Archive for: Art. 84 APC

Procedural law, case II GSK 643/09

July 12th, 2010, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 11 June 2010 case file II GSK 643/09 clarified the rules for a cassation complaint. Accordingly, a cassation complaint may be based on the violation of substantive law. The violation is based on legal misinterpretation or improper application of the law. Misinterpretation is a false understanding of legal norms. The improper application is a wrong recognition that the factual scenario established in a given case is a subject to a specific rule of law. The improper application of law may also rely on non-application of the legal provision which should be used in a given case. The violation of the substantive law by the court of first instance (the Voivodeship Administrative Court) is always based on the wrong assessment of the application of substantive law by the Polish Patent Office. That is, either through the unfounded acceptance of an error in law that was made by the PPO or unjustified accusation of the PPO of such error. The SAC stressed that the allegation of infringement of substantive law can be effectively formulated only when the applicant who filed a cassation complaint agrees that the facts of the case had been established properly. Putting this plea in the case of challenging the factual findings is premature.

Trade mark law, case VI SA/Wa 1302/09

November 15th, 2009, Tomasz Rychlicki

The Polish Patent Office invalidated the right of protection for “METAL-CHEM” R-138491 trade mark in part for goods in Class 7. The owner Przedsiębiorstwo Wdrażania Postępu Technicznego METAL-CHEM Spółka z o.o. from Gliwice filed a complaint against this decision, claiming inter alia that the PPO refrained from taking evidence from expert witness with regard to homegenity of the goods.


The Voivodeship Administrative Court in Warsaw in its judgment of 13 October 2010 case file VI SA/Wa 1302/09 upheld the contested decision and ruled that the Adjudicative Board of the PPO, consisting of experts and the deciding cases in litigation proceedings may under the Article 84 § 1 of the APC appoint an experts witness to establish the facts on which the Patent Office has doubts, while the knowledge of the Board members is not sufficient.

Article 84
§ 1. If a case requires specialist information, a public administration body may consult an expert or experts for an opinion.
§ 2. An expert shall be excluded from proceedings on the basis of the rules set out in Article 24. The provisions regarding the hearing of witnesses shall also apply to experts.

It follows that the use of an experts witness should be incidental in nature as it was already discussed in by the Voivodeship Administrative Court in its judgment of 20 October 2006, case file VI SA/Wa 1075/06. Thus the PPO has the right but not the obligation, to refer to any opinion and it is also indicated by the optional nature of Article 84 § 1 of the APC. The PPO as a specialized authority that grants rights of protection for trade marks and other industrial property rights under the rule of law, is the only body that verifies under litigation proceedings, whether or not the exclusive right of protection for trademark meets statutory requirements. In this case, the task of the Board was the correct assessment of the similarity of the goods contained in the opposing trade marks, in which both parties used the terms in which the general range of meaning was available and is not misleading.