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Enforcement through the courts


What are the most effective ways for a patent owner to enforce its rights in your jurisdiction?

Patent infringement cases are mostly litigated before the civil courts. Typically, the patent owner files a suit with a motion for preliminary injunction enclosed, which (if successful) restricts the infringing activity (eg, the sale of goods which infringe the patent) for the duration of the proceedings. Infringement proceedings are often preceded by applying for a preliminary injunction in the separate proceedings, which are quick (in practice, a maximum of a few weeks) and may serve as leverage to launch negotiations with the defendant.

Criminal proceedings are rarely used and are only available for a limited number of offences, such as filing a patent for someone else's invention. Most instances of patent infringement are not considered crimes, and therefore, only civil proceedings are available.

What scope is there for forum selection?

In civil cases, a claim may be filed at the plaintiff's discretion before:

  • the court with jurisdiction over the defendant’s place of residence or the defendant’s registered office; or
  • the court with jurisdiction where the event which caused damage occurred (eg, where the infringing products were sold). When a patent infringement impacts different parts of Poland, plaintiffs may choose a forum easily, although recently courts have tended to limit the freedom of forum selection to courts where it can be legitimately argued that the infringement takes place.

In general, all 46 district courts (middle-level courts in Poland) have jurisdiction in patent infringement cases as first-instance courts, regardless of the case’s complexity or value.


What are the stages in the litigation process leading up to a full trial?

No specific action is required from the plaintiff before filing a suit. After filing the statement of claim, the court checks whether the formal requirements have been met (eg, payment of the court fee) and then serves the claim on the defendant, which may file a response. The parties are expected to submit motions for evidence in the statement of claim and the response. However, the court may consider motions for evidence submitted at a later date if the party proves that it could not submit earlier.

A preparatory session may be ordered by the court before the trial, but this measure is relatively new in Polish law and still uncommon. Instead of such a session, the court usually orders a first trial date. There may be multiple sessions before a judgment is issued.

How easy is it for defendants to delay proceedings and how can plaintiffs prevent them from doing so?

Court proceedings in Poland tend to be slow regardless of the parties' efforts. There are multiple hearings in each case, which are often several months apart, during which time the case does not progress and the court hears other cases. A case may be further delayed when a person, such as a witness or party, fails to appear before the court on the date as ordered (for which they may be fined, although this occurs only if the absence is not excused). In such case, another hearing must be ordered, which is likely to take place several months later. Expert opinions often take months to be prepared and the hearings are suspended during that time.

The defendant may be interested in delaying proceedings, as this may be beneficial if a preliminary injunction in the plaintiff's favour has been granted. Parties sometimes file motions for evidence (which demand summoning additional witnesses or ordering expert opinions) as a means of delaying proceedings, among other measures.

Defendants sometimes file for patent invalidation to delay infringement proceedings. While the invalidation procedure is held before the Patent Office and not the civil court hearing the patent infringement case due to Poland’s bifurcated system, the courts sometimes stay the infringement proceedings until invalidity is decided or, in practice, appear to proceed slower when they know that invalidation proceedings are underway.

As delays are often caused by matters which the parties cannot control (at least in theory, as is the case with witness absences), the means to prevent such delays are limited. In case of motions for evidence filed by a party to delay proceedings, the court can dismiss such motions ex officio or at the request of the other party. The parties may also apply to the court to set a deadline for the presentation of their arguments. Evidence that is submitted late will be disregarded by the court (preclusion).

How might a party challenge the validity of a patent through the courts in anticipation of a potential suit for infringement being issued against it?

A patent’s validity cannot be challenged before the Polish courts due to the country’s bifurcated system. The Patent Office is exclusively responsible for invalidation proceedings, which may be an opposition or application for patent invalidation.

At trial

What level of expertise can a patent owner expect from the courts?

Patent infringement cases are examined by ordinary civil law judges, who have a general legal background but generally no specific patent law or technical expertise.

Are cases decided by one judge, a panel of judges or a jury?

Civil cases are generally decided by a single judge at first instance, three judges in appeal proceedings and three judges in the Supreme Court. More complicated cases may be considered by panels consisting of more judges, but this is uncommon. There are no jury trials in patent cases.

If jury trials do exist, what is the process for deciding whether a case should be put to a jury?

Jury trials do not exist for patent cases.

What role can and do expert witnesses play in proceedings?

Parties can present opinions commissioned from experts before the court (ie, so-called ‘private opinions’), but they are not considered as evidence.

The court may also appoint expert witnesses whose opinions are considered evidence in the case. Parties may indicate expert witnesses which they would prefer to be appointed for the case, but courts have the final say. The level of technical expertise of various experts varies greatly. During proceedings, parties may:

  • highlight shortcomings in experts' opinions;
  • demand a supplementary opinion if some issues remain unclear; or
  • demand additional opinions to be prepared by different experts.

Generally, the expert witness who prepared an opinion is also summoned before the court, where cross-examination takes place and parties may question the opinion.

As judges lack technical expertise, expert opinions influence the outcome of Polish patent cases. 

Does your jurisdiction apply a doctrine of equivalents and, if so, how?

The doctrine of equivalents is not explicitly stipulated in Polish statutory law, but is sometimes applied by the courts. The doctrine argues that the courts should interpret the law in a pro-EU way that is concurrent with the EU Patent Convention where the doctrine applies. The courts have adopted no clear approach in this regard. In practice, the party that wants the doctrine to be applied must persuade the court to implement it. Further, there is no established test to verify whether the differences between the invention’s features are equivalent. Case law in this regard is scarce, therefore, the issue is settled on a case-by-case basis.

Is it possible to obtain preliminary injunctions? If so, under what circumstances?

It is common for the plaintiff to apply for a preliminary injunction in patent infringement cases. The injunction may cover for example a temporary ban on introducing specific products to the market. To obtain an injunction, the plaintiff must prove that:

  • he or she has a legal interest in obtaining it (eg, because it would be impossible to achieve the purpose of the proceedings without it); and
  • the infringement claim is sufficiently substantiated.

The courts tend to examine preliminary injunctions relatively quickly (within a few days from filing) and frequently award injunctions in patent infringement cases. Preliminary injunctions are normally granted in ex parte proceedings. Thus, the defendant generally learns about the injunction only once it is served.

Preliminary orders may also cover claims to force the defendant to provide information on distribution networks of goods which infringe a patent.

How are issues around infringement and validity treated in your jurisdiction?

Polish law follows a bifurcated system – patent validity and infringement claims are strictly separated. The court examining a patent infringement case has no authority to assess the patent’s validity. Invalidation cases may be exclusively reviewed by the Patent Office in administrative proceedings. Similarly, the Patent Office cannot examine patent infringement claims.

In practice, it often happens that when the plaintiff files an infringement claim, the defendant files for invalidation. If the patent is invalidated, the infringement proceedings must be discontinued, as there is no longer a relevant right to assert. Civil courts often abstain from activity in such cases by either issuing a formal order staying proceedings or abstaining from activity until the invalidation proceedings are resolved, which has a similar effect.

Will courts consider decisions in cases involving similar issues from other jurisdictions?

The Polish courts sometimes refer to foreign case law, although all references to other cases – either foreign or local – are not considered binding precedents. They may be used by parties as a means of persuasion, but have no legal effect as such.

Damages and remedies

Can the successful party obtain costs from the losing party?

The losing party is normally ordered to pay the successful party’s legal costs, which consist of court fees (including the costs of preparing experts' opinions) and attorneys' fees. The law limits the amount of attorneys' fees which may be recovered. The limit is calculated on the basis of the complexity and value of the case. However, in practice, the successful party is likely to receive only a few thousand zloty or less as payment of legal costs, which may be a fraction of the costs actually borne.

What are the typical remedies granted to a successful plaintiff?

The available remedies are as follows:

  • obtaining an order for the cessation of the infringement (ie, a permanent injunction);
  • obtaining an order for the return of unlawfully earned benefits;
  • obtaining an order regarding the unlawful products or materials owned by the infringing party – especially through a withdrawal from the market, destruction or awarding the products or materials to the plaintiff in lieu of a monetary remedy (in practice, this claim covers the most frequent form of implementing the claim for the return of the unlawfully earned benefits);
  • obtaining an order for remedies for the damage inflicted (awarding damages); and
  • publication of the court decision.

Legal costs are also awarded to the successful party.

How are damages awards calculated? Are punitive damages available?

To receive damages, a plaintiff must prove that the infringement was culpable (ie, that the claimant's attitude was wrongful, negligent or intentional). Damages may be awarded at the plaintiff’s discretion on the basis of the following regimes:

  • the so-called ‘general terms’, which use standard civil law terms for the award of damages. In essence, these terms require the plaintiff to prove that:
    • the defendant infringed the plaintiff’s rights;
    • the plaintiff suffered damage and the amount of damage suffered;
    • there is a causal link between the infringed rights and the damage suffered; and
    • the defendant's actions were culpable;
  • payment of cash in the amount corresponding to the licence fee or other relevant remuneration which would be due if the plaintiff had consented to the use of the patent in the way that the defendant used it unlawfully.

In practice, some plaintiffs abstain from pursuing claims for damages and concentrate on seeking a permanent injunction, which is often the plaintiff’s main goal, whose conditions are more relaxed.

No punitive damages are available. The purpose of awarding damages in Polish law is to remedy only losses incurred.

How common is it for courts to grant permanent injunctions to successful plaintiffs and under what circumstances will they do this?

Plaintiffs who want a permanent injunction must apply for it and specify the activities which the injunction should cover. Permanent injunctions are almost always granted if the defendant is found to infringe the plaintiff’s rights.

To obtain the injunction, the plaintiff must prove that the infringement has actually occurred.

Timescale and costs

How long does it take to obtain a decision at first instance and is it possible to expedite this process?

Plaintiffs who want a permanent injunction must apply for it and specify the activities which the injunction should cover. Permanent injunctions are almost always granted if the defendant is found to infringe the plaintiff’s rights.

To obtain the injunction, the plaintiff must prove that the infringement has actually occurred.

How much should a litigant plan to pay to take a case through to a first-instance decision?

The cost of patent litigation is linked to the complexity of the case. The legal costs of a first-instance patent infringement case are generally between €40,000 and €100,000.


Under what circumstances will the losing party in a first-instance case be granted the right to appeal? How long does an appeal typically take?

A first-instance court decision is not final and may be appealed. There are no restrictions regarding the right to ordinary appeal as long as it is filed on time – no leave for appeal is required. The deadline for filing an appeal is two weeks from when the appellant is served with the first-instance judgment with its reasoning.

Appeals from district courts (where patent infringement cases are considered) are heard by appellate courts. Appellate court decisions are final, enforceable and may be further contested only by extraordinary appellate measures, such as a cassation appeal submitted to the Supreme Court. The right to submit a cassation appeal is rarely granted and there are several procedural restrictions concerning such appeals. The deadline to file a cassation appeal is two months from the date on which the appellant is served with the court of appeal judgment with its reasoning.

There is no fixed term for the appellate court to examine the appeal. It usually takes the Warsaw Appellate Court two to three years to pass a judgment. In cassation appeals, a Supreme Court decision may be expected after another two years, approximately.

Options away from court

Are there other dispute resolution options open to parties that believe their patents to be infringed outside the courts?

As with most civil cases, parties can seek alternative means of dispute resolution, such as mediation or arbitration. Parties may also reach a settlement before the court which the court must approve. Such a settlement is enforceable.

Courts are bound to encourage parties to undertake mediation, but in practice it is not commonly used in patent infringement cases.

There is no arbitration court in Poland that specialises in patent infringement cases, but patent disputes can be brought before a permanent or ad hoc arbitration court if both parties agree. To be effective as a judgment, an arbitration court ruling must be confirmed by a common court. In practice, arbitration is rare in patent infringement cases.

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