As is public knowledge, the EU-Ukraine Association Agreement was entered into force in Ukraine on September 1, 2017. However, it took 2 years and 6 months to take the first step in its implementation in the Patent law in Ukraine.
According to Article 9 of the Constitution of Ukraine, and Article 19 of the Law of Ukraine “On international treaties of Ukraine”, the existing treaties; the consent to be bound by The Verkhovna Rada of Ukraine, are parts of the national legislation.
In light of the above, since March 2019, the Department of Intellectual Property of Ministry of Economic Development and Trade of Ukraine have been guided by the provisions of the Association Agreement in the process of considering the extension of the validity term for an invention patent, the object of which is medicinal, an animal protection product, plant protection product etc., and which requires the authorization of the relevant competent authority.
For now, in order to extend the term for the mentioned type of patents, the Ukrainian legislature will use only the provisions of the Article 220 of the EU-Ukraine Association Agreement.
The main feature of this article is that the period of protection for a medicinal or plant protection product shall be extended for a period equal to the period between the filing date and the date of receipt of authorization by the competent authority for use, reduced by five years.
For comparison, according to the provisions of the previous Ukrainian legislation, the period of protection for a medicinal or plant protection product shall be extended for a period equal to the period between the filing date and the date of receipt of authorization by the competent authority for use, but not more than for 5 years.
The calculation formula for extending the validity term for such kind of patents has changed and patent holders need to take this into account when implementing their rights and commercial plans in Ukraine.
We hope that in the near future, all requirements and provisions of the Association Agreement with the EU and Ukraine will work in full; and all modifications which were implemented in the framework of the Agreement, transforms the system of legal proceedings and legal practices in Ukraine in the field of intellectual property rights protection even closer to European standards.
