POLAND LAW AND PRACTICE Contributed by: Krystyna Szczepanowska-Kozłowska, Marcin Ziarkowski, Krzysztof Popławski and Kacper Sobolewski, A&O Shearman, A. Pedzich Sp. k .
have the appropriate knowledge, but the final decision on who will become an expert in the case belongs to the court. The parties may ask questions to the experts at the hearing if they make such a request after familiarising them - selves with the expert opinion. If the party disa - grees with the content of the opinion, it may file a motion for the appointment of another expert. The admission of another opinion from a dif - ferent expert depends on the discretion of the court. The parties may also attach expert opinions pre - pared at their own request. Such opinions are, however, treated as statements of the parties themselves. Such opinions are often used by the parties in patent infringement proceedings. They allow them to better explain to the court the complex issues of a technical nature. In patent invalidation proceedings, evidence from an expert opinion is usually not admitted unless the PPO (seldom) deems it necessary. As in infringement proceedings, the parties often submit private expert opinions to corroborate their claims. 1.13 Use of Experiments Experiments are allowed in patent infringement proceedings. An experiment can also be part of expert opinion evidence if conducting it or assessing its results requires expert knowledge. The court determines the manner of conducting the experiment. The results of the experiments carried out out - side the court proceedings can also be attached as so-called private documents. In such cases, they are subject to evaluation according to the rules applicable to other evidence.
Theoretically, there are no obstacles to admit - ting evidence in the form of an experiment in the invalidation proceedings before the PPO. How - ever, in practice, this would involve admitting an expert, which the PPO is generally reluctant to do. On the other hand, it is not uncommon for the parties to submit documents describing the conduct and results of experiments, which, of course, the PPO can take into account when deciding the case. 1.14 Discovery/Disclosure The party claiming infringement is required to provide evidence that the patent has been vio - lated, which entails proving that the defend - ant engaged in actions that constitute patent infringement. For instance, this could involve presenting samples of the goods made available in the market, along with documents confirming their purchase, or providing evidence of such products being offered, such as relevant infor - mation regarding the availability of medicinal products. To establish infringement, it is essen - tial to demonstrate that these goods possess the features protected by the patent, which may include documents containing relevant analyses or expert opinions. The defendant must show that the products introduced to the market do not have the features protected by the patent by presenting descrip - tions of products, processes, or documents in the form of private opinions or analyses. 1.15 Defences and Exceptions to Patent Infringement Polish law does not contain a closed list of defences that can be raised in patent infringe - ment proceedings. Patent infringement is pre - cluded by the consent of the right holder (eg, in the form of a licence agreement) or by a statu - tory right to use the patent.
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