POLAND Law and Practice Contributed by: Szymon Gogulski, Marek Oleksyn and Maciej Gil, Sołtysiński Kawecki & Szlęzak
and one hearing date in the second instance in trade secrets disputes. Witness Testimony Because of the nature of trade secrets disputes, wit - ness testimony forms a substantial part of eviden - tiary proceedings. However, it should be noted that, in commercial litigations, the CPC substantially limits witness testimony, and the cases are examined mostly based on documents. Consequently, in commercial litigations concerning trade secrets, the claimant should prepare a strong documentary evidence file and (if needed) be able to effectively use the mecha - nisms discussed in 5.7 Obtaining Information and Evidence . Time Taken for Proceedings Trade secrets proceedings usually last approximately one to two years in the first instance and approxi - mately one year in the second instance. 6.3 Use of Expert Witnesses Court-Appointed Experts Under the CPC, the court can appoint an expert in cases where “special information” is required – eg, specific biotech, chemical, construction or financial knowledge necessary for the court to assess a claim. The court may decide to appoint an expert after hearing both parties’ positions. The claimants usually apply to the court to appoint an expert in their law - suit. Defendants may also apply for a court-appointed expert in reply to a lawsuit. An expert’s role is not to decide on the infringement but rather to equip the judge with the specific information necessary to examine the case and render a judgment. Court Expert’s Opinion Court-appointed experts prepare their opinions in writing. The court can subsequently summon experts to supplement or clarify their opinions verbally (dur - ing court hearings) or in writing. The parties can also comment on the expert’s opinion. Private Experts Private experts’ opinions are also allowed in trade secrets disputes to additionally substantiate the liti - gating party’s position and arguments. However, such
private experts cannot substitute for the role of court- appointed experts.
7. Remedies 7.1 Preliminary Injunctive Relief General
Preliminary injunctive relief is available before the final judgment in the case is given. See the preliminary injunction requirements in 5.6 Seizure Mechanisms . In the decision on the preliminary injunctive relief the court may order the cessation of unauthorised actions by the defendant for the duration of the main infringe - ment case. A motion for a preliminary injunctive relief can be filed either before or during the main infringement litigation. Security Deposit The court can make enforcement of its preliminary injunction decision conditional on the claimant sub - mitting a security deposit (a bond) to secure the claims that the defendant (or a third party) may possibly have vis-à-vis the claimant as a result of the enforcement of such preliminary injunction. While deciding on a bond, the court can act either ex officio or upon the defendant’s request. The bond requirement may, in some cases, work as a cooling tool against exces - sively shaped preliminary injunctions, especially in those matters whose outcome is not obvious. 7.2 Measures of Damages Types of Damages Available The financial claims available for a successful claimant are one or both of the following: • recovery by the defendant of unduly obtained ben - efits based on general civil law rules; and/or • the redress of damage calculated based on either general civil law rules or, alternatively, on a fictitious licence fee. Recovery of Unduly Obtained Benefits Although case law, commentators and practitioners are not uniform regarding the approach and grounds to calculate the amount of unduly obtained benefits,
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