Prawo właściwe dla licencji patentowych w polskim prawie międzynarodowym prywatnym
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Date
1987
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Wydział Prawa i Administracji UAM
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Proper law for patent licences in Polish private international law
Abstract
The Polish Act on Private International Law does not contain provisions on
proper law for contracts for the transfer of technology. In the legal writings three
proposals to eliminate the existing axiological lacuna have been set forth. According
to the first view, if the parties did not choose the proper law, patent licences
should be governed by the law proper for the seat of the exporter of technology at
the moment of concluding the contract (Art. 27 § 1 sec. 1 of the Act of 1975 on
Private International Law). The above solution is based on „analogiae legis" and
assumes the similarity between patent licences and the contract of sale. According
to the second view, in the absence of the detailed statutory regulation of the
issue in question, Art. 29 of the Act, providing for the subsidiary connecting factor
of the place of contract (lex loci actus), should be applied. The third view is based
on the assumption that patent licences should be governed by analogous application
of Art. 27 § 1 sec. 4 of the Act stipulating that for contracts for acquisition
of copyrights the proper law is the law of the importer.
The author declares for the latter solution. His reasoning is based on the analysis
of the socio-economic function of licence contracts. Both in copyright lawas well as in patent law, the establishment of the right to exploit an invention
(the author's work) is ussually based on long-term contracts, the performance of
the acquirer (licensee) is of continuous character and must be fulfilled on the
licence territory. Moreover, the interest of the country which is the recipient of
technology prevails over the interest of the country which exports it. While
the latter is interested in obtaining proceeds from the licence fees, the former
sets on the licence its hopes of developing its own economy. Besides, the recipient
takes much greater risk of the transaction. The importation of technology is connected
with concurrent investments, the ecological risk, etc. Moreover, subjecting
the licence contract to the law in force on the licence territory is the only way
to prevent the conflict between „lex loci protections" and the law proper for the
contractual status. In case the licence encompasses several countries, the author
suggests the competence of the law of domicile of the licensee, provided that his
domicile is on the territory of the country being the center of the economical exploitation
of an invention.
The second part of the article is concerned with an attempt to distinguish
between the contractual status of the licence contract and the patent status (lex
loci protectionis). The author defends the opinion that the admissibility of granting
a licence and the dispositional consequences of a legal transaction come under
lex loci protectionis.
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 49, 1987, z. 2, s. 15-42