POLAND Trends and Developments Contributed by: Szymon Gogulski, Marek Oleksyn and Maciej Gil, Sołtysiński Kawecki & Szlęzak
Sołtysiński Kawecki & Szlęzak Jasna 26 Street 00-054 Warsaw Poland
Tel: 00 4822 6087 000 Fax: 00 4822 6087 001 Email: office@skslegal.pl Web: www.skslegal.pl
Eight Years Since the Transposition of the EU Trade Secrets Directive in Poland – The State of Play The protection of trade secrets in Poland is substan - tially governed by the Law on Counteracting Unfair Competition dated 16 April 1993 (UCL) implement - ing the Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, dated 8 June 2016 (the “Trade Secrets Directive”). The UCL regulates the prerequisites to protect information as a trade secret, the scope of trade secret protection, exceptions from protection, available remedies and criminal liability. While the Trade Secrets Directive was transposed into the Polish legal system in September 2018, it is worth noting that the key principles, scope and prerequisites of protection, as well as legal remedies available for rights-holders (claimants), were already introduced by the UCL in 1993. Consequently, the transposition of the Trade Secrets Directive in 2018 did not substan - tially change the level of trade secret protection in Poland or practice in relation to them. On the con - trary, the key case law in this respect, including rulings issued before September 2018 by the Supreme Court and courts of appeal, remains valid and continues to form an important element of jurisprudence concern - ing trade secret protection. Therefore, it is circumstances such as technological progress, including the digitalisation of business pro - cesses, the AI revolution, and increasingly frequent cross-border (including global) transactions and tech - nology transfers, that are key to assessing trends in
trade secret protection. These are discussed in the subsequent sections. Specialist IP courts On the legislative side, a significant change in Pol - ish trade secret protection practice took place in July 2020. At that time, specialised IP courts started to operate. These courts have exclusive jurisdiction to examine all – broadly defined – IP matters, which comprise all unfair competition cases, including trade secret disputes. The specialised IP courts operate as sepa - rate divisions (chambers) of regional courts in the first instance, and of courts of appeal as second instance courts. There are five first-instance IP courts – in War - saw, Poznań, Gdańsk, Katowice and Lublin – which have jurisdiction to examine trade secret disputes, and two second instance IP courts in Warsaw and Poznań. Additionally, the Regional Court in Warsaw has exclusive jurisdiction to resolve all matters per - taining to the infringement of technical trade secrets in the first instance. Court proceedings concerning trade secret infringe - ment are conducted under specific rules designed exclusively for IP (including trade secrets) disputes, as set out in the Polish Civil Procedure Code (CPC). These specific procedural rules were enacted together with the establishment of the specialised IP courts in July 2020 and include, among other things: • the mandatory representation of litigating parties by attorneys-at-law or patent attorneys, unless the dispute value is below PLN20,000 or the court releases a party (upon request or ex officio) from
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