate with European firms to ensure correct interaction with the EPO.

Sanctions risk management. Verification of sanctions purity

If the goal is to obtain an exclusive right in the EU, the most correct way is to apply on behalf of a person with EU citizenship, dual citizenship or who has a permanent residence permit in the EU/EEA/Switzerland (or a completely non-Russian applicant). Confirm this with the relevant documents.

It is not allowed to make joint submissions with a co-creator who is a citizen of the Russian Federation or a legal entity registered in the Russian Federation, or to hide a connection with Russian persons. A joint application with a Russian or the presence of real Russian control will lead to a refusal/suspension, or investigation.

It is necessary to prepare transparent UBO documentation and be ready to provide it to the EPO or any national office upon request. Hidden structures are extremely risky.

Russian companies should:

• Check the sanction status of counterparties, including patent attorneys.
• Exclude the use of services and partners that have fallen under sanctions restrictions.
• Make sure that export and import controls are correctly observed at all stages.
• Conduct sanctions/commercial legal due diligence and prescribe restrictions on use/re-export in contracts if you plan licensing transactions with residents of the Russian Federation. If necessary, consult with a sanctions lawyer.

An error in this part may lead to a refusal to consider the application, or to the cancellation of the patent, or refusal to register the license agreement.

Sanctions affect international payments, so we also recommend:

• Use of banks that are not subject to sanctions restrictions;
• Thoughtful management of foreign exchange transactions;
• Pre-established mechanisms for funding applications and maintaining rights.

Conclusions

1. The best way out is to have dual citizenship or a long-term residence permit in the EU.
2. Use of the PCT strategy. This gives you maximum flexibility and time.
3. Patent research. Assessment of the potential for commercial success in Europe and the risks of competition.
4. Interaction with European professionals. A strong team of foreign attorneys removes a significant legal burden.

Protecting the inventions of Russian applicants in Europe under sanctions is not only a legal but also a strategic task. It requires careful planning, taking into account economic and political realities, and a clear legal position.

A comprehensive approach based on knowledge of the EPC, international sanctions regimes, and the practice of European patent offices will allow applicants to effectively protect their innovations even in difficult international conditions.

The EPO's practice in relation to Russian applications has undergone significant changes due to EU sanctions measures. Russian applicants can no longer count on full protection in EU countries through the EPO if the applications are filed directly after the entry into force of the sanctions. However, some regional protection is still possible through jurisdictions outside the EU, and the PCT remains an instrument that allows you to maintain an international protection strategy.