Archive for: September, 2006

Polish patent attorneys, case SK 43/04

September 15th, 2006, Tomasz Rychlicki

Tadeusz Rejman, a Polish patent attorney, was representing his client before the public prosecutor’s office in case of a trade mark infringement. The public prosecutor’s office discontinued the investigations and decided that Tadeusz Rejman is not entitled to represent a person during criminal proceedings. An advocate representing Tadeusz Rejman filed a complaint to the Constitutional Tribunal challenging the constitutionality of the provisions of Article 88 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 89, item 555, with subsequent amendments. According to Mr Rejman, the challenged provisions infringed on Article 2 and Article 65 of the Polish Consitution.

Article 2.
The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.

Article 65
1. Everyone shall have the freedom to choose and to pursue his occupation and to choose his place of work. Exceptions shall be specified by statute.

2. An obligation to work may be imposed only by statute.

3. The permanent employment of children under 16 years of age shall be prohibited. The types and nature of admissible employment shall be specified by statute.

4. A minimum level of remuneration for work, or the manner of setting its levels shall be specified by statute.

5. Public authorities shall pursue policies aiming at full, productive employment by implementing programmes to combat unemployment, including the organization of and support for occupational advice and training, as well as public works and economic intervention.

The unconstitutionality of Article 88 of the CRPC was based on the fact that patent attorneys do not have the legitimacy to act in criminal proceedings as a representative of a party, which in consequence violates the rule of a democratic state and that the exclusion of patent attorneys from cases relating to industrial property protection in criminal proceedings, is restricting their right to act on behalf of their clients in cases where they have the knowledge and preparation on a much higher level than other practitioners. This exclusion is also a violation of their constitutional right to free practice.

The Constitutional Tribunal in its judgment of 27 July 2006 case file SK 43/04, published in Orzecznictwo Trybunału Konstytucyjnego Seria A, 2006, No. 7, item 89, ruled that representation of the sufferer in criminal investigations proceedings conducted by the prosecuting authority does not fall within the scope of the patent attorney profession. These steps can be entrusted only to an advocate or a legal advisor where appropriate.

Access to public information, case OSK 600/04

September 12th, 2006, Tomasz Rychlicki

The Internet Society Poland requested the President of the Social Insurance Institution – ZUS – (in Polish: Zakład Ubezpieczeń Społecznych) to disclose public information concerning technical specification of the KSI MAIL format, that is used in Płatnik software. Płatnik computer program is a free but not open source software that can be used to fill in and send a statement of payment declarations to the Social Insurance Institution. It works only with MS Windows operating systems.

The President of ZUS ruled that the Polish Act of 13 October 1998 on the Social Insurance System, consolidated text published in Journal of Laws (Dziennik Ustaw) of 2007 No. 11, item 74 as amended, obliges payers of social insurance to prepare documents including inter alia protected data, for instance sensitive data concerning health, in the electronic format and to transmit of such documents from Płatnik to ZUS. These data are personal data protected by law. Making them available could result in significant disruption in the supply KSI MAIL system, exposing to a breach of professional secrecy of ZUS and undermine the statutory exclusivity of the software provided by ZUS. Regardless of the abovementioned arguments, ZUS stated that KSI MAIL module is subject to business confidentiality and trade secrets due to the greement conducted between ZUS and Prokom Software S.A. on the design and implementation of a comprehensive system for social security. The agreement obliged ZUS to keep confidential all information relating to the transferred technology and solutions contained in KSI MAIL. ZUS based its final decision on the provisions of Article 5 of the the Polish Act of 6 September 2001 on Access to Public Information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.

Article 5. 1. The right to public information is subject to limitation to the extent and on the principles defined in the provisions on the protection of confidential information and on the protection of other secrets being statutorily protected.
2. The right to public information is subject to limitation in relation to privacy of a natural person or the secret of an entrepreneur. The limitation does not relate to the information on persons performing public functions, being connected with performing these functions, including the conditions of entrusting and performing these functions and in the event when a natural person or entrepreneur resigns from the right to which he was entitled to.
3. The access to public information on matters resolved before the state authorities, in particular in the administrative, criminal or civil proceedings cannot be limited, with the stipulation of it. 1 and 2, with respect to protection of the party’s interest, if the proceedings concern the public authorities or other entities performing public functions or persons performing public functions – in the scope of these functions or tasks.
4. The limitations of access to information on cases, defined in it. 3, do not breach the right to information on organisation and work of the bodies conducting proceedings, in particular on time, mode and place and the order of investigating cases.

ISOC filed a complaint before the Voivodeship Administrative Court in Warsaw. It emphasized that the technical specification of KSI MAIL is public information. Its publication broadens the possibility of fulfilling the duties of citizens who do not wish to invest in MS Windows. ISOC further argued that ZUS can not rely on contractual provisions, as it was contrary to the mandatory provisions of the API and that they are invalid. Also, ZUS made an erroneous interpretation of the law to rely on business secrets and trade secrets, because ISOC did not request the source code of the program, or other works protected by copyright or industrial property rights/patents.

The Voivodeship Administrative Court in its order of 30 January 2004 case file II SA 3732/03 held that this request concerns matters that are not subject to the administrative jurisdiction, but the civil courts which is in accordance with the provisions of Article 22(1) of the API.

Article 22.
1. The entity, which was denied the access to the public information in respect to its exclusion of its openness when quoting the protection of personal data, the right to privacy and the secret other than state, official, treasury or statistical secret, is entitled to put an action to the court for making such information available.
2. The entity, to which the exclusion of public information is related, has a legal interest in commencing as an accidental intervener on the defendant’s side.
3. The competent court for resolving the cases, defined in it. 1, is the district court with respect to the seat of the entity, which refused to make the public information available.

The Supreme Administrative Court in its judgment of 3 March 2004 case file OSK 600/04 stated that the cassation complaint is unfounded and declared that, the term “when quoting” as used in Article 22(1) of the API, has such meaning that it is sufficient for the entity who posses requested information to invoke the mentioned in this provision object of protection, to exclude the possibility of control by an administrative court. The administrative court cannot control in this case the legality of the decision and investigate if the indicated condition actually occurred.