Dmitry Rozhkov and Tatyana Kiparisova commenting in Legal Digest on Pravo.RU
Dmitry Rozhkov, Counsel of Antitrust Regulation Practice at Infralex, commented on the intentions of the Federal Antimonopoly Service of Russia to review antimonopoly immunities in the field of intellectual property (IP). According to the expert, in order to avoid possible violations of intellectual property rights, the most logical option is to cancel the unconditional immunity for IP rights holders, and transfer to the government the authority to determine in which cases the use of intellectual property is permissible.
However, Dmitry notes that based on the current version of the bill, even fair use of rights can be recognized as restricting competition. It is important to remember that the creation of IP is associated with long and expensive research, which the copyright holder can compensate for with exclusive rights.
"The proposed wording should not be evaluative, but should contain clear prohibitions on specific actions to exercise exclusive rights to the results of intellectual activity. For example, as provided for in Part 1 of Article 10 or Part 1 of Article 11 of the Law "On Protection of Competition," Dmitry comments.
Associate of the Antimonopoly Regulation Practice at Infralex Tatyana Kiparisova shared her opinion regarding the sanction for violation of antimonopoly legislation by the pharmaceutical company Akrikhin in case No. A40-305697/2024. The expert recalled the positions of the highest courts on this issue:
- on the resolution of the Constitutional Court of the Russian Federation dated 25.02.2014 No. 4-P: sanctions for administrative offenses must be clearly spelled out in the law with the possibility of foreseeing the consequences in advance;
- on paragraph 31 of the Review of judicial practice of the Supreme Court of the Russian Federation: all income can be transferred to the budget only when it is impossible to calculate the fine based on the company's revenue in the relevant market.
"The FAS's possible conviction that a potential administrative fine is disproportionate to the offense committed should not allow the state body to demonstrate flexibility in choosing a sanction that is not based on the provisions of the current law. Moreover, as the courts indicated in the Akrikhin case, the decision of the antimonopoly body must provide evidence of the impossibility of calculating an administrative fine according to the the total amount of the offender's revenue from the sale of all goods (works or services)," Tatyana concluded.