Polish patent attorneys, case K 30/01

December 11th, 2006, Tomasz Rychlicki

On 9 July 2001, the Polish Supreme Bar Council (in Polish: Naczelna Rada Adwokacka), requested the Constitutional Tribunal, to declare unconstitutional the provisions of article. 236(1) and (3) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No. 49, item 508, consolidated text on 13 June 2003, Journal of Laws (Dziennik Ustaw) No. 119, item 1117, with subsequent amendments.

Article 236
1. Except as provided for in paragraph (2), in proceedings before the Patent Office in matters relating to the filing and processing of applications and maintenance of the protection of inventions, utility models, industrial designs, trademarks, geographical indications and topographies of integrated circuits, only a patent agent may act as a representative of a party to a proceeding.
2. Subject to paragraph (3), a natural person may also be represented by a joint right holder or parents, brothers, sisters, descendants of the party or persons in the relation-by-adoption with the party.
3. In the matters referred to in paragraph (1), any persons not having their domicile or seat in Poland may only act when represented by a patent agent.

The SBC argued Polish advocates are not allowed to act before the PPO based on provisions of article 236(1) and (3) of the IPL, which in consequence violates the principles of equal treatment of all citizens provided in article 32 of the Polish Constitution.

1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.
2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.

The Constitutional Tribunal in its judgment of 21 May 2002 case file K 30/01 published OTK-A 2002/3/32, held that the challenged provisions are constitutional. The request was unfounded because one cannot demand for equal treatment of all citizens, from the perspective of the right to perform given professional activity, based on the principle of equality of citizens before the law. According to settled case law of the Constitutional Tribunal, the principle of equality requires equal treatment of persons that have the same legal and factual situation, and – simultaneously – allows differentiation of the legal status of persons belonging to different groups, provided of course that the separation of these groups is made based on criteria consistent with the constitutional values. In the opinion of the Tribunal, the diversity of legal professions, on the one hand, and patent attorneys, on the other hand, does not violate any constitutional principles. The division of professionals and labour is quite obvious for a developed society. Professional groups at issue in this case include the highly specialized professionals, and their operation is strictly regulated by the law, both when it comes to specialist education and professional background, type of activity and responsibility for the improper performance of duties. The Tribunal ascertained that even within the strictly legal profession there is a clear differentiation, which – certainly – did not justify the claim of infringement of the constitutional principle of equality, for example, by forming different status of advocates and notaries, or advocates and solicitors.