News / 2019

An announcement of the creation of a patent court in Poland

On April 5th, 2019, a draft amendment to the Code of Civil Procedure and other acts prepared by the Ministry of Justice was published, the purpose of which is to create within the Polish common court the separate organizational units that would deal with intellectual property issues understood as matters concerning copyright laws, industrial property and associated cases regarding combating an unfair competition.

The draft amendment proposes to transfer most of the intellectual property matters to the sole cognition of the District Court in Warsaw. These will include infringement and invalidation cases and cases on the establishment of a non-infringement of exclusive rights relating to the intellectual property issues. One of the exceptions to this rule, however, would be cases on a patent invalidation which would still be examined in the course of a dispute proceedings by the Patent Office of the Republic of Poland and in subsequent instances by the relevant administrative courts.

In addition, provisions are proposed to clarify the rules of proceedings in intellectual property matters which in particular introduce and/or determine the implementation of the following procedural measures in line with the guidelines contained in Directive 2004/48/WE: a request for preserving evidence (compare Art. 7 of the Directive), a request for disclosing or issuing evidence (compare Art. 6 of the Directive) and request for ordering information (compare Art. 8 of the Directive).

The introduced changes will certainly facilitate an effective enforcement of exclusive rights in Poland to the owners of such rights.

In turn, the provisions claryfing the rules on bringing an action for establishing a non-infringement are to be served as abuse of the exclusive rights. An action for establishment has existed in the Polish system for a long time (vide art. 189 of the Code of Civil Procedure), however, making the right to bring an action dependent on having a legal interest means that in practice in patent cases, such preventive action is usually difficult, precisely due to the problems related to demonstrating that the Plaintiff has a legal interest before actually taking action that could constitute a patent infringement. The provisions currently proposed represent a significant progress in this respect, as they determine that the lack of confirmation by the Patentee (here defendant) in due time that the activities which the action pertains to do not constitute an infringement of the exclusive right, especially a patent, is sufficient for bringing an action effectively (vide art. 479127 § 2 of the Code of Civil Procedure proposed in the draft).

The presented draft is undoubtedly a turning point in the development of the Polish common court which would deal with matters related to the intellectual property.

According to the deadline set in the draft, the Intellectual Property Court would start its operation in January 2020.