The share of cases involving the rights to such a type of result of intellectual activity as a selection achievement is not very significant in the practice of IP Court, however, 2021-2022 was marked by an increase in the number of cases in this category.
In accordance with paragraph 1 of Art. 1412 and Art. 1413 of the Civil Code of the Russian Federation, breeding achievements are plant varieties and animal breeds registered under the condition of relevance to botanical and zoological genera and species, subject to the requirements of novelty, distinctness, uniformity and stability.
Violation of the exclusive right to a plant variety is most often expressed in the sowing of the relevant seeds, and losses in such cases in practice were calculated by multiplying the number of seeds sown by the defendant by the amount of the license fee for the use of varieties approved in the region.
Also, a violation of the exclusive right to a plant variety can be expressed in the certification of seeds (obtaining a certificate of conformity) with their subsequent sale. It was for such a violation that the plaintiff in case N A72-2222 / 2019 demanded payment of lost profits (unreceived license fee).
The consideration of the case dragged on for almost two years and passed two rounds of instances with opposite results, in particular, the courts disagreed about the omission of the limitation period. In the first round of the case, the courts considered that due to the public availability of information from the register of certificates published on the relevant website, the plaintiff could learn about the actions of the defendant almost immediately, but it turned out that the register of certificates for the year in question was created only three years later.
However, in the end, the claim was satisfied - the courts determined the lost profits to be compensated by multiplying the volume of seeds subject to certification by the actual sale price of the seeds by the defendant, and highlighting from this amount the percentage of royalties contained in the license agreement between the plaintiff and a third party.
2021 and 2022 are also marked by a series of multi-breed recognition cases. This series is characterized by the same plaintiff and similar circumstances, however, none of the cases ended in satisfaction of the claim.
In the cases under consideration (Resolutions of the Presidium of the SIP dated 04/11/2022 N С01-233/2022 in case N SIP-994/2020, dated 03/17/2022 N С01-198/2022 in case N SIP-993/2020, dated 01/24/2022 N С01-2061/ 2021 in case N SIP-794/2020, dated 12/27/2021 N C01-2031/2021 in case N SIP-997/2020, dated 08/11/2021 N C01-1143/2021 in case N SIP-995/2020), patents for controversial breeding achievements (rabbit breeds) were issued in the name of the institute in which the development took place. The plaintiff, the head of the institute, claimed co-authorship of the breeds, arguing that the patents are invalid because he was not listed as the author.
However, the fact that the breeds were created using research data obtained during the period of the plaintiff's tenure as director of the institute was not enough to establish a creative contribution. The courts acknowledged that the plaintiff had the opportunity to participate in the creation of controversial selection achievements as one of its authors, but only theoretically. Although the plaintiff referred to a number of his scientific publications on the topic of research, he was not the sole author in any of them. Moreover, documents on education and scientific specialization of the plaintiff do not confirm the coincidence of the areas of his scientific activity and scientific activity on the creation of disputed breeds.
Managing Partner / Patent Attorney of the Russian Federation / Eurasian Patent Attorney