Legislative Implementation of Flexibilities - Poland

Title:	Articles 82-83 and 88 of the Industrial Property Law of 30/06/2000, as amended by Act of 23/01/2004 and Act of 29/06/2007
Field of IP:	Patents
Type of flexibility:	Compulsory licenses and government use
Summary table:

Provisions of Law

Article 82

1. The Patent Office may grant authorisation to exploit a patented invention of another person (a compulsory license), where:

(i) it is necessary to prevent or eliminate a state of national emergency, in particular in the field of defence, public order, the protection of human life and health, as well as the protection of natural environment, or

(ii) it has been established that the patent has been abused within the meaning of Article 68, or

(iii) it has been established that the patent holder enjoying the right of priority of an earlier application (the earlier patent) prevents, by refusing to conclude a license contract, the meeting of home market demands through the exploitation of the patented invention (the dependent patent), whose exploitation would encroach upon the earlier patent; in such case, the holder of the earlier patent may demand that an authorisation be given to him for the exploitation of the invention that is the subject matter of the dependent patent (cross-license).

2. The grant of a compulsory license for the exploitation of an invention in the case referred to in paragraph (1)(iii) shall be conditional upon ascertainment that the exploitation of the invention that is the subject matter of the dependent patent, where the both inventions concern the same subject matter, involves an important technical advance of considerable economic significance. In case of an invention concerning semi-conductor technology, a compulsory license may only be granted to counteract unreasonable anti-competitive practices.

3. Where the Patent Office finds that the patent is abused within the meaning of Article 68, it may decide that a compulsory license may be applied for and shall announce this in "Wiadomosci Urzedu Patentowego".

4. A compulsory license may be granted, if the applying party is able to prove that it has earlier made, in good faith, efforts to obtain a license. This requirement may be waived in the case of a compulsory license to be granted for the purpose of preventing or eliminating a state of national emergency or where it is announced that a compulsory license may be applied for.

5. Where it is announced that a compulsory license may be applied for, waiver of the requirement referred to in paragraph (4) shall not be applicable in respect of applications for the grant of a license submitted after the expiration of a period of one year counted from the date of that announcement.

6. The provision of paragraph (1)(iii) shall apply accordingly, where a plant breeder is not able to exercise his right to the protected plant variety or demands a cross-license to be granted to him by the patent holder.

Article 83

The compulsory license shall be non-exclusive.

Article 88

The provisions on the grant of a compulsory license in the case referred to in Article 82(1)(iii) shall apply accordingly to a utility model, whose exploitation would encroach upon the earlier patent.