Maxim Ali chose and commented for Delovoy Peterburg on the most significant IP/IP litigation case

Delovoy Peterburg newspaper asked St Petersburg lawyers to highlight the most important and high-profile litigations involving local companies in current legal practices over the past year. Specially for the media, Maxim Ali, Partner, Head of IP/IT Practice at Maxima Legal, told about the dispute on protection of the exclusive right to a computer program.

The St Petersburg-based firm Barsum developed a programme of the same name, Barsum. Some of the developers of that product moved to Inline Pro, which then created a similar product, Mentol Pro. Barsum suspected that its competitors had borrowed its source code, which led it to apply to the police and the Commercial Court of St Petersburg and the Leningrad Region.

An appeal to law enforcement authorities helped Barsum to obtain evidence. The company submitted a specialist’s report to the court and the seized disks with the disputed software were examined in the court. In addition, an expert opinion of the Ministry of Justice in a criminal case was presented, which said that the Barsum software had been plagiarised. Nevertheless, the Commercial Court of St Petersburg and the Leningrad Region did not see any violations and rejected Barsum.

However, the 13th Commercial Court of Appeal sided with the plaintiff. The court cancelled the registration of Mentol Pro, banned its use, ordered the defendant to publish information about the infringement and in addition recovered RUB 2m in compensation.

“There is another problem here: this appeal decision has a prejudicial effect on the criminal case. That is, for the former developers of Barsum it is much easier to get behind bars, and for copyright violation you can be imprisoned for 6 years,” said Maxim Ali.

The  Intellectual Property Court invalidated the 13th Commercial Court of Appeal`s ruling, but the Supreme Court overturned the ruling and upheld the decision of the appeal.

“This case shows a problem that has been peculiar to our justice system for a long time. Courts are willing to trust the conclusions of an expert without going into the logic and substance of their reasoning. Usually it is enough that some basic restrictions are not violated: that there is no interest of the expert in the outcome of the case, that his conclusion complies with regulatory requirements, etc. In this case it is very interesting what exactly was the meaning of the borrowing of Barsum program, as the court considered, and whether such borrowing really constitutes an infringement of copyright. Copying parts of the source code and certain elements of the programme’s structure may be caused by various factors. Both plagiarism and, for example, the use of common techniques or free software libraries. By the way Inline Pro in the Supreme Court just said that copying parts of the program is connected with the use of the same Open Source solutions (which don’t belong to any party),”explained Maxim Ali.

To read the full article (in Russian) please visit Delovoy Peterburg newspaper website >>>