RUSSIA'S IP COURT
“A SKILLED PERSON IS SOMEONE WHO HAS NECESSARY THEORETICAL AND PRACTICAL KNOWLEDGE IN A RESPECTIVE FIELD AND PROVIDES CONSULTATIONS ON
MATTERS RELATED TO THE SUBSTANCE OF THE DISPUTE.”
for concluding whether providing independent expertise on the case materials is needed, whether such expertise is possible, what questions are to be asked, and also to help the court in understanding some professional details in the expertise review where special knowledge is required. It should be understood that forwarding an
enquiry to a scientist or inviting a skilled person are not equal to appointing an independent expert, and therefore a request for expertise cannot be interpreted as a request for inviting a skilled person or forwarding an enquiry to a scientist. When a party to the dispute submits an appeal for appointing an expert, the IP court shall make a decision according to the APC. A consultation given by a skilled person shall
be considered as evidence that diff ers by its nature from an expert’s opinion. An expert is appointed by the court following a request by participants of the case and this expert carries out investigations on the essence of scientifi c and technical matters concerning the subject of the dispute before preparing a report. A skilled person is invited by the court and gives oral consultation without preliminary investigations. T ere is no need for the court to adjourn proceedings to invite a skilled person. T erefore, forwarding an enquiry to a scientist
or inviting a skilled person cannot serve as the grounds for suspending the hearing. In accordance with the APC, the hearing may be suspended only when the court is awaiting answers to an enquiry. T e IP court may place any questions requiring
specifi c professional scientifi c and technical knowledge before scientists, skilled persons and other professionals who have theoretical and
www.worldipreview.com
practical knowledge. T e content of the questions shall be defi ned only by the court. An enquiry may also be forwarded in order to
gain the opinions of various scientists regarding certain legal aspects. However, practical use of the legal aspects shall be an exclusive function of the court. If an enquiry was forwarded during the case
hearing, then this fact shall be refl ected in the court’s decision together with the details regarding what questions were asked as well as the answers received.
Taking into consideration that a response to
an enquiry shall not be considered as evidence, the court is not obliged to assess the responses received from the scientists. T e court has a right to take into account
the opinions of the scientists when studying evidence presented by
parties and when
making a decision. T e court is not bound by the opinions of the scientists when making a decision. Having a scientist’s opinion does not relieve the court from explaining the reasoning that led to its conclusions.
Mikhail Khmara is a Russian and Eurasian patent
He specialises in technology areas such as physics of solid state, metallurgy, optical communications
handles patent oppositions from their fi ling to presenting cases in court hearings. He can be contacted at:
khmara@ars-patent.com
attorney at ARS-Patent. and electronics. He
Tatiana Aparina is a Russian and Eurasian patent attorney at ARS-Patent. She worked for 18 years at Rospatent as a chief patent examiner and a member of the Patent Cooperation Treaty (PCT) group, dealing with the development and implementation of Patent Law Treaty terms and proposals for reforming the PCT system. She can be contacted at: offi
ce@ars-patent.com
World Intellectual Property Review Annual 2015
59
RAWPIXEL /
SHUTTERSTOCK.COM
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