Wyd. specjalne/2011 - Regionalny Ośrodek Informacji Patentowej ...

Thus the document of the power of attorney shouldbe signed by :•z Applicant (applicants) – in case when the applicantis a natural person•z Persons entitled to representing the applicantaccording to the document defining the methodof representation, in case when the applicantis a legal person.Proceedings before the Patent OfficeIn order to obtain the right in registration is conductedin many stages.After a file has been made and an applicationnumber has been assigned, the application goesto the Receiving Department for formal examination,then it is transferred to the Trademark ExaminationDepartment, where the substantive decisionon the grant or refusal to grant the right in registrationis issued.In order to file an industrial design applicationit is necessary:1. Fill in the application form concerning the grantof a right in registration for an industrial design,which can be downloaded from the PatentOffice’s website or obtained at the InformationDesk of the Office.In order for the application to be given a date, iefor the application to be considered properly filedwith the Patent Office, it should contain:•z Application including at least indication of anapplicant, identification of the object of filingand a request for granting a right in registration;•z Illustration of the industrial design in question;•zdescription explaining the illustration of the in-dustrial design.If the Patent Office finds that an application lacksany of the abovementioned elements, it will issue aninvitation to provide the missing element. The dateof filing will be assigned on the day when the lastmissing document is received by the Patent Office.2. Make a single payment for the applicationdirectly to the bank account of the Patent Office.3. Send or deliver personally to the Patent Officeall the application documentation filed properly.The other elements of the documentation can becompleted at a later stage. However, it is unfavourablefor the applicant as it makes the registrationprocedure last longer.The application form concerning the rightin registration for an industrial design alsoincludes:1. Tax identification number (NIP), PESEL number,or REGON number, if the applicant has them.2. Name, surname and address of a representative,if the applicant acts through a representative3. Name of a state administration agency or stateorganizational entity which has no legal personality,if the filing is made through that agency or entityon behalf of the Treasury4. Request for granting the right in registration5. Name, surname, and address of the authorof the industrial design6. Indication of the grounds for obtaining the rightin registration, if the applicant is not the authorof the industrial design7. List of enclosed documents8. Signature of the applicant or representative,if the applicant acts through a representativeBesides, the application form should alsocontain:1. Declaration of the applicant that he/she wishesto enjoy the previous priority, if they apply for it,which indicates at least the date and the countrywhere the application was filed abroad, or the name,place and country of the exhibition and the dateof presenting the design at the exhibition2. Indicating a person entitled to receive correspondence,if there are several applicants and theydo not act through one representative.The most common mistakes that appearin the application documentation at the examinationas to form and substance level are:1. incorrect identification numbers:•z if the right is to be granted to natural person –NIP and PESEL numbers are required•z if the right is to be granted to legal person –NIP and REGON numbers are required•zif the natural person performs business activity– NIP, PESEL or REGON are required.2. No indication as to the authorThe indication of the applicant only is insufficient.Even if the applicant and the author are the sameperson, the applicant and the author should be indicatedseparately under the proper item in the applicationform.3. Wrong understanding of the authorThe author can only be a natural person, for exampleJan Kowalski. A common mistake is indicatinga legal person as the author.4. No mentioning of the address of the authorIt is required to mention the full address of the author,i.e. the name, surname, name and numberof the street, post-code and town.5. Legal grounds.Defining the legal grounds for the rightin registration for an industrial designis also a difficulty for applicants.The legal grounds gives us the informationas to the way the applicant obtained a rightto the right in registration from the author. Accordingto the rule, the author is entitled to the rightin registration. However, it is possible that the authortransfers, in the way defined in legal provisions,their rights to the design to another subject,such as legal person. One needs to have in mindthat the author, in spite of transferring their rightto the design, still remains the author, and so he/she should be mentioned under the proper headingin the application. When defining the legal groundsfor industrial design application, the following provisionsof the Industrial Property Law (IPL) should beapplied: Art.11, Art.12, Art. 20, and Art. 21 dependingon the facts of the case.Each of the following provisions should beapplied depending on the facts of the case.Art.11, item 1 (IPL)In case when the author is also the applicantArt. 11, item 2 (IPL)In case when there are several co-authors whoalso are applicantsArt. 11, item 3 (IPL)In case when the right to the right in registrationbelongs to the employer or an ordering party whoare connected with the author through employmentor through other contract (commission, contractto perform a specified task)Art. 11, item 4 (IPL)In case when two entrepreneurs concluded anagreement defining who is entitled to the right to fileapplication.Example: in a work contract concerning creatinga design concluded between company X and,for example, a university, it can be stipulated that,the right of registration of industrial design whichis the result of the fulfilment of the contract willbelong to the ordering party, that is, to company X.Art. 11, item 5 (IPL)This is the case of the so-called ‘agreement on providingassistance’;In case when the author created the design withthe assistance of entrepreneur in the frameworkof an agreement in which the parties agreed thatthe right to the design belongs in whole or in partto the entrepreneur.Art. 12 (IPL)The right to obtain the right in registration may beassigned or be a subject to succession; a contractfor the transfer of the abovementioned right requireswritten form, on pain of invalidity.Art. 20 (IPL)The author of industrial design, entitled to the rightin registration, may transfer that right free of chargeWydanie specjalne KWARTALNIK URZĘDU PATENTOWEGO RP • 63