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Archive for: Polish Chamber of Patent Attorneys

Access to public information, case I OSK 2026/11

May 23rd, 2012, Tomasz Rychlicki

On 5 February 2011, Bogusław Kler, a Polish patent and trade mark attorney, requested Anna Korbela, the President of the Polish Chamber of Patent Attorneys, to disclose information concerning, inter alia, copy of the audio recording of the National Convention of Patent Attorneys that was held in 2010. The President answered that this request should be decided by the National Council of Patent Attorneys. Bogusław Kler filed a complaint for failure to act (administrative inaction). Mr Kler argued that the President did not properly consider his request or did not issue a refusal decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 12 July 2011 case file II SAB/Wa 142/11 obliged the President of the Polish Chamber of Patent Attorneys to examine the application filed by Mr Kler. The Court found that the position of the President could not be accepted because it was is inconsistent. Once the President says she does not remain inactive, because the request was passed to do another, appropriate body, and then she finds that the requested information is not public information. Once the President announces that it hasn’t got the requested recordings, and then she states that Mr Kler may listen to them at the seat of the authority. The President filed a cassation complaint.

The Supreme Administrative Court in its judgment of 20 December 2011 case file I OSK 2026/11 dismissed it and ruled information about the activities of the proffesional self-government of the Polish patent attorneys is a public information which is indirectly interpreted from the provisions of Article 17 of the Constitution, under whose self-governments may be created within a profession in which the public repose confidence, and such self-governments should concern themselves with the proper practice of such professions in accordance with, and for the purpose of protecting, the public interest. This simply means that the activities of the government and its bodies fail within the meaning of a public character or matters, and such information concerning these activities – has the nature of public information.

Polish patent attorneys, case II GSK 833/10

January 20th, 2012, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 1 September 2011 case file II GSK 833/10 decided the cassation appeal that was filed by the National Council of Patent Attorneys in the case of the candidate for the patent attorney traineeship. The candiate did not agree with grades that she received during the entry exam. The SAC held that the cassation complaint was unjustified because of the lack of clarity in the rules of operation of the examination committee could cause significant differences in the assessments and grades that were issued by individual members of the committee. Grades that were issued for the same answer for the same question were so significantly different (4 and 10, 3 and 10) that it could indicate only that not all members of the committee acted in accordance with objective, reliable rules. The Supreme Administrative Court held that the Voivodeship Administrative Court in its judgment of 11 February 2010 case file VI SA/Wa 1713/09 correctly annulled the resolution of the National Council of Patent Attorneys, because the Council did not use clear criteria for assessing candidates for the patent attorney traineeship, thus giving rise to the recognition by the VAC that such resolution violated the requirements for reasons and justification of the administrative decision. The SAC held that the sufficient guarantee of proper operation of the committee would be, apart from the personal reliability of its members, formulation and disclosure of clear criteria for evaluation in all fields of the exam.

Polish patent attorneys – amendments to the law

January 26th, 2011, Tomasz Rychlicki

On 26 January 2011, the Act of 24 September 2010 amending the Polish Act on Patent Attorneys, published in Journal of Laws No. 197, item 1308, came into force. According to recent changes Polish patent attorneys may now represent clients in matters related to combating unfair competition. Patent attorney whose practice is based on the employment agreement takes an independent position in the entity that employs him/her and is directly subordinate to the head of an organizational unit, and if the organizational unit employs two or more patent attorneys, one of them is responsible for coordinating the work done by all employees.

A patent law firm may be organized as a stock company in which only inscribed shares are allowed. The Act introduced also the obligation of professional development for patent attorneys. Meanwhile it liberalized advertising rules.

EU nationals who meet the conditions prescribed by law are allowed to practice in Poland. A foreign citizen has to be able to speak Polish language to the extent necessary to practice on the Polish territory, in particular, to act as a representative in proceedings before the Polish Patent Office, as well as in judicial and administrative courts.

The Act also introduces the rules on cross border services. These services are deemed as temporary and occasional activities of assistance in matters of industrial property that are performed by citizens of EU Member States or third country nationals who hold a long-term residence permit of the European Communities, which are also authorized to perform these actions in the Member State.

The person who wants to star cross-border services for the first time on the Polish territory, is required to submit to the National Council of Patent Attorneys a written statement regarding these services together with the certificate of profession translated into Polish, any document being a proof of nationality, and a copy of liability insurance.

A person who performs cross-border services in the Republic of Poland by representing a client in proceedings before administrative bodies or courts, is required to indicate to the authority conducting the proceedings a person who will be authorized to receive official letters in the Republic of Poland. In case of no indication of such a person, a letter will be delivered to the party represented, if he or she is a resident of the Republic of Poland. In other cases, a letter will be left on file with the effect of service, the body should instruct about such actions at the first delivery.

The Act also made changes with regard to patent attorneys’ traineeship (the scope, costs, final exams) and disciplinary responsibility of patent attorneys. The rules on suspending the professional activity were also introduced. The suspension has to take place if the patent attorney is employed in the Polish Patent Office, the administrative court, the European Patent Office or the Office for Harmonization in the Internal Market, take the office of judge, become a notary, a bailiff, or the prosecutor, assessor or a notary public prosecutor, or being on traineeship for the mentioned above functions.

Categories: Polish Act on Patent Attorneys | Polish Chamber of Patent Attorneys | Polish patent attorneys.

Trade mark law, case VI SA/Wa 503/10

July 20th, 2010, Tomasz Rychlicki

In January 2010, Polish company LMW sp z o.o. represented by a patent attorney filed via the Polish Patent Office (PPO) a complaint to the Voivodeship Administrative Court in Warsaw, against the decision of the PPO on the refusal to grant a right of protection for LIBERTY MOTORS trade mark Z-315048.

Z-315048

In the Court’s order of 8 April 2010, a representative of LMW was asked to remedy the formal deficiencies of a complaint by submitting a power of attorney/proxy to act on behalf of the applicant before the voivodeship administrative court or before administrative courts and the document setting out the power to represent the applicant, i.e. the original or a certified copy of the full entry from the National Court Register, within 7 days from the date of service of summons under pain of dismissal of the action. This summons were served on 16 April 2010. The deficiencies were not removed.

The Voivodeship Administrative Court in Warsaw in its order of 31 May 2010 case file VI SA/Wa 503/10 rejected LMW’s complaint. The Court held that according to provisions of article 58 § 1 pt 3 of the Act on the Law on proceedings before administrative courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, Journal of Laws (Dziennik Ustaw) No 153, item 1270 with later amendments, the administrative court shall reject the complaint, if it was not compensated for the formal deficiencies, within the prescribed period of time.

Polish patent attorneys, case II GZ 224/09

June 28th, 2010, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 18 May 2010, case file II GZ 224/09 ruled that the Act on the Law on proceedings before administrative courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, Journal of Laws (Dziennik Ustaw) No 153, item 1270, with later amendments, did not afford a possibility of making a further appeal, or complaint from the judgments delivered by the Supreme Administrative Court. This means that the decision of the Supreme Administrative Court becomes final upon its publication. The administrative proceedings, as a general rule, is divided into two stages of jurisdiction. This principle is consistent with the articles 176(2) of the Polish Constitution.

Polish patent attorneys, case I CSK 481/09

June 25th, 2010, Tomasz Rychlicki

The Supreme Court in its judgment of 16 June 2010, case file I CSK 481/09 held, that a party to the proceedings may request from its legal representative to compensate for damages only if the representative did not act diligent and failed to meet the prevailing standard of competence in his or her work on client’s behalf. The court pointed out that the representative (advocate, patent attorney) is responsible for the due care, and not for the result of the case. The fact that a representative has been unsuccessful in conducting a case, even if the reasoning of a judgment indicates that this was the result of his or her mistake, it does not mean legal malpractice, and that the client can claim compensation for the loss suffered by the this injury.

The final ruling is binding not only for the parties and the court which issued it, but also to other courts and public bodies and authorities, and others in all cases provided for in the law. This is called “material validity of the judgment”, also known as “extended validity”.

Categories: case law | Polish Act on Patent Attorneys | Polish Chamber of Patent Attorneys | Polish patent attorneys | Polish Supreme Court.

Polish patent attorneys, case I OZ 356/10

May 30th, 2010, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 17 May 2010 case file I OZ 356/10, held that if legal representative refuses to prepare and file an appeal because he or she believes that such appeal would be unfounded, and informs the party, giving a proper opinion in this matter, this must be regarded as giving up the cassation complaint by a represented party, since a party has no standind in this area because the appeal must be made by a legal representative only under pain of dismissal of the action. The entitled representatives to file a cassation appeal are only these mentioned in the Law on proceedings before administrative courts, and so, in particular, advocates and legal advisors (radca prawny). In addition, the cassation complaint may also be made by the tax consultant – on tax obligations, and in matters of industrial property – by the patent attorney. The obligation to file a cassation by a professional results from two-instances of the administrative judiciary and to ensure more efficient proceedings. The obligation to file a cassation by a professional results from two-instances of the administrative judiciary and to ensure more efficient proceedings. This requirement was also introduced in order to ensure an adequate level of the form and content of a cassation complaint, and thus to provide a party the certainty that there will be no risk of rejection of its complaint. The knowledge of the regulations and enforcement procedures that are applicable to judicial proceedings can be expected and required from a professional representative. The refusal to prepare and to file a cassation complaint is not subject to review by the administrative courts. However, if in doubt, a party may apply to the competent authority of the professional autonomy requesting to review the merits of such action.

Categories: case law | Polish Chamber of Patent Attorneys | Polish patent attorneys | Polish Supreme Administrative Court.

Polish patent attorneys – substitution and delivery of documents

May 16th, 2010, Tomasz Rychlicki

According to the provisions of Articles 240 and 241 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 of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments, a representative shall be authorised to appoint a substitute (substitution).

Article 240
1. Except for the persons referred to in Article 236(2), a representative shall be authorised to appoint a substitute (substitution).
2. Authorisation by another joint right holder shall not be required for performing conservatory action.

Article 241
1. Where two or more persons are parties to a proceeding and no representative has been appointed, the persons concerned shall be required to indicate one address for service. Failing to indicate such address, the address of the person named first in the application or in another document, on the basis of which the proceeding is instituted, shall be deemed to be that address.

2. At a party’s request, the Patent Office shall also send letters addressed according to paragraph (1) to the addresses additionally indicated by that party. This provision shall also apply accordingly, where only one person who has appointed a representative is a party to the proceeding.

As the effect of establishing a substitute, the same relationship, which was established between a party and a patent attorney is also created between a party and a substitute, while maintaining the existing powers of attorney. This means that the party has two equivalent proxies since the establishment of an effective substitution. See for instance opinions presented by the Supreme Court Civil Chamber in a judgment of 13 February 2004, case file IV CK 269/02, the Supreme Court Civil Chamber in a decision of 7 November 2006, case file I CZ 78/06, or judgment of the Voivodeship Administraive Court in Poznańof dnia 20 February 2007, case file I SA/Po 1432/06.

On the basis of provisions of Article 40 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments, where a party has established a representative, all documents are delivered to the proxy and not a party.

Article 40.
§ 1. Documents shall be served on the party to proceedings, and if the party is acting by a representative – on that representative.
§ 2. If a party to proceedings has appointed an attorney then documents shall be served on the attorney.
§ 3. If a case has been commenced at the instigation of two or more parties the documents shall be served on all parties, unless the application indicates that one of them is authorised to receive service.

Due to the limitation established for granting the substitute power of attorney only to patent attorneys and provisions of article 237(1) of the IPL which provide that there can be only one proxy for one legal action, in case of existence of a substitute, all correspondence will be delivered to one person – the agent or a substitute.

Article 237
1. In the performance of one act a party may be represented by one natural person only.
2. A power of attorney shall be in writing and shall be included in the files on performance of first legal act.
3. Where the power of attorney covers two or more cases, it shall be included in the files of that of the cases, in respect of which the first act is performed by the representative. When acting in other cases covered by the power of attorneys, the representative shall be required to furnish a certified copy of the power of attorney.
4. A patent agent shall be allowed to certify himself a copy of the power of attorney granted to him.
5. Failing to pay a due stamp duty for the power of attorney, the Patent Office shall invite the representative to make relevant payment and in case it should not be made, it shall additionally invite the party to confirm, within the fixed time limit, the acts performed by the representative. Failing to observe the fixed time limit, the provision of Article 223(4) shall apply accordingly.

The decision in this regard will be taken following an assessment of attorney documents and attorney substitution. However, in the case of granting substitution of confluence with the scope of powers of attorney and without indicating an address for delivery of documents, the Polish Patent Office will continue to deliver documents only to a substitute.

Polish patent attorneys – authentication of documents

April 25th, 2010, Tomasz Rychlicki

According to the provisions of Articles 76a § 2, 3 and 4 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments, a party may file copy of a document if it complies with the original one and its originality have been authenticated by a patent attorney acting as a representative. According to the recently amended Act on the authentication of documents, such documents should include: the signature of a patent attorney, the date and the venue for its preparation, and also on a request: the time of the transaction. If the document contains special features (annotations, corrections or damages) patent attorney will acknowledge it in the authentication. The authentication of originality that was included in the copy of the document has the nature of the official document. In special circumstances, the Patent Office may request a party to submit original documents.

Patent Attorneys, case C-564/07

June 13th, 2009, Tomasz Rychlicki

Judgment of the Court (Third Chamber) of 11 June 2009, case C-564/07, Commission of the European Communities v. Republic of Austria.

1. Declares that, by obliging patent lawyers lawfully established in another Member State who wish temporarily to perform services in Austria to appoint an approved agent resident in Austria, the Republic of Austria has failed to fulfil its obligations under Article 49 EC.

Polish patent attorneys, case III CZP 118/08

January 29th, 2009, Tomasz Rychlicki

The Supreme Court in its judgment of 23 January 2009, case file III CZP 118/08, held that an advocate, legal advisor or patent attorney who is acting as a substitute representative cannot authenticate a copy of the basic power of attorney that was issued in the name of the primary proxy. The court also ruled that the defect in form of a pleading based on improper form of powers can be removed by a confirmation of a party that issued the primary POA. The court should assign the other party a reasonable time limit for supplementation of a pleading and POA.

Trade mark law, case VI SA/Wa 1388/07

January 15th, 2009, Tomasz Rychlicki

On 7 September 2000, MGT Parfum Création from Hofheim-Wallau in Germany applied to the Polish Patent office to register the EAU DE TOKYO trade mark for goods in class 3. On 11 May 2004, The PPO issued a positive decision on the registration of EAU DE TOKYO R-153843 trade mark.

R-153843

Kenzo Societe Anonyme from France filed a request for invalidation of the right of protection claiming it was granted in violation of articles 8(1) and 9(1)(i) of the old Polish Trade Mark Act – TMA – (in Polish: Ustawa o znakach towarowych) of 31 January 1985, Journal of Laws (Dziennik Ustaw) No 5, item 15, with later amendments.

Article 8
A trade mark shall not be registrable if:
(i) it is contrary to law or to the principles of social coexistence;

Article 9
(1) Registration of a trade mark for goods of the same kind shall not be permissible where:
i) it resembles a mark registered on behalf of another enterprise to such an extent that it could mislead purchasers as to the origin of the goods in ordinary economic activity;

The request had to be based on the old Act because the trade mark application was filed while the old act was in force. KENZO was claiming the similarity of marks, KENZO TOKYO BY KENZO R-207663 and TOKYO BY KENZO R-207662 and their reputation. The French company has also argued that the German company imposes its trade mark on similar bottles to Kenzo’s bottles. On February 2007, the PPO rejected the invalidation request and KENZO has appealed this decision.

R-153843-3D

The German company did not respond to the correspondence on this matter and no other address was known. During earlier hearings on July 2008, the Voivodeship Administrative Court in Warsaw had to ask the President Polish Chamber of Patent Attorneys to designate a curator for the German company. The curator did not agree with KENZO arguments. He pointed that the assessment had to be a comparison of the signs as they were registered, and not the packaging.

The Voivodeship Administrative Court in Warsaw in its judgment of 27 November 2008 case file VI SA/Wa 1388/07 rejected the appeal. The Court acknowledged the fact that the PPO did not negate the reputation of KENZO trade marks. According to the VAC, the PPO was not obliged to take into account KENZO’s reputation, since the Office found that the disputed signs were not similar. The Court did not agree with the argument that these signs had similar associations because cosmetics marked by them come from Japan. According to Judge Olga Żurawska-Matusiak such conclusion would be too far-reaching. She also pointed that the PPO has properly assessed both trade marks. The issue of passing off of packages should be decided by a civil court in a different proceedings.

Polish patent attorneys, case III CSK 337/07

October 29th, 2008, Tomasz Rychlicki

The Polish Supreme Court in a judgment of 16 October 2004, case file CK III 580/03, published in the Jurisprudence of the Supreme Court, the Civil Chamber (in Polish: Orzecznictwo Sądu Najwyższego Izba Cywilna) of 2005/9/164/109, recognized the scope of representation for matters relating to unfair competition quite narrowly with regard to Polish patent attorneys’ profession.

Fortunately, there is a judgment of the Polish Supreme Court of 13 March 2008, case file III CSK 337/07. The Court was very brief and set a clear rule in one important sentence.

Patent attorney may be a representative in each case relating to unfair competition.

This case was brought before the Supreme Court by Unilever Polska. The company sued Przedsiębiorstwo Produkcji Lodów “Koral” – Józef K. for unfair competition. The defendant ran an advertising lottery promoted under the slogan “million ice creams to win”, which in Unilever’s opinion breached the unfair competition law, because the advertising slogan could mislead customers as to the origin of goods in such a way that it might prompt them to unconsciously purchase the goods promoted by the opposite party. At about the same time Unilever was running a similar advertising campaign. The court of first instance rejected Unilever’s complaint. The Court of Appeal agreed with the court of lower instance and also rejected Unilever’s claim that the plaintiff cannot be represented by a patent attorney in unfair competition proceedings which do not directly concern IP rights.

The Supreme Court provided detailed analysis of Article 2 of the Law on Patent Attorneys. According to the Court, extensive interpretation should be applicable, which means that it would be difficult to rationally evaluate unfair competition cases, due to their diversity, so that one can tell where a patent attorney can and cannot act as an agent. According to the Court, conducting a case against unfair competition in connection with IP matters requires full knowledge about combating unfair competition proceedings. Therefore, it would be against the law to prevent patent attorneys from being involved in all unfair competition proceedings. The Supreme Court’s arguments were also based on the fact that the Paris Convention for the Protection of Industrial Property explicitly defines IP issues in the broadest possible sense. The definition of the protection of industrial property also covers combating unfair competition.

Polish patent attorneys, code of ethics

August 20th, 2008, Tomasz Rychlicki

The Rules of Ethics for Patent Attorney Profession, PDF file, in Polish language. This is the unifed text with changes that were passed during IV National Convention of Patent Attorneys of 7 September 2005.

§ 3
Patent attorney shall perform his/her professional duties according to his/her best will and knowledge with
appropriate precision and conscientiousnes, acting in proper moderation and dignity.

Please note that Polish patent attorneys may represent clients in all industrial property law matters (i.e. patents, trademarks, designs, etc.) and there are no specific professions such as trademark agents/attorneys in Poland.

Categories: Polish Act on Patent Attorneys | Polish Chamber of Patent Attorneys | Polish law | Polish patent attorneys.

Polish patent attorneys, case II GSK 195/05

February 26th, 2008, Tomasz Rychlicki

The Supreme Administrative Court in a judgment of 3 October 2005, case file II GSK 195/05, published in Orzecznictwo Naczelnego Sądu Administracyjnego i Wojewódzkich Sądów Administracyjnych 2006/2/65/199, ruled that according to Article 9(1) of the Polish Act on Patent Attorneys – APAT – (in Polish: ustawa o rzecznikach patentowych) of 11 April 2001, published in Journal of Laws (Dziennik Ustaw) No. 49, item 509, with subsequent amendments, a patent attorney should act as agent in proceedings before the Polish Patent Office, Polish courts and bodies deciding on industrial property matters. this article includes all forms of practice of the patent attorney (for the patent attorneys’ firm, for the employer and on the basis of civil contracts) and all matters of industrial property within the meaning of article 2 of the APAT, that are decided in each of the aforementioned proceedings.

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) of 30 June 2000, 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 later 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 a 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.

Polish patent attorneys, case SK 43/04

September 15th, 2006, Tomasz Rychlicki

Tadeusz Rejman, Polish patent attorney was representing a client before the public prosecutor’s office in case of trade mark infrignegement. The public prosecutor’s office discontinued the investigations and decided that Tadeusz Rejman is not entitled to represent a person during a criminal proceedings. An advocate representing Tadeusz Rejman filed a complaint to the Constitutional Tribunal challenging the constitutionality of article 88 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with later amendments. According 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 a 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 I be entrusted only to an advocate or a legal advisor where appropriate.

Polish patent attorneys, case III CZP 14/06

June 29th, 2006, Tomasz Rychlicki

The Supreme Court in its judgment of 30 March 2006, case file III CZP 14/06, held that a legal advisor who makes the first procedural step and is acting as a representative of legal person, should under the pain provided in the law, attach power of attorney and a document showing that a person, for instance a CEO, who empowered the adivisor had all required powers to issue such POA. The evidence of such powers can be a copy of an extract from appropriate register of commercial companies that was authenticated by a legal advisor himself.

Patent attorneys, case C-131/01

February 25th, 2006, Tomasz Rychlicki

Judgment of the Court (Sixth Chamber) of 13 February 2003, case C-131/01, Commission of the European Communities v. Italian Republic.

1. Declares that by retaining rules requiring patent agents established in other Member States to be enrolled on the Italian register of patent agents and to have a residence or place of business in Italy, in order to provide services before the Italian Patent Office, the Italian Republic has failed to fulfil its obligations under Articles 49 EC to 55 EC.

Categories: case law | EU law | Judgments of Court of Justice of the EC | Polish patent attorneys.

Patent attorneys, case C-478/01

February 21st, 2006, Tomasz Rychlicki

Judgment of the Court (Fourth Chamber) of 6 March 2003, case C-478/01, Commission of the European Communities v. Grand Duchy of Luxembourg.

1. Declares that, having regard to the requirement that patent agents, when supplying services, should elect domicile with an approved agent, and having regard to the fact that the Luxembourg Government has not provided information concerning the precise conditions for the application of Article 85(2) of the Law of 20 July 1992 amending the rules on patents and Articles 19 and 20 of the Law of 28 December 1998 governing access to occupations in craft trades, business and industry, and to certain liberal professions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC and Article 10 EC.