Maxim Ali has explained to Pravo.ru the contrary logic of the courts of different instances while considering the dispute over the protection of an exclusive right to a computer programme

Maxim Ali, Partner, Head of IP/IT Practice at Maxima Legal, told Pravo.ru legal media that software developers often move from one company to another and create their own startups in the same area in which they used to work. According to the expert, the former employer sees that his former employee has created a similar product and begins to suspect him or her of borrowing the source code. If the case comes to court, the main role in the process will be played by an expertise, which compares the source code of two products. At the same time, Pravo.ru drew attention to a case examined by the Supreme Court of the Russian Federation, in which there were several expertises with opposite conclusions, and the Intellectual Property Court and the highest court found differences in legal approaches.

In particular, Barsum Company tried to prove the borrowing of elements of Barsum Bill Works’ billing and quality control software when Inline Pro developed a similar system, Mentol Pro. The Commercial Court of St Petersburg and the Leningrad Region rejected Barsum’s application to engage Rospatent (the Federal Service for Intellectual Property) in the case and dismissed the company’s claim based on the conclusions of two expertises that the software was different. The appeal agreed with the necessity to involve Rospatent in the process and also appointed a new expertise by the rules of the first instance, which confirmed the borrowings. The Intellectual Property Court again referred to the expertises conducted in the first instance, stating that the consideration of the dispute on the protection of the exclusive right to the program without the involvement of Rospatent is not in itself a basis for the cancellation of the judicial act. However, the Russian Supreme Court reversed the cassation judgment and upheld the appeal one. According to the highest court, the Intellectual Property Court exceeded its procedural powers by giving preference to the results of the expertises obtained in the court of first instance and rejecting the conclusion obtained in the court of appeal.

“The appeal proceeded to the first instance rules on a rather artificial ground (the involvement of Rospatent in the case) and, in effect, replaced the previous expertises with another one. Perhaps, the Intellectual Property Court wanted to make the process more consistent and predictable. The logic of the Supreme Court is that the Intellectual Property Court could not arbitrarily choose between the expertises of two instances, especially when the expert opinion from the appeal was not formally illegal,” explained Maxim Ali specially for Pravo.ru.

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