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Archive for: Art. 24 IPL

Industrial design law, case VI SA/Wa 1706/09

September 15th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 4 December 2009 case file VI SA/Wa 1706/09 held that there is no doubt that only the specialist is qualified to comment on the general impression that questioned designs produced on an informed user, as this specialist is also deemed as the informed user within the meaning of Article 104 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.

Article 104
1. An industrial design shall be considered to have individual character, if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available before the date according to which priority is determined.

2. In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.

The Court also noted that in the assessment of evidence and proper application of the rule of law provided in Article 104 the IPL, the concept of “informed user”, “general impression” and “degree of creative freedom in developing the design”, which have not beed defined by the legislature, had to explained by the PPO and the Court. In the opinion of the Court, the essential arguments of the Supreme Court’s judgment of 23 October 2007 case file II CSK 302/07 could be applied to this case case. See “Industrial design case, II CSK 302/07“.

Wzór Przemysłowy Rp-11355

This judgment concerned the industrial design “Kanapa tapicerowana rozkładana” (in English: upholstered sofa bed) Rp-11355. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Patent law, case VI SA/Wa 327/10

May 27th, 2010, Tomasz Rychlicki

The Voivodeship Administrative court in its judgment of 28 April 2010 case file VI SA/Wa 327/10 held that the Polish Patent Office should provide translation into Polish of documents that were allowed as evidence in administrative proceedings. Such conclusions stem from the Act of 7 October 1999 on the Polish language published in Journal of Laws (Dziennik Ustaw) of 1999 No 90 item 999. The authority/body provides official actions of public administration in the Polish language. The aforementioned act obliges the authority to make foreign language translation of the document. The examination of the contents of the document should be conducted in Polish, the one and only official language of the Polish administrative proceedings. Only then one can say that the procedural step, which consists of taking evidence from a document written in a foreign language, has been carried out correctly. The constitutional principle, which is reflected in rules of the Act on the Polish language, provides that the official language of the Republic of Poland is Polish and it requires that the documents being major evidence that affects the outcome of the administrative case, has been translated into Polish. Only then will it be possible to assess the accuracy of the examination of the content of such document.

Patent law, case VI SA/Wa 112/10

May 22nd, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 19 March 2010 case file VI SA/Wa 112/10 held that adding to the patent application an idependent patent claim, that has a general feature that “electronic file is made available to anyone via the Internet”, which was made with the application for reconsideration, does not give the criteria of patentability to the “invention” that was disclosed in the application in question, according to article 28 point 6 within the meaning of article 24 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 of 13 June 2003, Journal of Laws (Dziennik Ustaw) No. 119, item 1117, with later amendments.

Article 24
Patents shall be granted – regardless of the field of technology – for any inventions which are new, which involve an inventive step and which are susceptible of industrial application.

(…)

Article 28
The following in particular shall not be regarded as inventions within the meaning of Article 24:
(i) discoveries, scientific theories and mathematical methods,
(ii) aesthetic creations,
(iii) schemes, rules and methods for performing mental acts, doing business or playing games,
(iv) creations, whose incapability of exploitation may be proved under the generally accepted and recognised principles of science,
(v) programs for computers,
(vi) presentations of information.

The VAC held that the additional claim was just presentation of information.

Patent law, case VI SA/Wa 2279/08

October 27th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court in its judgment of 27 May 2009 case file VI SA/Wa 2279/08 ruled that the Polish Patent Office is not an authority that mechanically approves patents granted by the EPO. The Court held that if the dispute between the applicant and the Polish Patent Office related to the nature of the invention, as is was in this case, by refusing to grant a patent, the Patent Office in principle cannot merely on its own conviction as to the subject of the patent application. The PPO should seek to gather sufficient evidence to support its position. Such evidence could include witness-expert testimony. The absence of a comprehensive hearing of evidence and basing the questioned decisions mostly on its own belief in the recognition, what is the subject of the patent application, and such a situation took place in this case, justified the infringement of Articles 7, 77 § 1 and Article 107 § 3 of the APC, as having a significant impact on the outcome of the case.

Article 7
Public administration bodies shall uphold the rule of law during proceedings and shall take all necessary steps to clarify the facts of a case and to resolve it, having regard to the public interest and the legitimate interests of members of the public.

(…)

Article 77.
§ 1. The public administration body is required to comprehensively collect and examine all evidential material.
§ 2. At each stage of proceedings a body can amend, supplement or withdraw rulings made regarding the examination of evidence.
§ 3. An body conducting proceedings as a result of having been required to do so by the body having jurisdiction to settle the case (Article 52) may, on an ex officio basis or on application by one of the parties, hear new witnesses or experts on circumstances that form the objects of such proceedings.
§ 4. Universally accepted facts and facts known to the body ex officio do not require proof. Parties to proceedings should be informed of facts that are known to the body.

(…)

Article 107.
§ 1. A decision should contain: the name of the public administration body, the date of issue, the name(s) of the party or parties, the legal authority referred to, a ruling, a factual and legal justification, an advisory notice as to whether and how an appeal may be brought and the signature, name and position of the person authorised to issue the decision. Any decision which may be challenged by a petition to the civil court or a complaint to the administrative court should contain an advisory notice that such a petition or complaint may be brought.
§ 2. Other regulations may contain other elements which a decision should contain.
§ 3. The factual justification of the decision should contain the facts that the body regards as proven, the evidence relied upon and the reasons for which other evidence has been treated as not authentic and without probative force. The legal justification should contain the legal authority for the decision with reference to the relevant law.
§ 4. If the decision fully reflects the demands of the party then there is no need to provide a justification for the decision, but this does not apply to decisions in contentious cases and decisions given on appeal.
§ 5. A body can also dispense with a justification of a decision in such cases if under current statutory regulations there is a possibility of dispensing with or limiting the justification because of the interests of State security or public order.

The Court ruled that the PPO should make a thorough analysis of the concept of “technical character of the invention” and should indicate why it interprets it very narrowly, taking in this respect the view of the EPO. The PPO should also consider whether the European patent has been granted for the same solution, and examine the merits of different assessment of the invention in Poland. During the re-hearing of the case the PPO will will take the position whether the applied solution has been sufficiently disclosed, and if so, only then will further examine its patentability, given that one of the elements of assessing the patentability of the invention is a technical solutions. Due to the lack of legal definition of a “solution of a technical nature” in assessing a technical nature of the present invention the PPO is obliged to indicate what in the opinion of the PPO is deemed as “technical solution”. The PPO will assess the technical nature of the claimed invention and will refer to the applicant’s arguments, if the interpretation of that concept made by the PPO would continue to differ on how this concept is understood to the applicant.