<div xmlns="http://www.w3.org/1999/xhtml">
We are <italic>pleased</italic> to <italic>present</italic> the <italic>latest issue</italic> of “Law &amp; Business”. One of the topics discussed in it is effective exploitation of innovative solutions and corresponding methods. Innovation is the main factor influencing the progressing changes in the economy, which today bases its development on global competition and global products. Intellectual property, in particular, is essential for technological innovation and increased competitiveness, as well as for the economic efficiency achieved by enterprises. Only entities capable of producing, acquiring, and effectively participating in the transfer of technical or organizational knowledge, and implementing changes of this nature in their environment, can maintain a strong market position. There are many ways to obtain new solutions, as well as models of intellectual property management and its effective use. The key to the development of innovation is undoubtedly the human mind and the effects of its creativity. Mastering the skills related to obtaining and managing the effects of innovative human activity is affected by many legal, technical, and economic factors. It should be emphasized, however, that the law and the manner of its enforcement – as an important instrument stimulating investment in R&amp;D – is the element of the innovative environment that is subject to cyclical assessments and changes forced by the economic environment.
The next issue of “Law &amp; Business” tries to focus on research and views related to these topics. These views are presented primarily through science, representing various scientific centers, but also practitioners, including those from the Scientific and Industrial Consortium “Economic Security of Poland,” and the following companies: Enea Operator Sp. z o.o., Lubelski Węgiel “Bogdanka” S.A., and PKN ORLEN S.A.
<sec id="j_law-2022-0005_s_001"><div>IP Protection Strategies - Key Company Decisions</div>
<sec id="j_law-2022-0005_s_001_s_001"><div>ENEA Operator Sp. z o.o.</div>
For many years, Enea Operator has recognized the unique value of the knowledge of its employees who have the potential to create new, or improve existing, solutions in the company. As such, the company's efforts focus on making employees see that their creativity is important and contributes a lot to the development of the company, making it more modern, and also leading to the modernization of the existing activities of the company.
The intellectual property developed within the company is protected, and the selection of this protection is individually assessed for each project. In practice, this means that the policy on the protection of intellectual property assumes not only the protection resulting from the acquisition of exclusive rights, but also the protection of undisclosed know-how.
Since 2020, the company has been in action with regulations for proceeding with rationalization projects and innovative projects in ENEA Operator Sp. z o.o. The regulations specify the procedures with the intellectual property goods developed in ENEA Operator Sp. z o.o., made by employees under the employment relationship, as well as made by external entities with the help of ENEA Operator Sp. z o.o. or made available for use. The scope of the regulations covers issues comprehensively, i.e. from the moment of submitting an idea or project, through acceptance by the Management Board of the company for implementation and determining the remuneration, taking into account the provisions of the current Compliance Program.
Rules for sharing acquired knowledge with other market participants and protection of intellectual property in Enea Operator sp. z o.o. have also been specified in the Compliance Program (Programme for Ensuring Non-Discriminatory Treatment of Users of the Distribution System of ENEA Operator Sp. z o.o., approved by the President of the Energy Regulatory Office). The provisions of this document show that the company conducts research and development activities on transparent terms: the choice of the type of technological solutions is to be tested and the selection of partners for their implementation is a sovereign decision of Enea Operator, and it should not be possible to conduct any research and development activities at the request of an integrated enterprise vertically, and the intellectual property developed by the company as a result of research and development works may not constitute the exclusive property of third parties or other entities of the vertically integrated enterprise within which the DSO operates.
In 2023, comprehensive training will be conducted for all employees of the company, covering legal issues related to intellectual property. This is another stage of developing awareness of the importance of intellectual property rights, which is part of the development of the company's potential. The aim of this training is also to increase awareness of the existence of a large innovative potential among employees, which is an added value for the company.
By undertaking and developing initiatives reported by employees, the company obtained two patents for inventions in 2022.
Przemysław Starzyński
Head of the Office of Innovative Initiatives at ENEA Operator Sp. z o.o.
</sec>
</sec>
<sec id="j_law-2022-0005_s_002"><div>PKN ORLEN S.A.</div>
Along with the growth of the economy and culture of innovation, it is pivotal for companies to protect their intellectual property (“IP”) as an important and valuable asset. Before decisions relating to protection are made, the solutions that could potentially be considered as IP must be recognised and well-identified within the organisation.
For this reason, enterprises should implement an innovation program for their personnel to develop innovative potential, build innovation culture, and, most importantly, adequately reward the most innovative employees.
The Polish act on industrial property law (“IPL”) being in force provides a solution aimed at protecting the so-called rationalisation projects. According to the IPL, any technical solution that is susceptible of utilisation and is not a patentable invention, a utility model, an industrial design, or a topography of integrated circuit may be recognised by an economic entity as a rationalisation project. The conditions of acceptance and remuneration for creating such projects should be laid down in regulations on rationalisation activities.
It is for the company to determine: (i) what kind of solutions made by whom may be recognised by that entity as rationalisation projects, (ii) the manner in which the rationalisation projects are to be handled, and (iii) the rules for remunerating the creators of the projects in question.
In the draft of the new Act on Industrial Property Law, which aims to replace the current Act of 30 June 2000, the basis of relevant provisions for the regulations on rationalisation activities is eliminated. The rationale for removing these provisions is the assumption that the company interested in rewarding such activities may do so even without a basis in the act of law.
This removal, however, has further-reaching consequences and may potentially lead to additional interpretational doubts regarding the right of the creator to be remunerated.
According to Article 22 of the IPL, unless the parties agreed otherwise, the creator of an invention, a utility model, or an industrial design shall be entitled to remuneration for the exploitation by an economic entity of his invention, utility model, or industrial design, where such an entity enjoys the right to exploit it or the right to a patent, the right of protection, or the right to registration under Article 11.3 and 5 or Article 21.
Articles 11 and 21 clearly indicate that the right to be remunerated refers only to the creators of a patentable invention, a utility model or an industrial design. This right does not cover creators of solutions not capable of protection, who may be remunerated according to the rules set by their employer in the regulation on rationalisation activities.
Deletion of the relevant provisions being a basis for the regulations on rationalisation activities will surely lead to far-reaching complications for employers, especially if the equivalent of the above cited Article 22 regarding the creator's claim for remuneration does not set a clear distinction between the creators of solutions capable of being protected (e.g. patentable solutions) and those not eligible for such protection.
At this point, it must be clearly stated that the right of the creator to be remunerated should not be dependent on the grant of protection (unless the relevant intellectual property office establishes that the statutory requirements for the grant of a patent/right of protection of a utility model/right in registration in industrial design have not been satisfied), as this could lead to a situation in which companies would not apply for protection merely in order to avoid the obligation to pay the remuneration.
This is obviously not the correct strategy, as it is in the foremost interest of an innovative company to adequately remunerate the creators of an innovative solution, bringing profit to the company. Whether to reward employees for developing solutions that are not capable of protection, yet have a certain value, should be left for the employer to decide.
What is definitely clear is that companies that understand the value of their IP should keep all the information regarding the innovative solutions created inside the company well-structured and organised. This is crucial, not only to enable companies to adequately reward their employees, but is all the more important if the company's strategy is to protect the innovative solutions as confidential knowledge. If the solution is not clearly identified as an asset worth protecting, that is the easiest way to lose it. The most practical solution to control the management of the solutions created by employees in the company is through corporate innovation programs.
Monika Kaczmarska
Manager/Intellectual Property Department
PKN ORLEN S.A.
</sec>
<sec id="j_law-2022-0005_s_003"><div>Companies’ experiences and expectations regarding regulations in the field of intellectual property rights - Lubelski Węgiel “Bogdanka” S.A.</div>
Lubelski Węgiel “Bogdanka” S.A. (the Company) can boast of its successful 40-year market presence. This operational timespan helped develop a coherent system of remunerating and protecting employee innovation, including the protection of exclusive rights, through the Polish Patent Office.
One of the many ways to grow a business is to look for new solutions, both by drawing on the experience of others, and by constant revision of one's own achievements. The Company has a long tradition of active support for employee innovation. Above all, innovations are sought amongst the operational activities of the facility, which allows optimal results for internal needs. Solution refinement and expansion takes place in an environment directly intended for consequent use. Specific conditions of the environment influence innovation. Thus, each in-house solution is dedicated to specific conditions, tailored to concrete needs, and is able to surpass on-the-shelf solutions available on the market.
A system in which employees are financially rewarded for innovative ideas leads to mutual advantages. If employees maintain an ongoing professional commitment and interest in outcomes, they can discover the potential for innovative solutions to problems – which is desirable and valuable to the employer. Thanks to additional remuneration, employees are better motivated to seek out-of-the-box solutions.
A number of arrangements are in place in the Company to regulate and simplify the filing and processing of innovations. These include Rules of Procedure for handling innovation projects, as well as services offered by the Research and Development Department, whose qualified staff supports innovators in the creation and implementation processes. The Company also maintains an ongoing relationship with patent attorneys for the purpose of securing protection of exclusive rights on a broader scale. The innovation division has developed over the years, and the mechanisms it proposes to the staff are geared towards implementing new solutions for operational practice. At the same time, the system in place is constantly under review so that the whole process is transparent and coherent, while at the same time being developer-friendly and supportive at every stage of project development.
Employee innovation can be of diverse qualities, ranging from new uncomplicated equipment that solves simple everyday work issues to extensive plans for construction work or mining machinery, developed in detail for specific underground conditions. In this context, another dimension of the Company's industrial property rights-related activity is worthy of a mention. Solutions that prove innovative, that involve inventiveness, or that exhibit foreseeable industrial applicability are filed with the Polish Patent Office as inventions and utility models. Over the years, relevant practices for securing the Company's industrial property rights have been developed. This, in particular, pertains to those solutions that are marketable and, in addition to the internal benefits, they provide income from solution sales or licensing.
We operate in a legal system where it is hard to imagine that intellectual property is left unprotected. It has long been recognised that intellectual property is just as important and valuable as material assets, and they can all be subject to turnover. From the employer's point of view, it is important to motivate and reward employees who devote extra time and effort to create new or improved solutions. This approach helps build teams that actively seek novel solutions, enriching the Company's potential. This is a win-win approach.
An amendment to the Industrial Property Law is expected in the near future. The applicable regulation that has been in force since 2000 will be replaced by a more complex regulatory act, which will significantly affect the scope and possibilities of protecting innovative output by companies of comparable size to Lubelski Węgiel “Bogdanka” S.A. Of considerable concern is a planned fundamental change with regard to utility model protection, under which this category will be exempt from substantive control by the Polish Patent Office. The arbitrariness of the content of patent registration, susceptibility to bad faith filings, and the time-consuming procedure for asserting one's rights will constitute a burden that will first and foremost affect entrepreneurs. Our concerns in this regard were expressed during the consultations on the content of the planned act. The outcome of the legislative process will certainly have an impact on the Company's decisions in the field of intellectual property protection.
Maria Hładyniuk-Gązwa
patent attorney
The statements resulting from the previous experience of the representatives of the three State Treasury companies listed above have one common denominator. Everyone points to the exceptional importance of employee creativity in the field of inventiveness and rationalizing innovation in the activities of these large enterprises.
The above-presented experiences and expectations regarding the use and protection of intellectual property in business demonstrate the complexity of problems related to IP application, thus opening a wide perspective on potential cooperation between science and business to develop optimal solutions for IP practice.
On behalf of the Editorial Board
Rev. Professor Włodzimierz Broński
Editor-in-Chief
</sec>
</div>

From the Editorial Board

Law and Business

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

From the Editorial Board

Article Category: Research Article

Published Online: Dec 31, 2022

Page range: 1 - 4

DOI: https://doi.org/10.2478/law-2022-0005

© 2023 Published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.