POLAND Law and Practice Contributed by: Szymon Gogulski, Marek Oleksyn and Maciej Gil, Sołtysiński Kawecki & Szlęzak
1.9 Duration of Protection for Trade Secrets Term of Protection Trade secrets protection lasts as long as the prereq - uisites for its protection are met (see 1.4 Elements of Trade Secret Protection ); in particular, as long as the protected information is not easily accessible to per - sons from the relevant industry. There is no maximum term of protection. Consequences of Disclosure Any kind of disclosure (accidental or controlled) may result in the loss of protection if such information becomes easily accessible to persons from the rel - evant industry. However, if the recipient of the trade secret (even if unauthorised) keeps such information confidential, such disclosure will not affect the protec - tion for benefit of the rightful trade secret owner. In typical situations, a trade secret may, for example, be disclosed through publication in a scientific journal Trade secrets may be licensed to third parties in a manner similar to other IP rights (eg, inventions or copyrightable works). Although only licence agree - ments for the use of inventions constituting trade secrets are specifically addressed in provisions of law, these rules may in principle also be applied by analogy to other trade secrets licences. Trade secrets licence agreements can be: • non-exclusive or exclusive; • full (ie, the licensee may use the trade secrets within the same scope as the licensor) or limited; • active (where the licensor is obliged to provide the licensee with the information and technical expe - rience needed to use the subject matter of the license) or passive; and • concluded for a defined or undefined period. To maintain the protection of the licensed trade secrets, the licensee should be obliged to undertake reasonable measures to keep its confidentiality (see 1.5 Reasonable Measures ). or at a trade fair. 1.10 Licensing General Rules
Sublicensing A trade secret licence agreement may be sublicensed only with the licensor’s consent. The admissibility of granting further sublicences to use the trade secret is debatable. Form There are different views on whether the requirement of a written form (wet-ink or qualified electronic sig - natures) also applies to trade secrets licences. Given the subject matter of these types of licence agree - ment and for precautionary reasons, a written form of a licence agreement is highly recommended. Assignment of Rights Trade secrets rights may be also assigned to a third party – eg, under a sale agreement or as an in-kind contribution. In such a case, as a rule, the assignor loses their right to use the assigned trade secrets. 1.11 What Differentiates Trade Secrets From Other IP Rights According to prevailing views, a trade secret may be considered an IP right. However, trade secrets have certain specific features not shared with other IP rights: • a given piece of information may be protected as an independent trade secret of several entities (eg, as a result of independent discovery or reverse engineering); • it has no maximum term of protection (this is simi - lar to trade marks but unlike patents or economic copyrights); and • there are no protection fees or registration require - ments (unlike for some industrial property rights). 1.12 Overlapping IP Rights It is possible for a claimant to assert trade secret rights in combination with other types of IP rights, especially with economic copyrights (eg, to documents includ - ing a description of a given trade secret), as well as patent rights (eg, where a manufacturing process is protected partially as trade secrets and partially by patented inventions).
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