Patent office with evidence invalidating is consolidating debt a good idea

In Poland, patent infringement cases are tried before civil courts of general jurisdiction, whereas validity matters are heard by the Patent Office of the Republic of Poland ("Patent Office").The decisions of the Patent Office can be appealed to the Regional Administrative Court in Warsaw and, subsequently, to the Supreme Administrative Court.

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There are no specific patent law provisions relating to threats to sue for patent infringement in Poland.

Therefore, the general unfair competition law and/or civil code rules apply. It is customary to send a cease and desist letter before a trial so the opposite party has the opportunity to satisfy the demands of the patent holder before any court action commences.

On the other hand, the above would only apply to letters sent directly to an alleged infringer.

If the allegations have been made public and/or sent to third parties, the defendant could seek protection based on unfair competition law and/or civil code rules.

In particular, a potential defendant could raise claims against the spreading of false and harmful information causing damage to its reputation.

If concurrent proceedings are pending before the EPO, a Polish court has the discretion to stay the infringement proceedings, if the outcome of said EPO action could affect the infringement proceedings; especially if the opposition proceedings may lead to the invalidation of a European Patent.

Under Polish law, the scope of protection of a patent is determined by the claims.

Descriptions and drawings can be used to interpret the claims.

The requirement to consider descriptions and drawings is however still controversial both in case-law and legal articles.

Their use is seen as optional by some, especially if the wording of the claims lacks clarity.

It should also be noted that under Polish law and under the current practice of the Patent Office, once the patent has been granted the scope of the claims, cannot be limited by the patent holder.


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