05-07-2024 13:45
by Dr. rer. nat. Sergej Sloboshanin

Russia - Recognition of priority for a cascading Russian divisional application

As reported in our news blog of November 2023, the Presidium of the Russian Intellectual Property Court (IPC) with its decision of 23.10.2023 excluded for a cascading Russian divisional application the possibility of establishing the priority date according to an initial parent application that has already been registered as a patent.

In June 2024, the Supreme Court of the Russian Federation issued its Decision No. 300-ES23-29423 in this matter (case number IPC-552/2022, KRKA vs. ASTRAZENECA), which overruled the above-mentioned IPC decision of 23.10.2023 and which has clarified the question about the possible recognition of the priority date for a series of Russian divisional applications (cascading divisional applications).

The Supreme Court pointed out that under the interpretation of the term “parent application” (in the meaning of Article 1381(4) of the Civil Code of the Russian Federation) that was applied in the above-mentioned IPC decision, it would become practically impossible to file subsequent divisional applications, as they would not meet the patentability requirement of "novelty" over the very first parent application, so that this very first parent application would prevent the granting of patents on the subsequent divisional applications.

Thus, the Supreme Court of the Russian Federation clarified by its present Decision in connection with the priority date for “cascading” divisional applications that also a divisional application that was split up from an earlier divisional application has the right to enjoy the priority date of the very first parent application, which, consequently, does not constitute prior art in the examination of said cascading divisional.

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