Poland
Answer ... Polish civil procedure rests on the rule of concentration of evidence, which means that all evidence and requests of the claim should be presented at the outset of the litigation.
If a pre-trial hearing has been scheduled, the parties must present all requests and evidence at that hearing at the latest. If no pre-trial hearing is scheduled, they may present them up until the end of the hearing within the main proceedings (see also question 11.2).
In practice, however, the majority of patent disputes are between entrepreneurs and special rules governing commercial proceedings thus apply.
According to Article 458-5 of the Code of Civil Procedure (CPC), the statement of claim and the statement of defence should contain all evidence and arguments. No evidence or argument submitted later will be taken into account unless the relevant party proves that:
- it could not submit the evidence or raise the arguments at that time; or
- it only discovered at a later date that it was necessary to submit the evidence or raise the arguments.
The evidence and arguments must be submitted within two weeks of:
- the date on which it became possible to submit them; or
- the date on which the need to submit them arose.
From a formal point of view, the request for evidence must meet the requirements indicated in Article 235-1 of the CPC – that is:
- the evidence must be specified so as to allow the taking of evidence; and
- the facts to be proved should be specified.
The court may disregard evidence, among other things, if it:
- prevents the taking of evidence;
- is not useful for the clarification of the case; or
- concerns undisputed issues.
A patent holder may also lodge the following requests in order to obtain evidence:
- preservation of the evidence;
- disclosure or issuance of the evidence; and
- a request for information.
Poland
Answer ... The following types of evidence are allowed:
- documents;
- testimony;
- expert opinions;
- inspections; and
- questioning of the parties.
In addition, the court may admit other evidence to confirm facts relevant to the decision if it is appropriate to that end. The catalogue of evidence to which the parties may refer is not exhaustive.
Experts are appointed to give their opinions on matters which require special knowledge (ie, technical or financial issues). The court will assess whether the requirement to possess special knowledge has been met in the light of the circumstances of each case. As a general rule, however, a failure to appoint an expert where issues requiring special knowledge must be clarified may be regarded as a breach of the rules of procedure. There is a presumption of irreplaceability of expert evidence – that is, when special knowledge is required in a case, it cannot be replaced by other evidence, such as witness evidence. If an expert opinion is prepared on the request of the court, it has the status of expert evidence. Expert evidence must be presented either in writing or orally at the hearing.
So-called ‘private expert’ evidence, which is sometimes used in practice, is treated as part of the statements of the party and therefore is not binding on the court. Private experts:
- do not enjoy special advisory status; and
- in most cases, are not requested to provide an explanation in court.
Poland
Answer ... The relevance of facts as an object of proof should be assessed against:
- the facts invoked in the statement of claim, on which the plaintiff bases its claim; and
- their legal significance.
Relevant facts are those that produce legal effects, which can be a source of rights and obligations; therefore, only facts that are important from the point of view of the substantive law that fall within the hypothesis of a legal norm that can be applied in the case are relevant to the outcome of the lawsuit.
The court will assess the plausibility and strength of the evidence at its own discretion, based on an overall consideration of the material collected. This standard is called the ‘principle of free evaluation of evidence’. A violation of this principle occurs where it is demonstrated that the basic rules of assessment of the plausibility and/or strength of individual pieces of evidence have not been observed. These rules include:
- the rules of logical thinking;
- the principles of life experience; and
- the correct correlation of fact.
The concept of free assessment of evidence is often confused with the concept of an ‘arbitrary’ assessment of evidence, which generally constitutes a breach of the procedural rules.
Poland
Answer ... According to general rules, the burden of proof rests with the parties. However, the responsibility for proving facts that are material to the outcome of the case rests with the party that derives the legal consequences from those facts. For example, the scope of the claim (ie, patent infringement and/or the grounds for injunction or monetary relief) must be proved by the claimant; while the defendant must prove any circumstances that mitigate the claim (eg, a patent infringement defence or the statute of limitations).