Who's the boss? Representatives in IP cases
According to the Polish Industrial Property Law, a patent attorney acting as a representative shall be authorised to appoint a substitute. In this event, the same relationship exists between the party and the attorney substitute as between the party and the patent attorney, and the existing powers of attorney are maintained. This means that the party has two equivalent proxies.
On the basis of the Administrative Procedure Code, where a party has decided to act with the help of a patent attorney as its representative, all documents are delivered to the representative, and not the party. Because the substitute power of attorney can only be granted to patent attorneys, and the Industrial Property Law only permits one proxy for each legal action.
If a substitute is appointed, all correspondence will be delivered to one person—either the attorney or their substitute. The decision regarding who receives correspondence will be taken following an assessment of attorney documents and attorney substitution. If the patent attorney does not indicate an address for the delivery of documents, the Polish Patent Office will instead deliver all documents to the attorney substitute.
Document filing
Under the Administrative Procedure Code, a party may file a copy of a document if it complies with the original and its originality has been authenticated by a patent attorney acting as a representative.
“According to the Polish Industrial Property Law, a patent attorney acting as a representative shall be authorised to appoint a substitute. In this event, the same relationship exists between the party and the attorney substitute as between the party and the patent attorney, and the existing powers of attorney are maintained. This means that the party has two equivalent proxies.”
According to the recently amended Act on the Authentication of Documents, such documents should include: the signature of a patent attorney, the date and the place of its preparation, and also, on request, the time of the transaction. If the document contains special features (annotations, corrections or damages), a patent attorney should acknowledge them in the authentication. The authentication included in the copy of the document is an official document. Under special circumstances, the Patent Office may request that a party submits the original documents. In a May 17, 2010 judgment, the Supreme Administrative Court held that if a legal representative refuses to prepare and file an appeal because they believe it would be unfounded, as long as they inform the party with a full opinion, this must be regarded as the represented party’s resignation from the cassation complaint. The party has no standing, because an appeal must be made by a legal representative only when the alternative is the dismissal of the action.
Only those mentioned under the Law on Proceedings before Administrative Courts are entitled to file an appeal: advocates and legal advisors. In addition, the cassation complaint may also be filed by a tax consultant regarding tax obligations and by a patent attorney in industrial property cases. This requirement was introduced in order to ensure a cassation complaint meets adequate levels in terms of form and content, and to give a party certainty that its complaint would be fully considered.
Knowledge of the regulations and enforcement procedures that are applicable to judicial proceedings can be expected and required from a professional representative. The refusal to prepare and file a cassation complaint is not subject to review by the administrative courts. However, in case of doubt, a party may apply to a competent authority to review the merits of such action.
Tomasz Rychlicki is an attorney at Patpol in Warsaw. He can be contacted at: tomasz.rychlicki@patpol.com.pl
