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Legislative Implementation of Flexibilities - Poland

Title:Articles 44-47 of the Industrial Property Law of 30/06/2000, as last amended by Act of 29/06/2007 and Articles 34 and 35 of the Regulations thereto
Field of IP:Patents
Type of flexibility:Substantive examination
Summary table:PDF

Provisions of Law

Article 44

1. As from the date of publication of the particulars of the patent application third parties may inspect the application specification. Until a decision on the grant of a patent is taken, such parties may submit to the Patent Office any observations as to the existence of grounds that may cause a patent to be denied.

2. Any amendments to the patent claims received by the Patent Office at least one month before the publication of the particulars of the patent application shall be introduced in the specification together with the indication of the date of making thereof.

Article 45

1. During a period preceding the publication of the particulars of a patent application filed, the files relating to the application may not be disclosed or made available to unauthorised parties without the applicant's consent.

2. Where in the request for a patent the applicant gives his consent, the Patent Office may only make available to third parties the information on the filing of the application, while disclosing its number, the filing date, the title of the invention and the applicant's name.

3. In the course of examination of the patent application the Patent Office may, without the applicant's consent, seek opinions, as necessary. Anyone involved in the preparation and the issue of such opinions shall be bound not to disclose the data concerning the application.

Article 46

1. When reasonable, the Patent Office, when having established that the statutory requirements for the grant of a patent have been satisfied, may invite the applicant in an order to furnish, within a fixed time limit and under pain of discontinuance of the proceedings, documents and explanations relating to the application, as well as to make specified corrections or additions in the documents making up the application and to furnish drawings which, although not essential for a better understanding of the invention, however are needed for the purpose of the proper presentation of the invention or are for other reasons necessary.

2. Paragraph (1) shall apply accordingly, where after the start of patent granting proceedings the applicant has made additions or corrections in the application documentation that are prohibited by this Law.

3. Subject to paragraph (4), the Patent Office may make corrections in the documents making up the application only to the extent as necessary to rectify obvious mistakes or language errors.

4. The Patent Office may also make corrections in the abstract other than those specified in paragraph (3).

Article 47

1. For each patent application, the particulars of which are to be published, the Patent Office shall draw up a search report containing the citations of the documents which may be taken into consideration in evaluating the invention claimed in the application.

2. Immediately after it has been drawn up, the search report referred to in paragraph (1) shall be communicated by the Patent Office to the applicant.

Regulations

34.-After having carried out the examination, the Patent Office shall:

i) not consider the subject matter of the invention as a technical solution, especially where it finds that it does not relate to any material product described by means of technical features of its structure or composition, or to a definite technical method of influence the substance.

ii) not consider the subject matter of the invention as a new solution, if it may produce evidences, in light of which all substantial features of that solution, taken together, cover entirely the solution already known,

iii) consider the invention claimed and complying with the requirement of novelty as an obvious solution, if it may evidence the state of the art to the extent which justify the ascertainment that the implementation or application of the invention results, when considering the average knowledge of a person skilled in the art, directly from that state of the art,

iv) not consider the subject matter of the application as susceptible of application, especially where it finds that it is impossible to use it when considering generally adopted and recognized scientific principles or if it is only susceptible of a single application.

35.-1) The Patent Office shall decide on the refusal to grant a patent in cases referred to in para 34, as well as in the event where it finds that:

i) the invention claimed is excluded from the patent protection (Article 12),

ii) the solution has not been presented in a manner which sufficiently discloses all substantive features necessary for it to be carried out or the applicant has not determined in the claims the scope of protection sought through the indication of at least one technical feature relating to the subject matter of the application (Article 26),

iii) a person seeking for a patent is not entitled to a patent,

iv) the applicant is not entitled to obtain a patent pursuant to Article 4, or

v) a patent has been granted to a patentee enjoying the right of priority.

2) The Patent Office shall, before taking the decision referred to in section 1), fix for the applicant a time limit for reacting on proofs and documents which may evidence the lack of statutory requirements for granting a patent.

3) In the case, where the lack of statutory requirements for granting a patent relates only to a part of the application and the applicant has not restricted the scope of protection sought, the provisions of sections 1) and 2) shall apply accordingly.

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