Kancelaria Wiński

Unitary patent not for Poland?

Poland was one of the 25 EU Member States that participate in the enhanced cooperation on the establishment of a unitary patent protection. However, recently a revived discussion has been ongoing in Poland, whether or not to accept the current wording of the regulations related to the unitary patent system and the Agreement on the Unitary Patent Court. Regulatory projects assume that a Unitary Patent would have to be translated only into three languages – English, French, and German. Moreover, there is no provision for the establishment of a local division of the Court of First Instance in Poland at the moment, which significantly limits the access of Polish units to the patent litigation system.

Considering that in 2012, Polish entrepreneurs submitted less than 400 grant applications for the European Patent (compared to Germany, where the number of applications exceeds 33 thousand), the beneficiaries of new solutions will be countries that are most developed technologically, with high development potential and adequate resources necessary for research and further work, particularly large international corporations. In practice, the adoption of these solutions will reduce the role of Polish entrepreneurs, who will become mere users of other's inventions, often paying high licence fees in addition. The upcoming provisions shift the legal risk related to patent infringement to Polish entities, which will result in higher operating costs and diminishing of the ability to compete with foreign companies. Polish entrepreneurs will be also forced to incur the costs of translating patent descriptions and conditions, which will not be officially published in the Polish language. This will lead to the lack of legal clarity in relation to patents applied in Poland.

At the beginning of October, an analysis of the costs and the benefits of unitary patent protection for Polish enterprises should be completed by the Ministry of Economy. A report of the Ministry of Economy may have a considerable impact on the Polish Government reaching its decision. It is significant that the verdict of the European Court of Justice in case C-295/11 (Spain v Council and Italy v Council, joined cases C-274/11, C-295/11) will be passed soon.

At the moment, Poland’s acceptance of unitary patent protection on Unitary Paten Court is still in question.


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