New regulations for securing claims in intellectual property cases (effective July 1, 2023)

The article presents and discusses the provisions of collateral proceedings effective July 1, 2023, on securing claims in intellectual property cases. The reasons prompting the legislator to introduce special regulations are indicated, in particular the high risk of causing damage to the debtor that can be difficult to rectify, if the secured injunction claim turns out to be unfounded. The new regulations aim to mitigate the indicated risk via a directive ordering that the likelihood of invalidation of the exclusive right in other pending proceedings be taken into ac-count (Article 7301 § 11 of the Polish Code of Civil Procedure), imposing an information obligation on the claim-ant (Article 736 § 5 of the Polish Code of Civil Procedure), introducing an adversarial element into the securing proceedings (hearing of the debtor – Article 755 § 22 of the Polish Code of Civil Procedure), and depriving the protection of the claimant who filed the security application too late.

The author positively assesses the direction of most of the new regulations, while pointing out some interpreta-tive doubts regarding, amongst other things, their scope of application. At the same time, the legislator’s solution, ordering the dismissal of the application for securing claims if the application is filed more than six months after the date of knowledge of the infringement of the exclusive right, is criticized. This solution seems too rigid and may lead to unfair consequences for the applicant when their inaction is justified.

The article presents and discusses the provisions of collateral proceedings effective July 1, 2023, on securing claims in intellectual property cases. The reasons prompting the legislator to introduce special regulations are indicated, in particular the high risk of causing damage to the debtor that can be difficult to rectify, if the secured injunction claim turns out to be unfounded. The new regulations aim to mitigate the indicated risk via a directive ordering that the likelihood of invalidation of the exclusive right in other pending proceedings be taken into ac-count (Article 7301 § 11 of the Polish Code of Civil Procedure), imposing an information obligation on the claim-ant (Article 736 § 5 of the Polish Code of Civil Procedure), introducing an adversarial element into the securing proceedings (hearing of the debtor – Article 755 § 22 of the Polish Code of Civil Procedure), and depriving the protection of the claimant who filed the security application too late.

The author positively assesses the direction of most of the new regulations, while pointing out some interpreta-tive doubts regarding, amongst other things, their scope of application. At the same time, the legislator’s solution, ordering the dismissal of the application for securing claims if the application is filed more than six months after the date of knowledge of the infringement of the exclusive right, is criticized. This solution seems too rigid and may lead to unfair consequences for the applicant when their inaction is justified.