1 Legal framework

1.1 Which laws and regulations govern patent litigation in your jurisdiction?

Due to the bifurcation principle, infringement and invalidity are decided in separate proceedings before:

  • civil courts (ie, the Patent Court in Warsaw; see question 1.3); and
  • the Polish Patent Office (PPO)/the administrative courts.

The Code of Civil Procedure (CPC) governs most civil litigation. Litigation before the PPO is governed by the procedural rules of the Industrial Property Law (IPL).

The Code of Administrative Procedure governs:

  • proceedings before public administration authorities, including the PPO; and
  • patent revocation proceedings before the PPO, to the extent that such proceedings are not governed by the IPL.

However, due to their contentious nature, proceedings before the PPO differ from ordinary administrative proceedings and are more akin to court proceedings (see question 11.2).

In contentious cases, administrative courts have jurisdiction to hear appeals of PPO decisions. Such proceedings are governed by the Act on Proceedings Before Administrative Courts.

1.2 Which bilateral and multilateral agreements with relevance to patent litigation have effect in your jurisdiction?

Poland is a signatory to the following bilateral and multilateral treaties:

  • the Paris Convention for the Protection of Industrial Property (OJ 1975, No 9, pos 51);
  • the Agreement on Trade-Related Aspects of Intellectual Property Rights (OJ 1996, No 32, pos 143);
  • the Convention Establishing the World Intellectual Property Organization (OJ 1975, No 9, pos 49 as am);
  • the European Patent Convention;
  • the Act Revising the European Patent Convention 2000; and
  • the Patent Cooperation Treaty 1970.

The following EU laws regulating patents and patent litigation also apply to Poland as an EU member state:

  • the EU Customs Enforcement Regulation (608/2013); and
  • the EU IP Enforcement Directive (2004/48/EC).

Poland is not a party to the Unified Patent Court Agreement (2013/C 175/01). However, Polish entities may:

  • apply to the European Patent Office for a European patent with unitary effect; and
  • litigate before the Unified Patent Court in the case of an alleged infringement of a patent with unitary effect.

EU rules apply to both:

  • Polish domestic patents; and
  • patents granted under the European Patent Convention and duly validated in Poland.

International treaties become legally binding in Poland only after they have been ratified. They become a source of law in Poland after ratification. International legislation ratified through parliamentary acts takes precedence over national law.

1.3 Which courts and/or agencies are responsible for interpreting and enforcing the patent laws? What is the framework for doing so?

The PPO is the public authority responsible for patent law. It:

  • receives and examines applications for inventions;
  • decides on the grant of patents; and
  • issues decisions in litigation proceedings in the instances specified in the IPL – in particular, on the invalidation of patents.

Decisions of the PPO may be appealed:

  • to the Voivodeship Administrative Court; and
  • then to the Supreme Administrative Court.

Patent infringement cases are heard by the civil courts. The Warsaw District Court has exclusive jurisdiction in patent cases (Article 479-90(2) of the CPC). A party may appeal a decision of the Warsaw District Court to the Warsaw Court of Appeal. Under special rules, a cassation appeal may be lodged with the Supreme Court against a judgment of the second-instance court (see also question 13.1).

2 Forum

2.1 In what forum(s) is patent litigation heard in your jurisdiction? Are patent infringement and validity decided in the same forum or separate forums?

Patent infringement cases are heard in court. At the first-instance level, there are five district courts with jurisdiction over IP rights infringements. The XXII Intellectual Property Division of the Warsaw District Court has exclusive jurisdiction over patent matters. As a result, since 1 July 2020, there have been limited options for forum shopping in patent cases because the XXII Intellectual Property Division has exclusive jurisdiction and the VII Commercial and Intellectual Property Division of the Warsaw Appellate Court has second-instance jurisdiction. Appellate decisions are legally binding and enforceable. However, an extraordinary appeal, including a cassation appeal, may be lodged with the Supreme Court (see question 13.1).

Due to the bifurcation principle, infringement and invalidity are decided in separate proceedings. In narrowly defined categories of cases, the Polish Patent Office's (PPO) jurisdiction in patent cases extends to litigation. In particular, these include proceedings concerning the invalidity of a patent, for which appellate competence lies with the administrative courts. Therefore, the Voivodship Administrative Court in Warsaw has jurisdiction to hear complaints against decisions of the PPO.

The Polish IP courts have jurisdiction to hear cases involving infringements of patents valid in Poland, such as:

  • national patents granted by the PPO; or
  • European patents granted by the European Patent Office and validated in Poland.

Furthermore, under the general rules of jurisdiction/venue, Polish IP courts may, in theory, have jurisdiction over issues of infringement of a foreign patent if the defendant is a Polish entity domiciled or resident in Poland.

2.2 Who hears and decides patent disputes (eg, a judge, a panel and/or a jury)?

At first instance, patent infringement cases are tried by a judge sitting alone. At the appeal stage, cases are heard in court by three-judge panels. The Supreme Court hears the cassation appeal in a panel of three judges.

In most patent cases, the court appoints technical experts to serve in a special advisory capacity. Although they are not involved in the adjudication process, their opinion constitutes important evidence. They provide opinions on matters requiring expert knowledge, which serve as the foundation for the trial judge(s) to properly evaluate the evidence and resolve the case.

Litigation before the PPO is heard by the College for Contentious Matters, which sits in panels comprised of a chairman and two members.

The college's members are not judges. The chair of the college may be a PPO employee who meets the requirements set out in the Industrial Property Law, such as:

  • being a graduate of a Polish or foreign law school – although in the latter case, the holder's degree must be recognised in Poland; and
  • either:
    • having completed legal training as a judge, attorney at law, advocate, prosecutor or professor or doctor of law with a post-doctoral qualification; or
    • having worked for 10 years in law-related positions in Polish public institutions.

In addition to the chair, a college panel includes experts (ie, PPO employees) authorised by the president of the PPO to decide on contentious issues.

2.3 Are there any opportunities for forum shopping in your jurisdiction? If so, where and how do those opportunities exist?

As the Warsaw District Court has exclusive competence over patent matters (Article 479-90 of the Code of Civil Procedure (CPC)), there is no possibility for forum shopping within the Polish jurisdiction.

Cases on appeal from decisions of the PPO are tried by the Voivodeship Administrative Court in Warsaw.

The choice of Polish jurisdiction is possible on the basis of a prorogation or waiver agreement. In the absence of a choice of jurisdiction, the infringer may, as a general rule, be sued in the court of the place of its habitual residence. Alternatively, action may be brought in the court of the country in which the infringement occurred. These matters are governed by the CPC and the EU Brussels I-bis Regulation (1215/2012).

3 Parties

3.1 Who has standing to file suit for patent infringement? What requirements and restrictions apply in this regard?

The patent holder can sue for patent infringement. The fact that a patent has been granted is formally confirmed in a patent certificate issued by the Polish Patent Office (PPO). In the case of joint ownership of a patent, any one of the joint owners may, without the consent of the other joint owner(s), assert claims for patent infringement, unless all of the joint owners have agreed otherwise.

If a patent is transferred, the transferee must have the transfer entered in the Patent Register in order to be able to claim title against third parties. In other words, the mere fact that a patent has been transferred to a third party under an agreement does not entitle such third-party transferee to bring a claim against infringers. The entry in the Patent Register is a precondition for legal standing if a patent has been transferred.

A licensee has standing to file suit for patent infringement if:

  • the licence is exclusive (ie, no other entity is entitled to obtain it); and
  • the licence has been recorded in the Patent Register.

Conversely, a non-exclusive licensee may not bring patent infringement claims. However, depending on the specific patent background, such claims may be lodged under the unfair competition laws. This is also true of exclusive licensees which are unable to demonstrate the fulfilment of the above cumulative conditions.

A distributor cannot sue for patent infringement unless it is also an exclusive licensee.

3.2 Can a patent infringement suit be brought against a defendant who is a foreign entity with only a residence or place of business outside the jurisdiction?

Yes. According to the Code of Civil Procedure (CPC) and the EU Brussels I-bis Regulation, if a case concerns a tortious obligation, such as patent infringement, the court of the country in which the tortious obligation (damage) arose has jurisdiction. In such case, the case may be brought before a court in Poland.

A distinction must be made between:

  • the determination of national jurisdiction (where the place in which the infringement occurred may be claimed as the connecting factor); and
  • the applicable law (where the territory in which the patent is protected as invoked by the plaintiff is relevant).

Even if a specific court asserts that it has jurisdiction over the case, this does not mean that the law of that jurisdiction will automatically apply. Thus, it cannot be ruled out that the court will apply a foreign law as the law of the country of protection if the plaintiff so requests.

3.3 Can a single infringement action be brought against multiple defendants? What requirements and restrictions apply in this regard?

Yes, a single infringement action can be brought against multiple defendants based on the substantial and procedural laws. In addition to the perpetrator, the instigator or abettor, as well as the knowing beneficiary of the tort, is liable for damages (Article 422 of the Civil Code). If several people are liable for tortious damage, their liability is joint and several (Article 441(1) of the Civil Code). However, the foregoing applies only to the liability for damages, since the Industrial Property Law (IPL) does not recognise indirect infringement (see question 4.1). Consequently, the patent holder may bring an action against potential multiple defendants.

In civil proceedings, multiple individuals may be joined as defendants (or plaintiffs) in the same case if the subject matter of the dispute involves specific rights or obligations:

  • that they share; or
  • that arise from the same question of law or fact (Article 72(1)(1) of the CPC).

However, joint and several liability under patent infringement does not require all defendants to participate in the proceedings, since the patent holder is entitled to demand performance from the potential defendant of its choice.

3.4 Can a third party seek a declaration of non-infringement or invalidity in your jurisdiction? If so, how?

An alleged infringer may initiate proceedings before the IP courts for a declaration that its activities do not infringe a patent or an additional IP right.

Article 479-129 of the CPC explicitly specifies that a negative declaratory judgment claim may be brought if:

  • the patent holder has acknowledged that the alleged infringer's actions may potentially infringe the patent; or
  • the patent holder did not confirm, within the timeframe duly specified by the alleged infringer, that the actions covered by the claim did not constitute infringement of the patent.

It is unclear how the declaratory proceedings affect subsequent infringement litigation. In particular, there is no settled case law on how non-infringement proceedings affect subsequent patent infringement litigation between the same parties and/or on the same facts. Most legal commentators agree that such litigation should be stayed until the non-infringement case is decided. Anti-suit injunctions are not allowed under Polish patent law.

Invalidity proceedings are conducted before the PPO. According to Article 89(1) of the IPL, a patent may be declared invalid on the motion of a natural or legal person that can prove the following:

  • The conditions for the grant of the patent have not been fulfilled;
  • The invention was not disclosed in a sufficiently clear and comprehensive manner to enable the patent holder to carry out the invention;
  • The patent was granted for an invention that is not covered by the contents of the invalidation motion or the original application; or
  • The patent claims:
    • do not clearly and concisely define the claimed substance; or
    • are not fully supported by the description of the invention.

4 Patent infringement

4.1 What constitutes patent infringement in your jurisdiction?

A patent vests in the patent holder the sole right to use an invention for profit or professional purposes in Poland. The subject matter of the patent is always defined by the patent claims of the patent document. A patent is valid for 20 years from the date on which the patent application is filed with the Polish Patent Office (Article 63 of the ILP).

A patent holder may prohibit unauthorised use of its patented invention for profit or for professional purposes – including in particular the following – if a disputed third-party product or process meets all the technical features of the protected invention as set out in an independent patent claim:

  • making, using, offering, introducing on market or importing for profit or for professional purposes the invented product; or
  • using the invented process and/or using, offering, introducing on the market or importing for these purposes products obtained directly from the invented process (Article 66(1) of the ILP).

Under Polish law, the patent holder has no possibility to prohibit indirect infringement – for example, in the form of supplying a third party with the means used to carry out the invention. Article 66(1) of the ILP prohibits only direct use of the invention. Such cases may potentially include a scenario where:

  • two or more entities acting in concert implement all technical features of a patent claim; or
  • a third party manufactures an essential element (part) of the protected invention for its subsequent use in assembling, by another entity, the final protected product.

4.2 How is infringement determined?

An infringement occurs whenever a third party unlawfully partakes in activities mentioned in Article 66(1) of the ILP. Patent infringement is determined on the basis of the valid and final decision of a competent court. The proceedings cannot be instituted ex officio, so a move by the patent holder is required in this respect; the case is heard in at least two instances (see question 11.2).

Polish law provides for procedures to assist a patent holder in establishing the infringement of a process patent. The IPL provides for an extended scope of protection for process patents, so that a patent for an invention relating to a manufacturing process also covers products directly obtained through that process. There is a legal presumption of infringement with respect to products made using the patented process if:

  • they are new products; or
  • the patent holder demonstrates that, despite reasonable efforts, it has been unable to identify the actual manufacturing method of a product used by a third party.

In such cases, the disputable product which can be obtained using the patented method will be presumed to have been so produced.

4.3 Does your jurisdiction apply the doctrine of equivalents?

Polish law does not expressly regulate the doctrine of equivalents. However, the doctrine of equivalents was recognised by the Supreme Court in V CSK 149/15 (10 December 2015), but its application before the common courts is inconsistent. The Supreme Court developed a five-step comparative analysis to assess whether the disputed solution is equivalent to the solution protected by the patent:

  • determination of the scope of the patent on the basis of the patent claims, description and drawings, taking into account:
    • the technical problem underlying the given invention;
    • the essence of its solution; and
    • the nature of the protected invention;
  • determination of the technical characteristics of the disputed solution, including:
    • the technical problems underlying the solution; and
    • the essence of the disputed solution;
  • determination of the technical features of the disputed solution which functionally reflect the solutions already existing in the prior art (determination of the closest prior art for the disputed solution);
  • comparison of the determined scope of the patent with the technical features of the disputed solution in order to assess which features of the protected solution are reflected in the disputed solution as the obvious equivalents; and
  • determination of:
    • the instances in which the technical features (the obvious equivalents) reproduced in the disputed solution determine the essence of the technical solution protected by the patent; and
    • whether those features could have been developed by an 'expert' in a given field without knowing the patented solution.

On the other hand, one of the positions expressed in the case law is that when determining the scope of a patent, the patent claims should be interpreted literally. According to the Supreme Administrative Court, it is not permissible to interpret patent claims broadly. A narrow interpretation of patent claims should be limited to its literal content (Judgment of the Supreme Administrative Court II GSK 667/10 of 19 January 2011). Because the purpose of a patent is to grant a monopoly over a specific type of technical solution, an expansive interpretation of patent claims is prohibited under the constitutional principle of the freedom of business. Worth mentioning is the 26 June 2023 judgment of the Warsaw District Court in a case concerning the infringement of European Patent PL/EP 1584721. The ruling confirmed the validity of the application of the theory of equivalents in the Polish patent protection system. According to the court, the application of the theory of equivalents is made possible by an indirect interpretation of the patent claims, which makes it possible to seek to establish the scope of the exclusivity which would guarantee:

  • fair protection for the rights holder; and
  • a reasonable degree of certainty for third parties.

In the relevant case, the court upheld the claim in part and ordered an injunction against patent infringement.

4.4 Is wilful infringement recognised? If so, what is the applicable standard?

The fulfilment of the premise of illegality (ie, violation of patent rights) is sufficient to establish patent infringement. The patent holder is then entitled to demand the patent infringer, among other things, to:

  • cease the infringement; and
  • surrender any unlawfully obtained benefits (Article 287(1) of the ILP in principio).

In order to claim compensation for damages, the patent holder must also prove the guilt of the infringer (Article 287(1) of the ILP in fine).

Under Polish law, the concept of guilt is understood more broadly than intent in the strict sense, since Polish law also recognises a milder form of guilt – that is, unintentional misconduct (lack of due care). As far as patent infringement is concerned, the premise of fault exists if the following conditions are met:

  • The infringer was aware or – had it acted with reasonable diligence – should have been aware of another party's patent right; and
  • The infringer knew that its unauthorised actions fell within the scope of the patent right.

As a rule, Polish law does not differentiate liability for damages depending on the degree of fault. In principle, damage must be fully compensated to its actual extent. Only in relations between natural persons may the amount of compensation be limited given the financial situation of the injured party or the perpetrator of the damage.

5 Bringing a claim

5.1 What measures can a patent holder take to enforce its rights in your jurisdiction? Are interim measures available before receiving a ruling on the merits?

If a patent is infringed, the patent holder can seek protection under civil law by:

  • initiating civil proceedings;
  • applying for an injunction; or
  • entering into mediation.

The patent holder may request the following:

  • cessation of the infringement;
  • surrender of the unjustly obtained benefits;
  • compensation for damages either in accordance with the general terms or by payment of a sum of money corresponding to the licence fee or other appropriate remuneration which would have been due to the patent holder had it consented to use of the invention;
  • withdrawal/recall or destruction of the infringing products and raw materials and devices used in their production (these may also be awarded to the patent holder to compensate for damages caused); and
  • publication of the ruling.

A party may request an injunction if it:

  • can establish the plausibility of its claim; and
  • has a legal interest in the granting of the injunction.

According to the most recent amendment to the Code of Civil Procedure (CPC), which took effect on 1 July 2023, when assessing the plausibility of a claim in the context of interim injunction proceedings, the court must consider the likelihood of the patent being declared invalid in another proceeding that is pending, which the court may determine by interrogating the parties to the proceedings, unless this is already known to the court through official channels. A request for an injunction order should contain information on whether any patent invalidation proceedings are pending to the parties' knowledge.

Polish law does not specify any procedural steps that a patent holder must take to initiate court proceedings. However, patent litigation may fall under the additional procedural regime of court proceedings in commercial matters. Under these specific procedural rules, the court may impose costs on the plaintiff if it failed to request the other party (defendant) to settle the dispute voluntarily, irrespective of the final outcome of the litigation.

5.2 What is the limitation period for patent infringement in your jurisdiction?

Claims for infringement of a patent become time barred after three years. The limitation period starts to run from the date on which the patent holder becomes aware that its rights have been infringed and by whom; this applies separately to each instance of infringement. Notwithstanding, a claim becomes ultimately time barred five years after the date of infringement of the patent.

The limitation period is suspended in the period between filing of the patent application for the invention with the Polish Patent Office (PPO) and grant of the patent. Here, the general rules under the Civil Code also apply – in particular, the limitation period will not start to run or, if started, will be suspended for the duration of mediation or conciliation proceedings (Article 122 of the Civil Code).

The limitation period is interrupted (ie, reset) by any direct move of a party before a court or another authority which is authorised to hear cases or enforce specific claims or before a conciliatory court with a view to:

  • vindicating sums; or
  • establishing, satisfying, securing or acknowledging the claim.

If the infringement is continuous, the limitation period will run separately for each instance of infringement, understood as each consecutive day on which infringement takes place (see Supreme Court Ruling III CZP 30/20, I CSK 540/13).

As of 1 July 2023, the statutory limitation period to file a motion for relief from the preliminary injunction is six months from the date on which the patent holder became aware of the infringement.

5.3 Must the alleged infringer be notified in advance before a claim is brought?

No, there is no requirement to notify the alleged infringer in advance before patent infringement proceedings are initiated. The enforceability of a claim for patent infringement does not depend on the service of the relevant notice on the infringer, since the claim arises immediately as soon as patent infringement takes place.

The CPC requires the plaintiff to declare that:

  • the parties have attempted mediation or have used other means of alternative dispute resolution; or
  • no such attempt has been made, providing the reasons for not doing so (Article 187(1)(2) of the CPC).

However, failure to provide this information will not prevent the case from proceeding.

Polish law does not provide for specific measures in the event of unlawful threats of patent infringement. However, if an entity publishes unfounded information about illegal activities (including infringement) that have not yet been established by a court, it may be liable for damages to the injured party under Polish unfair competition law.

5.4 What are the procedural and substantive requirements for bringing a claim for patent infringement? How much detail must be presented in the complaint?

Polish law prescribes no procedural steps that the patent holder must take before it can bring a claim. However, whatever the outcome of the dispute may be, the court may impose the costs of the proceedings on the plaintiff if the latter failed to request the defendant to settle the dispute amicably in accordance with the special procedural rules in commercial matters.

Patent infringement claims are subject to the statutory limitation periods. Since 1 July 2023, there has been a separate statutory limitation period of no more than six months from the time the patent holder became aware of the alleged infringement to apply for an injunction order.

With regard to the substantive requirements to establish infringement, the plaintiff must cumulatively prove the following:

  • It is the patent holder and its title is confirmed in the relevant official document (ie, a certificate issued by the PPO);
  • The infringer has been using the invention in violation of Article 66(1) of the ILP; and
  • The infringer's product falls within the scope of protection of the patent specification.

A plaintiff must a substantiated statement of claim, including evidence that supports:

  • the asserted claims;
  • the arguments; and
  • the relevant facts and circumstances.

In order to seek compensation for damages, the plaintiff must also demonstrate:

  • the damage suffered and its amount;
  • an adequate causal link between the infringement and the damage; and
  • the guilt of the infringer.

5.5 Are interim remedies available in patent litigation in your jurisdiction? If so, how are they obtained and what form do they take?

An interim injunction may be granted to secure a claim that the plaintiff has demonstrated to be plausible (prima facie) where the grant of interim injunction is necessary:

  • to secure the future enforcement of the ruling in the case; or
  • to ensure that the purpose of the proceedings is achieved.

Generally, injunctions are granted at the request of the interested party in inter partes proceedings (since 1 July 2023).

The conditions that must be met in order to have an interim injunction granted include:

  • evidence of a strong likelihood that the patent has been infringed;
  • substantiation of the claims raised as a result of the alleged infringement;
  • the existence of a legal interest in seeking the injunction (eg, a risk that continuation of the infringement will have an irreversible effect on the plaintiff's assets, that the evidence will be destroyed or that a delay in the obtaining evidence will hinder the plaintiff's case); and
  • the urgent nature of the case.

Two types of interim injunctions are available:

  • an injunction regulating the mutual relations between the parties for the duration of the proceedings; and
  • an injunction allowing the party to obtain information necessary to enforce the claims.

The patent holder can seek:

  • the cessation of the allegedly infringing activity (eg, manufacture, offer, sale) for the duration of the substantive action; and
  • the seizure of the allegedly infringing goods.

Motions for preliminary injunctions may be submitted before or during the proceedings. If a preliminary injunction is granted before the opening of proceedings, the court will set a timeframe of between two weeks and one month within which the pleading to initiate proceedings must be submitted.

5.6 Under what circumstances must security for costs and/or damages incurred by the other party be provided?

No security deposit is needed in order to obtain an interim injunction. However, the court may decide otherwise, either on its own initiative or at the request of the alleged infringer. This is usually the case where:

  • the injunction is likely to cause significant harm to the alleged infringer; and
  • the patent holder is unlikely to be financially able to remedy that harm in a potential damages action.

Security for costs may also be ordered in proceedings involving foreign parties. A plaintiff which is not domiciled or habitually resident in Poland or another EU member state must provide security for the costs of the proceedings at the defendant's request.

6 Disclosure and privilege

6.1 What rules on disclosure apply in your jurisdiction? Do any exceptions apply?

There are three types of discovery procedure available in patent enforcement proceedings:

  • Evidence preservation: This may be required from the defendant or any third party that could enable the preservation of evidence. The aim is to physically preserve certain materials that may be used as evidence in patent proceedings. The claimant is not required to specify the facts to be proved, as the purpose of the measure is to gather facts about the extent of the infringement. The court's decision to grant this measure may be modified or revoked if the reason for granting it changes or ceases to exist.
  • Disclosure or delivery of the means of evidence: The aim is to obtain the means of evidence at the defendant's disposal, including in particular banking, financial or commercial documents. Unlike a request to secure means of evidence, when requesting disclosure or delivery of evidence, the claimant must be very specific in:
    • describing what is actually being sought; and
    • proving that it is in the defendant's possession.
  • Request for information: This is the most specific of the three measures, as the scope of the information that may be requested is limited to information on the origin and the distribution networks of the goods or services, if this must be obtained in order to enforce the claim. The request for information may be exercised against the defendant or any third party that holds or has access to this information.

6.2 What rules on third-party disclosure apply in your jurisdiction? Do any exceptions apply?

The information needed to apply for a preliminary injunction concerning the origin and distribution networks of infringing goods or services where a significant likelihood of infringement has been established may be provided by a party other than the infringer.

A closed-end list of entities against which action can be brought is set out in Article 479-114. It includes parties that:

  • possess, in a quantity that demonstrates the effective exercise of a business activity, goods whose design, manufacture or marketing, or aesthetic or functional characteristics infringe the patent;
  • supply services, in a quantity that demonstrates the actual exercise of a business activity, to the infringer;
  • provide services infringing the patent to such an extent as reflects the actual conduct of business activity; or
  • have been identified by any of the foregoing as:
    • the manufacturer of the goods;
    • a participant in the marketing of the goods; or
    • the recipient or provider of the services.

6.3 What rules on privilege apply in your jurisdiction? Do any exceptions apply?

The rules on disclosure discussed in questions 6.1 and 6.2 apply without prejudice to:

the party's right to refuse information; and

the protection of trade secrets.

In applying these measures, the Patent Court will take into account the interests of the parties so as to ensure that:

  • the patent holder receives adequate legal protection; and
  • the burden on the obliged third party or the alleged infringer is not incommensurable, also taking into account the protection of trade secrets.

If the alleged infringer or the obligated third party pleads protection of trade secrets, the court may:

  • lay down special rules on the use and inspection of evidence; and
  • impose additional restrictions.

7 Evidence

7.1 What procedure(s) exist for collecting and presenting evidence in patent infringement litigation?

Polish civil procedure rests on the rule of concentration of evidence, which means that all evidence and requests of the claim should be presented at the outset of the litigation.

If a pre-trial hearing has been scheduled, the parties must present all requests and evidence at that hearing at the latest. If no pre-trial hearing is scheduled, they may present them up until the end of the hearing within the main proceedings (see also question 11.2).

In practice, however, the majority of patent disputes are between entrepreneurs and special rules governing commercial proceedings thus apply.

According to Article 458-5 of the Code of Civil Procedure (CPC), the statement of claim and the statement of defence should contain all evidence and arguments. No evidence or argument submitted later will be taken into account unless the relevant party proves that:

  • it could not submit the evidence or raise the arguments at that time; or
  • it only discovered at a later date that it was necessary to submit the evidence or raise the arguments.

The evidence and arguments must be submitted within two weeks of:

  • the date on which it became possible to submit them; or
  • the date on which the need to submit them arose.

From a formal point of view, the request for evidence must meet the requirements indicated in Article 235-1 of the CPC – that is:

  • the evidence must be specified so as to allow the taking of evidence; and
  • the facts to be proved should be specified.

The court may disregard evidence, among other things, if it:

  • prevents the taking of evidence;
  • is not useful for the clarification of the case; or
  • concerns undisputed issues.

A patent holder may also lodge the following requests in order to obtain evidence:

  • preservation of the evidence;
  • disclosure or issuance of the evidence; and
  • a request for information.

7.2 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?

The following types of evidence are allowed:

  • documents;
  • testimony;
  • expert opinions;
  • inspections; and
  • questioning of the parties.

In addition, the court may admit other evidence to confirm facts relevant to the decision if it is appropriate to that end. The catalogue of evidence to which the parties may refer is not exhaustive.

Experts are appointed to give their opinions on matters which require special knowledge (ie, technical or financial issues). The court will assess whether the requirement to possess special knowledge has been met in the light of the circumstances of each case. As a general rule, however, a failure to appoint an expert where issues requiring special knowledge must be clarified may be regarded as a breach of the rules of procedure. There is a presumption of irreplaceability of expert evidence – that is, when special knowledge is required in a case, it cannot be replaced by other evidence, such as witness evidence. If an expert opinion is prepared on the request of the court, it has the status of expert evidence. Expert evidence must be presented either in writing or orally at the hearing.

So-called 'private expert' evidence, which is sometimes used in practice, is treated as part of the statements of the party and therefore is not binding on the court. Private experts:

  • do not enjoy special advisory status; and
  • in most cases, are not requested to provide an explanation in court.

7.3 What are the applicable standards of proof?

The relevance of facts as an object of proof should be assessed against:

  • the facts invoked in the statement of claim, on which the plaintiff bases its claim; and
  • their legal significance.

Relevant facts are those that produce legal effects, which can be a source of rights and obligations; therefore, only facts that are important from the point of view of the substantive law that fall within the hypothesis of a legal norm that can be applied in the case are relevant to the outcome of the lawsuit.

The court will assess the plausibility and strength of the evidence at its own discretion, based on an overall consideration of the material collected. This standard is called the 'principle of free evaluation of evidence'. A violation of this principle occurs where it is demonstrated that the basic rules of assessment of the plausibility and/or strength of individual pieces of evidence have not been observed. These rules include:

  • the rules of logical thinking;
  • the principles of life experience; and
  • the correct correlation of fact.

The concept of free assessment of evidence is often confused with the concept of an 'arbitrary' assessment of evidence, which generally constitutes a breach of the procedural rules.

7.4 On whom does the burden of proof rest?

According to general rules, the burden of proof rests with the parties. However, the responsibility for proving facts that are material to the outcome of the case rests with the party that derives the legal consequences from those facts. For example, the scope of the claim (ie, patent infringement and/or the grounds for injunction or monetary relief) must be proved by the claimant; while the defendant must prove any circumstances that mitigate the claim (eg, a patent infringement defence or the statute of limitations).

8 Claim construction

8.1 Is there a procedure for construing claims during a patent infringement action? If so, when and how is it performed?

There are no specific rules on how claims in patent infringement cases must be structured. To this end, the general rule laid down in Article 63(2) of the Industrial Property Law (IPL) applies, according to which the scope of the subject matter of a patent is determined by the patent claims provided in the patent specification. The description of the invention and the drawings may be used to interpret the scope of the litigated patent (see question 8.2).

8.2 What is the legal standard used to define disputed claim terms?

The scope of the subject matter of the patent claims is generally determined by their literal wording. If the patent claims have been worded unambiguously so as not to allow for any ambiguities or interpretative gaps, a strict interpretation is applied.

In light of the case law, it has been established that Article 63(2) of the IPL allows for the interpretation of patent claims in light of the relevant description and/or drawings as auxiliary sources of information that may allow for a determination of the scope of protection sought, with the proviso that such an interpretation is allowed insofar as it will not lead to an extension of patent protection contrary to the strictly literal wording of the patent claim (eg, see Judgment II GSK 1865/18 of the Supreme Administrative Court).

8.3 What evidence does the court consider in defining the claim terms?

Patent claims serve as the basis for determining the scope of the subject matter of the relevant patent. Alternatively, the evidence may include the description of the invention and/or the relevant drawings that form part of the patent document confirming that the patent was granted (Article 54 of the IPL). Patent documents that may be used as evidence must be official documents, as these enjoy a presumption of authenticity and accuracy (ie, that they come in their entirety from the authority that issued such documents and constitute evidence of the matters that have been officially certified therein).

If the interpretation of the patent claims – and thus the determination of whether the patent has been infringed – requires special knowledge, the court may appoint an expert. According to Article 278 of the Code of Civil Procedure, in cases requiring special knowledge, the court may, after hearing the parties' requests regarding the number and selection of experts, appoint one or more experts to be heard.

Under Polish law, the doctrine of equivalents is not explicitly invoked with a view to defining the scope of patent protection.

8.4 Can the claims of a patent be amended in the course of the proceedings?

In patent litigation proceedings, post-filing amendments are allowed, provided that they have no effect on the court's jurisdiction.

In disputes between business entities, the option to make amendments is limited; no new claims in place of, or in addition to, existing claims may be introduced in the course of the proceedings. However, if the circumstances change, the plaintiff may invoke an equivalent of the original subject matter of the proceedings or other subject matter to replace the latter. In case of recurrent performance, the plaintiff may also extend the claim to include claims for further periods.

The question of whether these restrictions should apply to IP matters (including patent litigation) is controversial, as they appear to be inconsistent with the concept and the character of the right to information (see questions 6.1 and following). After the relevant data concerning the scope of the infringement has been obtained from the infringer, it is usually necessary to amend the asserted claim accordingly.

9 Defences and counterclaims

9.1 What defences are typically available in patent litigation?

Possible defence strategies may include:

  • exhaustion of the patent rights;
  • the claim being time barred;
  • prior user's rights;
  • use of the subject matter of the patent for private non-commercial purposes; and
  • a plea of invalidity or declaration of non-infringement.

Patent exhaustion occurs where a product was put on the market in Poland for the first time by the patent holder or with its consent, or in the market of the European Economic Area (EEA).

For a detailed explanation of the statute of limitations regarding patent claims, see question 5.2. Under Polish law, the statute of limitations does not mean that a right objectively expires; it only entitles a party to plead that the claim is time barred before the court. A successful plea will result in dismissal of the claim.

Anyone that has exploited a patented invention in good faith in Poland on the date invoked to establish the priority for the purpose of patent grant may continue to exploit the invention in its business free of charge to the extent that it has been exploiting the invention. This right – referred to as the right of the prior user – is also vested in anyone that had taken significant preparations to exploit the invention at the same date.

The patent monopoly covers only the use of an invention for profit or for professional purposes, which means the use of patented goods or services for economic gain. Using the invention merely for personal purposes does not constitute patent infringement.

Other defences may include:

  • challenges to the actual allegations of infringement;
  • the expiration of patent protection; and
  • the absence of infringement of the patented features.

Proceedings for patent invalidity and the non-infringement declaration are more broadly discussed in question 3.4.

9.2 Can the defendant counterclaim for revocation or invalidation of the patent? If so, on what grounds and what is the process for doing so?

Invalidity or revocation proceedings are conducted before the Polish Patent Office and essentially constitute an administrative procedure. Consequently, the provisions of the Code of Civil Procedure (CPC) on the lodging of a counterclaim (Article 204 of the CPC) do not apply.

9.3 Are there any grounds on which an otherwise valid patent may be deemed unenforceable against a defendant?

Article 69(1) provides an exhaustive list of circumstances which, although covered in the patent monopoly, do not constitute patent infringement (so-called patent infringement exemptions), as follows:

  • using an invention concerning means of communication and their parts or devices which is temporarily located in the territory of Poland, as well as objects which are transiting through the Polish territory;
  • using the invention for the purposes of the state to the necessary extent, without the right of exclusivity, where this is necessary to prevent or eliminate a threat to the important interests of the state – in particular, with regard to public security and order;
  • using the invention for research or experimental purposes, for the purpose of evaluation, analysis or teaching;
  • manufacturing, using, storing, offering, marketing, exporting or importing an invention in order to perform activities which, under the provisions of the law, are required in order to obtain (also by a third party) a registration or permit, constituting a condition for allowing the marketing of certain products in view of their intended use – in particular, medicinal products in the territory of the EEA or another country;
  • manufacturing a medicine in a pharmacy on the basis of an individual medical prescription; and
  • using biological material for the purpose of breeding or discovery and derivation of new plant varieties.

10 Settlement

10.1 Are mediation and/or other forms of settlement discussions required by the court in your jurisdiction or merely optional to the parties?

Mediation and arbitration are not feasible alternatives to patent litigation because patent enforcement cases are rarely heard in these forums. During the proceedings, however, a pre-trial court session is held whereby the chair urges the parties to reconcile and seek an amicable resolution of the dispute. Settlement can be reached at any point during the course of the infringement proceedings. A settlement achieved in court is:

  • recorded in the minutes of the hearing; or
  • included in a separate document that is included in the minutes and signed by the parties.

The proceedings are terminated when a settlement is reached.

The parties may also submit the case to mediation before the commencement of the proceedings. In that case, the mediation takes place out of court. If the parties agree to refer the case to mediation during the proceedings, the court will refer the case to mediation by order. A settlement agreement reached before a mediator may be submitted to the court for approval. Once approved by the court, the settlement agreement has the same legal force as a settlement in court.

The Code of Civil Procedure also recognises a specific form of pre-litigation conciliation procedure which is pending before the court. This procedure is optional in patent cases; it may conclude with a settlement.

Since 1 June 2017, all invalidation cases can be resolved through mediation. However, as there is still no implementing legislation secondary to the modified Code of Administrative Proceedings, no mediation cases have been launched thus far.

10.2 Can the proceedings be stayed or discontinued in view of settlement discussions?

Proceedings may be stayed for the sake of mediation or other settlement discussions at the joint request of the parties. If a settlement is reached during the trial, the case is discontinued, since there is no point in issuing a judgment.

10.3 Is it necessary to report the results of settlement discussions to the court? If so, how; and what are the implications?

The court need not be notified of the conclusion of a settlement, since under Polish law a settlement is primarily a private contract. At the same time, a settlement reached through conciliation, negotiation or mediation, if approved by the court, has the same effect as a judgment. As regards the subject matter of the settlement, the parties have the right to invoke the settled matter, which prevents future litigation.

11 Court proceedings for infringement and validity

11.1 Are court proceedings in your jurisdiction public or private? If public, are any options available to the parties to keep the proceedings or related information confidential?

Hearings in a court of law are open to the public and anyone may attend, with the exception of minors. A public hearing may be held in camera:

  • upon an ex officio decision of the court; or
  • at the request of a party.

An in camera hearing will be ordered if:

  • the public hearing of a case threatens public order or morality; or
  • circumstances covered by the protection of classified information (state secrets) may be disclosed.

An in camera hearing may be attended by:

  • the parties;
  • interveners;
  • the parties' legal representatives;
  • the public prosecutor; and
  • two persons of confidence from each side.

The party has the right to request, among other things, that the hearing be held in private if the protection of business secrets so requires.

The Code of Civil Procedure specifies that court sessions are closed to the public; only those summoned by the court may attend. Closed sessions are typically used to address procedural or technical issues. Exceptionally, the court or tribunal may decide the case in camera if:

  • the defendant has admitted the claim; or
  • after the parties have lodged their pleadings and documents – including any statement of defence or objection to an order for payment or default judgment – the court or tribunal believes that a public hearing is unnecessary in light of all submissions and requests for evidence.

The mediation process is confidential and the mediator and the mediating parties are bound to observe confidentiality with respect to the facts disclosed during the mediation process.

11.2 Procedurally, what are the main steps in patent infringement proceedings in your jurisdiction? Is patent validity handled in the same proceedings as infringement or is it handled separately? If separate validity proceedings are available, what are the main steps in those proceedings?

Patent infringement is dealt with by the court in civil proceedings. The general structure of the procedure, without taking into account modifications that may result from the actions or omissions of the parties, is as follows:

  • the filing of a statement of claim and service of its copy on the other party;
  • the filing of a statement of defence;
  • the pre-trial phase – in particular, the pre-trial session (see question 10.1);
  • the preparation of a schedule of the case, including the scheduling of court sessions and other proceedings in the case;
  • court hearing, including the evidence proceedings; and
  • delivery and announcement of the judgment.

An appeal against a judgment of the court of first instance may be lodged with the court which delivered the contested judgment within two weeks of delivery of the judgment, with a statement of reasons to the appellant. The appeal will be heard by a court of higher instance.

Patent cases involving both the validity and infringement of patent are not tried in the same proceedings. Despite the administrative nature of litigation before the Polish Patent Office (PPO), contentious proceedings are similar to civil proceedings in terms of their structure. They are initiated upon the submission of a written petition, to which the opposing party should file a reply. A hearing is then held, after which the PPO issues a decision. A decision of the PPO in litigation proceedings may be appealed to the Voivodship Administrative Court.

11.3 What is the typical timeframe for patent infringement proceedings? If separate patent validity proceedings are available, with is the typical timeframe for those proceedings?

There are no official documents that specify tentative timeframes for the IP courts in Poland. Generally, the standard timeframes applicable to all commercial disputes will also apply here. The timeframes for the delivery of judgments vary depending on the complexity of the matter. The timeframe will be shorter if the validity of the patent is not contested. The initiation of patent invalidity proceedings will most likely result in a stay of the patent infringement proceedings for the duration of the proceedings before the PPO.

For the average time of an appeal, see question 13.2.

11.4 To what extent do the decisions of national or foreign courts or bodies influence the court's decision?

Patent opposition and invalidation proceedings before the PPO are relevant to the outcome of a patent infringement case which is pending before an IP court. In view of the principle of territoriality of patent rights, the results of foreign proceedings may be taken into account by the Polish courts, but they will not be legally binding and may have persuasive value only.

It is common practice to cite decisions of courts and authorities in:

  • the statements of reasons to the letters, pleadings and statements; and
  • the grounds of court judgments.

Given the authority of the Supreme Court, there is a high probability that lower courts will not rule differently in cases which are similar to those resolved by the Supreme Court. There are no precedents in Polish law; such rulings are not binding but serve to strengthen the credibility of the arguments, which will be assessed by the court based on a comprehensive consideration.

The Supreme Court may issue resolutions on legal questions that give rise to doubts or discrepancies in case law. If a resolution is issued in connection with the referral of a question to the Supreme Court by the court hearing the case, the court will be bound by the resolution, but only in that specific case. If the resolution of a legal question is given the force of a legal principle, it will be binding on the Supreme Court's judging panels in such a way that deviation from the interpretation adopted therein will require a new resolution.

Due to Poland's membership of the European Union, judgments of the Court of Justice of the European Union (CJEU) are sources of EU law. In principle, therefore, national courts must apply EU law in the sense given to it by the CJEU (the acte éclairé principle).

12 Remedies

12.1 What remedies for infringement are available to a patent holder in your jurisdiction?

The court may prohibit infringing acts, such as professional or commercial use of a patented invention. This includes:

  • manufacturing a patented product using the product or process covered by the invention;
  • marketing or importing a product covered by the invention; and
  • offering, marketing or importing products directly derived from the patented process.

The patent holder may also seek monetary remedies in the form of:

  • surrender of the profits;
  • compensation for damages, in the case of wilful patent infringement (Civil Code); or
  • payment of a sum corresponding to a licence fee or other suitable remuneration that would have been payable for the patent holder's consent to use of the invention.

The patent holder may choose between the above options but must provide evidence of the amount claimed in each case.

The patent holder may also request that part or all of the judgment or information about the judgment be made public, in particular through publication in the press or on the defendant's website.

Upon the request of the patent holder, the court may order that illegally manufactured products which are in the possession of the infringer be:

  • withdrawn from the market (request to recall);
  • awarded to the patent holder as compensation; or
  • destroyed.

In reaching its decision, the court will take into account:

  • the gravity of the infringement; and
  • the interests of third parties.

12.2 Are punitive or enhanced damages available in your jurisdiction? If so, how are they determined?

Polish tort law rests on the principle of full compensation. As a rule, the amount paid in connection with the infringement must correspond to the damage actually suffered, including both actual losses and lost profits. If the patent holder opts for compensation in accordance with the general rules, it should receive an amount corresponding to the demonstrated damage.

It is widely held that the concept of punitive or enhanced damages is inconsistent with the principle of full compensation and its fundamental compensatory function. Although the Industrial Property Law (IPL) contains no provisions that entitle the patent holder to seek enhanced damages, the Constitutional Court, in ruling on the provisions of the Copyright and Related Rights Act, held that triple damages are unconstitutional (Judgment SK 32/14 of 23 June 2015). Provisions of foreign laws governing punitive damages are generally considered to be unenforceable due to their incompatibility with the full compensation principle.

Article 287 of the IPL allows the patent holder to obtain lump-sum damages. In such case, it is not necessary to prove the damage and/or the causal link between the patent infringement and the damage. The lump-sum damages correspond to the amount of the hypothetical royalty or other relevant remuneration that would have been due at the time of their assertion if the patent holder had granted permission to use the invention.

12.3 What factors will the courts consider when deciding on the quantum of damages?

The patent holder need only substantiate the amount of damages if it decides to claim damages in accordance with the general rules. The compensation covers both losses and lost profits in their actual amounts.

All kinds of evidence that are accepted in civil proceedings may also be accepted to substantiate actual loss, lost profits or royalties, including in particular:

  • documents such as contracts and invoices;
  • document-like materials, such as:
    • press articles;
    • books;
    • publications; and
    • pricelists;
  • expert opinions from experts with special knowledge of a particular market or general economic knowledge, or expert accounting evidence on past licensing practices; and
  • witness testimony.

In IP cases, specific measures are available with a view to securing evidence and information necessary to effectively calculate damages (see questions 6.1. and 6.2).

13 Appeals

13.1 Can the decision of a first instance court or body be appealed? If so, on what grounds and what is the process for doing so? Please also describe the availability and process for additional levels of appeal.

Once a party has received a copy of the decision or judgment with the statement of reasons in writing, it may lodge an appeal within 14 days. The appeal is filed with the court of first instance which delivered the judgment. Patent cases may be appealed to the Warsaw Court of Appeal as the court of the second instance.

Under Polish law, the model of a full appeal has been adopted. As a rule, it is therefore possible to invoke new facts and evidence, unless they could already have been invoked in the first-instance proceedings. The appeal must specify:

  • the ruling being appealed (and whether it is being appealed in whole or in part);
  • a statement of the pleas in law and their basis; and
  • a request to modify or set aside the judgment.

A cassation appeal is a special remedy which is filed through the court of second instance with the Supreme Court. The grounds for a cassation appeal include a violation of the substantive or the procedural laws, if this has affected the outcome of the case. A cassation appeal is examined from the angle of the public interest; the Supreme Court will accept an appeal for examination if there is a significant legal issue in the case, especially one that has resulted in discrepancies in the case law.

As regards proceedings before the Polish Patent Office (PPO), a party may file a complaint against a decision of the PPO with the Voivodship Administrative Court. The complaint triggers court administrative proceedings, which are also held at two instances. The competent court of second instance is the Supreme Administrative Court.

13.2 What is the average time for each level of appeal in your jurisdiction?

According to the most recent available data, in 2022, the average waiting time to commence appeal proceedings before the Warsaw Court of Appeal (the court with competence to hear appeals in patent litigation) was 7.37 months. However, the timeframe for delivery of a ruling in appeal proceedings will depend on:

  • the complexity of the case; and
  • the court's workload.

According to figures provided by DARTS-IP/CLARIVATE, the average time from filing of a statement of claim with the court of first instance to a final and valid decision in patent infringement proceedings was:

  • 30.2 month in 2015; and
  • 54.3 months in 2017.

This was before the establishment of the IP courts on 1 July 2020; and the statistics are based on the example of five court cases.

14 Costs, fees and funding

14.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?

Litigation costs are the costs incurred in connection with the proceedings. They include:

  • legal costs (eg, pleading fees, costs of mediation following a court referral); and
  • attorneys' fees or the costs incurred by a participant in the proceedings that chose not to retain an attorney.

The losing party must reimburse the winning party, at the latter's request, of the costs necessary to assert and defend its rights. If the winning party is represented by an attorney-at-law, the necessary costs include:

  • attorneys' fees, based on the rates specified in separate provisions, and the expenses of a single attorney-at-law;
  • legal costs, including the remuneration of expert witnesses or sworn translators appointed in the case; and
  • the costs of the party's personal appearance in court.

Late payment interest will be due on the amount awarded for reimbursement of the legal costs at the statutory rate, calculated from the date on which the relevant judgment became final and valid until the date of payment.

When deciding on the amount of legal costs to be reimbursed, the court will take into account the complexity of the case. In practice, the amount that is ultimately awarded depends largely on the discretion of the court. The actual attorneys' fees often far outweigh the fees and expenses reimbursed by the losing party.

14.2 Are contingency fee and/or other alternative fee arrangements permitted in your jurisdiction?

Contingency fee agreements are not permitted, since they are incompatible with:

  • Section 50(3) of the Code of Ethics for Advocates; and
  • Article 36(3) of the Code of Ethics for Attorneys-at-Law.

However, it is permitted to conclude an agreement for an additional success fee which may in particular take the form of a percentage rate.

14.3 Is third-party litigation funding permitted in your jurisdiction?

Yes, third-party litigation funding is lawful in Poland. Due to its contractual nature, the solution enjoys the privilege of freedom of contract. However:

  • there is no specific legal framework providing for this mechanism; and
  • there is no case law resolving significant legal issues in this regard.

15 Trends and predictions

15.1 How would you describe the current patent litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The most recent reform of the Code of Civil Procedure (CPC) came into force on 1 July 2023. The amendment introduced new rules for injunction proceedings in IP cases. The court will now take into account the chance of a patent being declared invalid in proceedings before the Polish Patent Office when assessing the plausibility of the claim, which is a prerequisite for granting an injunction. The court will assess this by interrogating the parties, unless it is already aware of this through official channels (Article 730-1(1-1) of the CPC).

Another important change is that, as a rule, a preliminary injunction for non-monetary claims in IP cases will, as a rule, be granted with the participation of the parties. This change has raised doubts among commentators, since the conduct of ex parte proceedings has apparently allowed for the development of litigation strategies based on the element of surprise.

Discussions are also ongoing on the potential introduction of the instrument of the protective letter to the CPC. The practice of the courts in dealing with protective letters is inconsistent and a potential legislative reform could mitigate the effects of these inconsistencies.

Under the existing legislation, courts may:

  • disregard protective letters that have been filed prior to the commencement of the proceedings;
  • examine the contents of a protective letter without including it in the file; or
  • include the protective letter in the file and disclose it to the opposing party.

Practice shows that the Warsaw Patent Court will not disclose the contents of a protective letter to the opposing party.

16 Tips and traps

16.1 What would be your recommendations to parties facing patent litigation in your jurisdiction and what potential pitfalls would you highlight?

The application of the doctrine of equivalents by the Polish courts is still controversial. At the same time, the Industrial Property Law does not regulate claims that a patent holder may assert in respect of indirect infringement – which, in the situation of aiding and abetting, merely include the claims for damages. In addition, due to the rigorous rules of civil procedure that apply in Poland, defendants seeking to postpone a case cannot avail of any options that might achieve this end. The parties to a case must perform their obligations within the timeframe set by the court, as failure to do so will be to the detriment of the non-performing party.

Furthermore, the Patent Court in Warsaw has a reputation for being pro-patent holder. The courts' approach to patent cases varies depending on:

  • the type of patent involved; and
  • the category of invention it protects.

Patents relating to new uses of existing inventions appear to be more difficult to defend.

Finally, the entry into force of the unitary patent and the Unified Patent Court system will redefine the patent litigation landscape in Europe. Although Poland is not part of this new system, the new rules may also have impact on Polish entities.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.