Answer ... Antitrust in Poland is regulated by the Act on Competition and Consumer Protection of 16 February 2007. This sets out the principles and procedures that apply to combat anti-competitive practices, practices that infringe collective consumer interests, inclusion of abusive clauses in standard agreements and anti-competitive concentrations of undertakings and their associations, where such practices have or may have effects in Poland. The act applies to contracts – in particular, licences – regarding industrial property, as well as to non-contractual practices concerning the exercise of industrial property rights in relation to which measures have been taken to prevent disclosure, where such contracts result in an unjustifiable restriction of the parties’ freedom to conduct business activities or in a significant restriction of competition on the market. The Office of Competition and Consumer Protection and its president are responsible for supervising compliance with this law and the appropriate EU regulations as adopted under Polish law.
In accordance with the Act on Industrial Property, an abuse of market dominance by the patent holder that contravenes the spirit of antitrust law may be remedied by the grant of a compulsory licence. A compulsory licence (an authorisation to exploit the patented invention of another person) may be granted by the Polish Patent Office if, among other things, it has been established that:
- the patent has been abused – in particular, by preventing exploitation of the invention by a third party where such exploitation is necessary necessary to meet home market demands and is dictated by public interest considerations, and if consumers are being supplied with the product in insufficient quantities, of inadequate quality or at excessively high prices; or
- a patent holder enjoying a priority right from an earlier application (the earlier patent) prevents, by refusing to conclude a licence agreement, home market demands from being met through exploitation of the patented invention (the dependent patent), whose exploitation would encroach upon the earlier patent.