POLAND Law and Practice Contributed by: Krystyna Szczepanowska-Kozłowska, Marcin Ziarkowski, Krzysztof Popławski and Kacper Sobolewski, A&O Shearman
patent invalidity proceedings. However, suspending the infringement proceedings cannot be completely ruled out due to the large margin of discretion of the court in this matter. The patent invalidation proceedings can be initiated independently of the ongoing opposition proceedings. 1.5 Timing for Main Proceedings on Infringement/Validity Claims for patent infringement are subject to a three- year limitation period, which begins when the entitled entity becomes aware of both the infringement and the infringer’s identity. This three-year period applies to each separate infringement. However, claims are barred after five years from the date the patent infringement occurred. A lawsuit for infringement is served on the defendant by the court. The court sets a deadline for respond ‑ ing when serving the complaint and the defendant may request an extension of this deadline. The dead ‑ line cannot be shorter than two weeks. As a rule, the court requires that a party present all allegations and evidence in response to the complaint. Failure to do so may result in losing the right to invoke them later, unless it can be demonstrated that the party could not raise those points due to new facts or circumstances, or that the need to raise them arose at a later stage. A request for invalidation is served on the patent hold ‑ er by the PPO. If the patent holder resides or is based in Poland, the PPO sets a response deadline of no less than one month. If the patent holder is based outside of Poland, the deadline is extended to two months. This deadline can be extended further if the patent holder notifies the PPO in writing, explaining the rea ‑ sons for the delay before the original deadline expires. In the case of patent infringement, the first court hear ‑ ing is usually scheduled within eight to ten months from the date of filing the response to the claim, and the first-instance proceedings generally last about two to three years. Usually, before the first hearing, the court orders the exchange of further preparatory pleadings.
In cases of requests for invalidation, the first hearing is typically scheduled within six months from the fil ‑ ing date. The invalidation proceedings before the PPO usually last one to two years, but they may take much longer in particularly complex cases. 1.6 Requirements to Bring Infringement Action Claims for patent infringement can be initiated once the patent has been granted. If the infringer acted in good faith, claims can be pursued starting from the day the PPO announced the invention application. However, if the patentee had previously notified the infringing party about the filed application, claims can be pursued from the date of that notification. In the case of European patents, the patentee must submit a Polish translation of the European patent to the PPO within three months from the date of publica ‑ tion by the European Patent Office of the information about the European patent being granted. Claims for infringement of a European patent can be pursued starting from the date when the translation of the claims of the European patent application is published in the bulletin of the PPO. This translation must be filed by the applicant with the PPO. In cases involving patents for a process, the burden of proof is shifted. When it comes to new products, if the patent holder can demonstrate that they were una ‑ ble to determine the actual method used by another person to produce the product, despite making due efforts, they may rely on the assumption that the prod ‑ uct was made using the patented production method. 1.7 Pre-Action Discovery/Disclosure The Polish procedure in patent infringement cases provides for two types of discovery/disclosure pro ‑ ceedings: • request for information; and • request for disclosure or delivery of evidence. Request for Information A request for information can be filed both before and during the infringement proceedings.
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