The Legal Position of Prior Users in Industrial Property Law

The aim of this research project is to develop a comprehensive characterisation of a specific concept found in industrial property law – the concept of a user (in particular, a prior user). The term "user" was first introduced in the Polish 1924 Act on the Protection of Inventions, Designs, and Trademarks. It refers to a person who, in good faith, developed a technical solution (invention) later filed by another person at the patent office to obtain a patent, where at the date of that filing, this person was already using that solution or had made appropriate preparations in this regard. In other words, it concerns a situation where the same technical solution is independently created by two different persons, one of whom decided to file it for a patent, while the prior user limited themselves to utilising this solution in their own business activities. In the described case, one of the aforementioned persons obtains a patent – an exclusive right entitling them to prohibit the use of a given invention by all third parties, and thus theoretically also by the aforementioned user, who independently developed such an invention and used it in their own enterprise. However, depriving the prior user of the ability to use an independently developed invention would be contrary to social co-existence principles and the foundations of the patent protection system. Consequently, it was decided that the user would be entitled to the right to continue free use of the invention to the previous extent. Both national and foreign legislation, however, are limited to very sparse legal regulations defining the situation of a prior user. As a result, legal literature and judicial pronouncements have formulated a number of differing views on the civil law nature of the user's right, how it arises, and how it should be exercised. The aim of the research project is therefore to formulate a comprehensive characterisation of this right, including an analysis of its individual aspects and constituent concepts. The results of the research project will apply not only to patents, but also to utility models, industrial designs, and trademarks (both Polish and Community marks), where the institution of a user also applies. The execution of the research project requires a thorough review and analysis of views expressed in jurisprudence and Polish legal scholarship, as well as in the jurisprudence and doctrine of selected foreign legal systems. To process information obtained from the collected material and prepare scientific findings, the method of critical analysis and logical reasoning will be applied. The method of comparative analysis will also be of significant importance, involving the comparison of solutions developed in foreign legal systems and assessing their usefulness for preparing the necessary scientific findings with respect to Polish law. The execution of the project requires scientific queries in specialised research centres (Polish and foreign). The results of the research project will have significant scientific value. The project will analyse a number of controversial and unresolved structural issues at the interface of classical civil law and industrial property law, which constitute the institution of the user. The project envisages preparing a comprehensive characterisation of this institution, which has not yet been the subject of a monographic study, primarily including an explanation of the construction of the user's right, the manner and conditions of its creation, as well as the principles of its exercise. Given the isolated, disparate judicial pronouncements on this issue and the scarce doctrinal indications, the results of the research project may also be of significant value both for judicial practice, allowing for the harmonisation of the approach of Polish courts, and for entrepreneurs, as these results will contribute to greater clarity and certainty of legal relations. This is particularly important in the context of the possible introduction of a system of so-called unitary patent protection, which may significantly increase the number of patents in force in Poland, in relation to which entrepreneurs may be prior users within the meaning of industrial property law. The research results will be disseminated in the form of a scientific monograph.