The Supreme Court explained what will happen to patents whose terms expired during martial law
The Law of Ukraine dated April 1, 2022 No. 2174-IX "On the Protection of the Interests of Persons in the Field of Intellectual Property during Martial Law Introduced Due to the Armed Aggression of the Russian Federation Against Ukraine" applies not only to the deadlines for procedural actions in the field of intellectual property but also to the terms of validity of the property rights of intellectual property themselves. If the term of a patent expired during martial law, such a patent is considered valid until the day following the day of termination or cancellation of martial law.
This conclusion was reached by the Commercial Cassation Court as part of the Supreme Court.
A company filed a lawsuit against the State Organization "Ukrainian National Office of Intellectual Property and Innovations" (Ukrnoivi) to cancel the decision to refuse to extend the term of validity of property rights to the invention "VIRAL ANTIGENS" under Ukrainian patent No. 85536 and to oblige the state registration of additional patent protection and issuance of an additional protection certificate.
The lawsuit was motivated by the fact that the patent term expired on March 17, 2023, i.e., during martial law, and therefore, according to Law No. 2174-IX, the rights under the patent remained valid. The plaintiff indicated that the application submitted in May 2025 for additional protection was lawful.
The decision of the commercial court, upheld by the appellate commercial court, satisfied the claim. The courts established that the Ukrainian patent concerned an active pharmaceutical ingredient of a medicinal product, and the practical use of the invention became possible only after the state registration of the GARDASIL® 9 vaccine in July 2023. Therefore, the plaintiff had the right to additional patent protection according to Article 27-1 of the Law of Ukraine "On the Protection of Rights to Inventions and Utility Models."
Ukrnoivi stated in the cassation appeal that Law No. 2174-IX only suspends the deadlines for actions related to the protection of intellectual property rights but does not extend the validity period of patents. According to the appellant, after the expiration of the 20-year patent term, the right to additional protection was lost.
The Commercial Cassation Court of the Supreme Court dismissed the cassation appeal and agreed with the conclusions of the lower courts.
The court noted that Law No. 2174-IX is imperative and explicitly provides that property rights of intellectual property, the term of which expires during martial law, remain valid until its termination or cancellation. Therefore, patent No. 85536 could not be considered terminated on March 17, 2023.
The Commercial Cassation Court emphasized that the right to additional patent protection has a compensatory nature and is aimed at protecting the interests of pharmaceutical invention owners, since the actual use of such inventions is possible only after the state registration of the medicinal product.
The court also pointed out that Law No. 2174-IX applies to all types of property rights of intellectual property, and Ukrnoivi's arguments regarding the effect of this law on patent validity terms are unfounded.
Decision of the Commercial Cassation Court of the Supreme Court dated April 30, 2026, in case No. 910/9528/25.
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