POLAND LAW AND PRACTICE Contributed by: Krystyna Szczepanowska-Kozłowska, Marcin Ziarkowski, Krzysztof Popławski and Kacper Sobolewski, A&O Shearman, A. Pedzich Sp. k .
1.9 Declaratory Relief Polish law provides for an action to establish that the actions taken or intended do not infringe a patent. Such an action can be brought by an entity with a legal interest. According to Polish law, legal interest occurs in two cases: • the patent holder has asserted that the actions covered by the action constitute an infringement of the patent. This assertion is usually made by sending a cease and desist letter to the entity; or • the legal interest arises when the entity asks the patent holder to confirm that the actions covered by the lawsuit do not infringe their patent, but the patent holder has not con - firmed this within a reasonable deadline. The law also provides that, to be duly set, the deadline for the patent holder to respond must: • be in writing; • not be shorter than two months from the date of delivery of the request; • clearly indicate the actions that may infringe the patent and the extent of possible infringe - ment; and • ask the patent holder to expressly confirm that these actions do not infringe the patent. 1.10 Doctrine of Equivalents Polish law does not expressly provide for the doctrine of equivalents. However, Polish courts sometimes refer to the doctrine of equivalents. In particular, the Supreme Court confirmed in its judgment (V CSK 149/15) that they cannot rely on a literal interpretation of the claims. According to the methodology proposed by the Supreme Court, the answer to whether there has been an infringement is based on the following stages of examination:
• determining the subject matter of the patent on the basis of its claims, description and drawings, taking into account the technical problem underlying the invention and the essence of its solution, as well as the type of the protected solution; • determining the technical features of the disputed solution, including the technical problem underlying it and the essence of the disputed solution; • determining which of the technical features of the disputed solution reflect functionally the solutions already existing in the prior art (determining the closest prior art for the dis - puted solution); • comparing the determined subject matter of the patent with the technical features of the disputed solution to verify which features of the protected solution have been reflected in the disputed solution in the form of their obvi - ous equivalents; and • determining, in case the technical features (obvious equivalents) reproduced in the disputed solution are essential for the techni - cal solution protected by the patent, whether these features could have been developed by a person skilled in the art without knowledge of the patent. 1.11 Clearing the Way Polish law does not provide for an obligation to “clear the way” ahead of a new product launch. 1.12 Experts In patent infringement cases, the court uses written expert opinions as evidence. The court appoints experts at the request of the parties. The parties must make such a request in the claim or the reply to the claim. The party requesting the admission of an expert opinion may suggest persons or institutions that
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