Publication date: December 02, 2024
1. Introduction
German economist Klaus Schwab described the present as the era of the fourth industrial revolution during the World Economic Forum in Davos in 2016. This concept dates back to the research conducted by the working group led by Siegfried Dais , the report of which was presented to the government of the Federal Republic of Germany in 2013. It was in this report that the concept of “Industry 4.0” (German: Industrie 4.0) was first created.
Industry 4.0 is supposedly the effect of the fourth industrial revolution, the pillars of which are the automation and computerization of industry and the implementation of modern production methods. All this is to lead to the creation of cyber-physical production systems – and therefore systems that function both in the real world (through the work and devices of industrial machines) and the virtual world (through the control of production processes by IT systems, including AI and the coordination of devices and machines in the Internet of Things or in the computing cloud). Importantly, Industry 4.0 is not only an industry of modern technologies in the sense that it produces advanced products – it is an industry that uses modern technologies in the entire production process, regardless of whether it produces technologically advanced products such as smartphones or relatively simple to produce items such as hand tools.
Different countries around the world have different approaches to the fourth industrial revolution and the development prospects associated with it. South Korea is emerging as the leader in this race, with the Presidential Committee for the Fourth Industrial Revolution, which has been operating for years as a team consisting of representatives of state authorities and independent experts. This committee is actively implementing legislative changes and policies regarding artificial intelligence in the Republic of Korea. The Ministry of Science and Telecommunications and the Korean Intellectual Property Office are equally active in the same area. The latter of these institutions has developed a methodology for recognizing specific technologies as technologies of the fourth industrial revolution[1]. These are:
– Artificial Intelligence (AI),
– Intelligent robots,
– Autonomous vehicles,
– Big data,
– Internet of Things,
– Digital healthcare,
– Biomarkers,
– 3D printing.
In the Republic of Korea, each of these technologies has a different standard of protection for these technologies. Some of them are patentable. Others are not. Still others, despite not being patentable, can be protected as a trade secret.
As you can see, the protection of industrial property is key to implementing Industry 4.0. However, not every legal order is adapted to the realities of the fourth industrial revolution. How do Polish regulations protect technologies of the fourth industrial revolution? What technologies of Industry 4.0 can be patented in Poland? Is Polish law adapted to the realities of the fourth industrial era? This article will aim to address these questions.
2. Protection of industrial property of Industry 4.0 technologies in Poland
Before discussing the legal protection of specific Industry 4.0 technologies, it is necessary to describe the general legal framework for the protection of industrial property in Poland. It is set out in the Act of 30 June 2000 – Industrial Property Law (uniform text: Journal of Laws of 2023, item 1170; hereinafter: the Industrial Property Law Act). Based on the provisions of this Act, the Patent Office of the Republic of Poland issues patents for inventions and protection rights for utility models and rights from the registration of an industrial design. In the context of the discussed problem, inventions and patents are key, hence we will mainly refer to this issue.
According to Article 24 of the Industrial Property Law, the following are patentable in Poland: “inventions that are new, involve an inventive step and are suitable for industrial application“. It is worth spending a moment on this definition, as it is key to our considerations. An invention is considered new if it is not part of the state of the art, which results directly from Article 25 section 1 of the Industrial Property Law. The state of the art described in Article 25 sections 2 and 3 of the Industrial Property Law consists of inventions made public through written or oral descriptions, use, exhibition or disclosure in another manner, or inventions that have remained: “not made available to the public, provided that they are announced in the manner specified in the Act”. In turn, the inventive step defined in Article 26 of the Industrial Property Law means that a given invention does not result from the state of the art in an obvious manner for a person skilled in the art, and therefore only in relation to disseminated inventions within the meaning of Article 25 section 2 of the Industrial Property Law. In turn, the possibility of industrial use of an invention is defined in Art. 27 of the Industrial Property Law as a state in which: “according to the invention, a product can be obtained or a method can be used, in a technical sense, in any industrial activity, not excluding agriculture”. Therefore, an invention, in order to be patentable, must have an economic application in industry or agriculture. Importantly, in the light of the views of doctrine and case law, it is not necessary for the invention to be useful in the activities performed with its help[2]– to patent an invention, it is enough to prove its economic application in industry or agriculture. The practicality and usefulness of the invention will determine the economic realities after patenting.
In the context of the definition of an invention, one must also bear in mind the limitations contained in Articles 28 and 29 of the Industrial Property Law, which exclude the possibility of recognizing certain technical and technological solutions as inventions. These are:
– discoveries, scientific theories and mathematical methods,
– products of a purely aesthetic nature (e.g. a mould for casting a sculpture),
– schemes, rules and methods for conducting thought processes, playing games or running a business,
– products or methods whose possibility of use cannot be demonstrated or whose use will not bring the result expected by the applicant – in the light of generally accepted and recognized principles of science,
– computer programs à, where the doctrine considers that a computer program may be patentable if it has a technical effect, and therefore serves to control a device that makes changes in the real world (e.g. a computer program coordinating the operation of production line devices),
– presentation of information,
– plant varieties or animal breeds and purely biological methods of breeding plants or animals, as well as products obtained by such methods, àwhere purely biological methods within the meaning of Article 29, Section 2 of the Industrial Property Law Act are deemed to be purely natural methods, including crossbreeding or selection,
– methods of treating humans and animals by surgical or therapeutic methods and diagnostic methods used on humans or animals.
In addition, it is worth noting the exclusion from art. 29 sec. 1 item 1) of the Industrial Property Law, in light of which it is not possible to legally patent an invention, the use of which would be contrary to public order or good customs. Importantly, this provision contains an important norm that: “the use of an invention shall not be considered contrary to public order solely because it is prohibited by law” – after all, the legislator assumed that the law may change, and inventions often precede existing legislation. The norm from art. 29 sec. 1 item 1) of the Industrial Property Law therefore refers to inventions, the use of which would be contrary to social norms and could potentially cause catastrophic consequences in society.
However, it should be borne in mind that there are certain technical and technological solutions that are not subject to patent protection as an invention, but may be subject to protection as a trade secret within the meaning of art. 11 sec. 2 of the Act of 16 April 1993 on Combating Unfair Competition (uniform text: Journal of Laws of 2022, item 1233; hereinafter referred to as the Act on Combating Unfair Competition). In the light of the cited provision, a trade secret is: “technical, technological, organizational information of an enterprise or other information of economic value, which as a whole or in a specific combination and set of their elements is not generally known to persons usually dealing with this type of information or is not easily accessible to such persons, provided that the person authorized to use or dispose of the information has taken, with due diligence, actions to keep it confidential”. Therefore, under Polish law, analogously to South Korean law, certain technical or technological solutions that cannot be recognized as an invention are subject to protection as a trade secret. Additionally, with respect to certain technologies, especially IT technologies, the legislator has provided criminal law protection.
Based on this conceptual framework, it is possible to discuss detailed issues related to various Industry 4.0 technologies.
2.1. Artificial Intelligence
Artificial intelligence is clearly at the center of the public debate around new technologies, as exemplified by the recent awarding of the Nobel Prize in Physics to John J. Hopfield and Geoffrey E. Hinton for their research on the neural networks that underlie many artificial intelligence systems. Artificial intelligence in the context of Industry 4.0 can be discussed both in the context of the artificial intelligence systems themselves and in the context of their products.
As far as artificial intelligence systems are concerned, they should be treated as computer programs. In accordance with Article 28, Section 1, Item 5) of the Industrial Property Law, these are not subject to patent protection. It is recognized, however, that this rule does not apply to computer programs that have a technical effect, e.g. by constituting software for devices operating in reality as industrial devices. This view has been developed by the practice of the Patent Office of the Republic of Poland, case law and legal doctrine[3]. Recent guidelines of the President of the Patent Office of the Republic of Poland indicate that a computer program may be patentable only if it has a further technical effect[4]. Therefore, artificial intelligence systems may be patentable under Polish law, provided they constitute control systems for devices that make changes in reality, which will be discussed in more detail in the context of intelligent robots and autonomous vehicles.
However, while a computer program that is an artificial intelligence system may be patentable, a mathematical model that is the basis of such a system may not. This is related to the content of art. 28 sec. 1 item 1) of the Industrial Property Law. This position is included in the guidelines of the President of the Patent Office of the Republic of Poland[5].
When it comes to the products of artificial intelligence, i.e. the texts, images or sounds generated by it, they cannot be attributed the character of a work within the meaning of the Act of 4 February 1994 on copyright and related rights (uniform text: Journal of Laws of 2022, item 2509, as amended ). As indicated by the doctrine: “Products generated by computer applications that imitate the human creation process (so-called artificial intelligence) do not constitute a work. In order to recognize a specific result as a work, a human must have a decisive influence on its creation (by giving it features that make it creative and individual in character)”[6].
It is worth mentioning that currently, both at the level of Poland and the European Union, intensive legislative work is being carried out on artificial intelligence. Therefore, people interested in the development of initiatives in the field of Industry 4.0 should follow their progress to be ready for new regulations.
2.2. Intelligent robots
An intelligent robot is a specific type of robot whose software is based on artificial intelligence and machine learning. Thanks to the use of these technologies, it is able to operate not only independently, but also autonomously – and therefore independently making decisions about actions based on machine-learned artificial intelligence allowing them to assess the situation. Importantly, artificial intelligence makes the intelligent robot able to acquire new information through observation and adapt to new situations. The development of intelligent robots is undoubtedly a future direction. Hence, such robots are considered one of the pillars of Industry 4.0.
While there has not yet been a case of patenting an intelligent robot in Poland, its patenting seems possible based on the provisions of the Industrial Property Law. The mechanical construction of the robot itself fits into the statutory definition of an invention. As for artificial intelligence, as mentioned earlier, a computer program in the light of case law, the interpretative line of the Patent Office of the Republic of Poland and doctrine can be patented only when it is an element of a device that actively influences the surrounding reality, e.g. as a machine control system. The software of an intelligent robot based on artificial intelligence and machine learning in the light of these principles can therefore be treated as a computer program that can be patented, because it controls an intelligent robot.
2.3. Autonomous vehicles
Autonomous vehicles are vehicles that are controlled by specially prepared software. In the context of the technologies we know today, they are easiest to compare to drones, where instead of remote control by humans, we have autonomous software. While quite often in public debate and in pop culture products such as the computer game Cyberpunk 2077, autonomous vehicles are presented solely as autonomous cars that independently transport their passengers, the concept of an autonomous vehicle is not limited to a car. One could just as well talk about an autonomous ship or ferry, a drone or even a small self-propelled courier cart moving along the sidewalk.
In the case of autonomous vehicles, it can be safely assumed that, in terms of intellectual property protection, it will be possible to rely on the same rules as those mentioned above in the context of intelligent robots. The design of an autonomous vehicle and its software may therefore potentially be subject to patenting. However, unlike intelligent robots, the introduction of autonomous vehicles to the market will require adapting legislation to the presence of autonomous vehicles in road, water, air and pedestrian traffic. However, the lack of appropriate legislation cannot block the patenting of an invention, which results from art. 29 sec. 1 item 1) of the Industrial Property Law.
2.4. Internet of Things
The Internet of Things is a system that connects different devices using the software of these devices. The Internet of Things system allows you to coordinate different devices so that they work in harmony with each other. This translates into the possibility of creating comprehensive solutions such as smart homes, smart industrial equipment complexes or smart cities.
Taking into account the principles of Polish law, it should be recognized that the Internet of Things is patentable. While it constitutes a computer program, it serves to coordinate devices operating in the real world, and therefore escapes the prohibition established in art. 28 sec. 1 item 5) of the Industrial Property Law, because it has a technical effect.
2.5. Big Data
Big Data is a technological solution based on large data sets, the analysis of which leads to extremely accurate results, but requires the use of highly advanced computer software. It is often used in business for the purposes of analyzing the market and its trends, including consumer needs and expectations, as well as forecasting various economic factors based on historical data. Big Data consists of two separate technologies working in synergy: databases and analytical computer software. In order to discuss the legal protection of Big Data, both of these issues should be addressed separately.
Databases in Polish law are not subject to patent protection per se. However, this does not mean that there is no protection for databases in Polish law – they are subject to sui generis protection based on the provisions of the Act of 27 July 2001 on the protection of databases (uniform text: Journal of Laws of 2021, item 386, as amended; hereinafter referred to as the Act on the Protection of Databases). Under this legal protection, the entitled person is the producer of the database, who, in accordance with art. 2 sec. 1 item 4) of the Act on the Protection of Databases is: “a natural person, legal person or an organizational unit without legal personality, which bears the risk of investment outlays when creating a database”. Legal protection of the database in accordance with art. 10 of the Act on the Protection of Databases lasts for 15 years counted from:
– creating a database àif it has not been made public,
– making the database public àif it has been made public.
Moreover, when it comes to database updates, in light of Article 10, Section 3 of the Database Protection Act, the protection period for an updated version of a database is counted from the moment of the update. Importantly, such an update must meet the statutory requirements – it must be (paraphrasing the Act): “a significant change in the content of the database, in terms of quality or quantity, including supplementing, changing or deleting its part, having the characteristics of a new significant effort, in terms of quality or quantity”. It is therefore clear from the provision that it must be a significant update, and not a routine action concerning a small amount of data with no significance for the overall functioning of the database.
However, it is necessary to take into account Article 13 of the Act on the Protection of Databases, according to which individual data entered into a database that are its elements may be subject to separate legal protection, including patent protection.
It is also worth mentioning the criminal law protection of databases. The Act of 6 June 1997, the Penal Code (Journal of Laws of 2024, item 17, as amended; hereinafter referred to as the Penal Code) provides for a number of types of crimes that may concern databases. These include:
– unlawfully obtaining information under Article 267 of the Penal Code – which may also apply to information contained in an IT system that is a database,
– destruction of computer data as provided for in Article 268a of the Penal Code together with the qualified type of Article 269 of the Penal Code concerning such actions in relation to computer data: “of particular importance for national defence, communication security, functioning of the government administration, another state body or state institution or local government” – may also concern information contained in an IT system that is a database,
– developing hacking programs, computer passwords, access codes or other data enabling unauthorized access to information stored in the computer system under Art. 269b of the Penal Code – such activities may serve as a hacker attack on the database.
All of the types of crimes listed are misdemeanors and are intentional, which means that during criminal proceedings it will be necessary to prove the accused’s direct or potential intent. Importantly, these are crimes prosecuted at the public prosecutor’s office, so the owner of the database or another person injured by such an act should go directly to the prosecutor’s office to file a report of a possible crime.
Therefore, databases, including Big Data databases, are protected by the provisions of both the Database Protection Act and the Penal Code.
When it comes to computer programs used to analyze Big Data, the issue becomes significantly more complicated. Article 28, section 1, item 5) of the Industrial Property Law Act makes it impossible to patent computer programs themselves, and Big Data analysis software does not constitute software that controls devices operating in the real world. However, it is possible to subject such computer programs to legal protection as a trade secret within the meaning of Article 11, section 2 of the Act on Combating Unfair Competition. It is indicated in the doctrine that in relation to a computer program, a trade secret may be: “the source code of the program containing the principles of operation of the program and indicating its structure, information on interfaces, as well as the programmer’s know-how“[7].
The legal protection of computer programs used to analyze Big Data is also undeniable, based on Article 269a of the Penal Code concerning disruption of the computer system. Similarly to the cited criminal provisions concerning the issue of databases and information contained therein, this is an intentional offense, prosecuted at the public prosecutor’s office. Therefore, people affected by such a crime are advised to take similar actions as in relation to those crimes – filing a notification of the possibility of committing a crime to the prosecutor’s office, which will have to prove the intentional commission of the alleged act during the proceedings.
Therefore, the legal protection of Big Data analysis programs is different from the protection of the Big Data databases themselves.
2.6. Digital Healthcare
Digital healthcare is based on a number of different solutions. In the world of medicine, we talk about both digital prevention and digital treatment of existing diseases. Most often, we are talking about computer programs and various types of devices that are able to monitor a person’s health (especially devices worn on the body).
In the context of patenting such solutions, it should be noted that patenting digital healthcare devices and their software will not be controversial. The situation is different with computer programs themselves, which do not constitute software dedicated to a digital healthcare device, e.g. applications for a phone. In such a case, it should be considered that such computer programs are not patentable under the principle of art. 28 sec. 1 item 5) of the Industrial Property Law. Nevertheless, they may be subject to protection as a trade secret, analogously to what is described in the section on Big Data. In turn, as regards databases used within digital healthcare computer programs, the provisions of intellectual property law and criminal law regarding the protection of databases, also cited in the section on Big Data, will apply.
Importantly, it should be emphasized that it is not legal to patent a method of treating humans and animals by surgical or therapeutic methods or a method of diagnostics used on humans or animals, which results from art. 29 sec. 1 item 3) of the Industrial Property Law. However, patenting devices used in surgery, therapy or diagnostics is not prohibited, which is confirmed by the guidelines of the President of the Patent Office of the Republic of Poland[8].
2.7. Biomarkers
Biomarkers are biological factors (e.g. substances) that allow for the examination of the health status of the person being examined and the influence of medicinal substances. They allow for the modernisation of diagnostic and treatment methods, including increased detection of diseases and disorders and reducing the risk of ineffective treatment. Biomarkers themselves are patentable, because they do not have the nature of diagnostics used on humans or animals in accordance with art. 29 sec. 1 item 3) of the Industrial Property Law. Each individual biomarker is, after all, a means used during diagnostics, and the method of diagnostics is, for example, the method of using biomarkers .
However, what is important in the context of biomarkers, when patenting them, attention should be paid to the requirement of novelty provided for in Article 25 of the Industrial Property Law. If a given biomarker was already known to science, but its new use in detecting a disease or disorder or the effect of medicinal substances was discovered, this will not allow for the patenting of this new use. This is confirmed by the guidelines of the President of the Patent Office of the Republic of Poland[9].
2.8. 3D printing
3D printing is considered a breakthrough technology. It allows for production using plastics based on computer models uploaded to a 3D printer. While a 3D printer is most often associated with the production of small items, ambitious construction investments using 3D printing have been implemented for some time now.
As for the 3D printer, it clearly meets the definition of an invention within the meaning of the Industrial Property Law. The 3D printer software should be treated similarly, as it is not a computer program “in itself”, but a system controlling a device operating in reality.
As for the techniques of using a 3D printer, e.g. the material used for printing or the calibration method that gives the right results, it is difficult to talk about them in the context of patenting. However, it should be recognized that it may be a trade secret under Article 11, Section 2 of the Act on Combating Unfair Competition, unless of course it is common knowledge. Techniques of using a device that are common knowledge cannot be recognized as a trade secret.
In the context of 3D printing, it is also worth mentioning the legal protection of 3D models used for printing. If they meet the definition of a work provided for in the Act of 4 February 1994 on copyright and related rights (uniform text: Journal of Laws of 2022, item 2509, as amended ), they are entitled to protection under copyright law. In each case, however, it should be examined whether a given 3D model can be considered a work[10]. Therefore, copyright aspects should also be taken into account in the trade of 3D models used for 3D printing.
3. Summary
Industry 4.0 for sceptics could seem like an abstract concept without any translation into economic reality, which resembles futurology more than a real economic theory. However, it is different, and the theory of Industry 4.0 is becoming a reality before our eyes, as shown by the actions of the state administration of the Republic of Korea. While the Polish authorities have not undertaken such systematic actions to promote Industry 4.0, Polish law in its current form allows for conducting this type of innovative economic activity. A significant part of Industry 4.0 technologies can potentially be patented in Poland. Moreover, even in the absence of the possibility of patenting, it is possible to legally protect these technologies as a trade secret within the meaning of the Act on Combating Unfair Competition, to apply legal protection sui generis for databases or combating infringements based on criminal law.
Bibliography:
a) legal acts:
– Act of 6 June 1997, the Penal Code (Journal of Laws of 2024, item 17, as amended).
– Act of 27 July 2001 on the protection of databases (uniform text: Journal of Laws of 2021, item 386, as amended).
– Act of 4 February 1994 on copyright and related rights (uniform text: Journal of Laws of 2022, item 2509, as amended).
– Act of 16 April 1993 on combating unfair competition (uniform text: Journal of Laws of 2022, item 1233).
– Act of 30 June 2000 – Industrial Property Law (uniform text: Journal of Laws of 2023, item 1170).
b) literature:
– Demendecki, J. Sitko, J. Szczotka, G. Tylec, A. Niewęgłowski, Industrial Property Law. Commentary, Warsaw 2015.
– Hyeong Joo Lim, Ae Jin Noh, Dave Boncheun Koo, AI and Patents: Key Considerations (South Korea), Thomson Reuters Practical Law Practice Note.
– Niewęgłowski A., Copyright. Commentary, Warsaw 2021.
– General guidelines of the President of the Patent Office of the Republic of Poland on inventions and utility models, Patent Office News, No. 2/2023, Warsaw 2023.
– Stolarski K., Intellectual property and BIM – copyright, “Materiały budowlane”, no. 553 (9/2018), Warsaw 2018, pp. 96-97.
– Sztobryn K., 3. Computer program as a protected trade secret [in:] Protection of computer programs in intellectual property law in the European Union, Warsaw 2015.
c) press materials:
– Patenting computer programs, authors: Adam Najdul and Bartosz Fert, press material of the Polish Industrial Development Agency of December 14, 2023, https://www.parp.gov.pl/component/content/article/85768:patentowanie-programow-komputerowych (access: 02/12/2024).
[1]Hyeong Joo Lim, Ae Jin Noh, Dave Boncheun Koo, AI and Patents: Key Considerations (South Korea), Thomson Reuters Practical Law Practice Note, pp. 2-3.
[2]A. Niewęgłowski [in:] T. Demendecki, J. Sitko, J. Szczotka, G. Tylec, A. Niewęgłowski, Industrial Property Law. Commentary, Warsaw 2015, article 27.
[3] Patenting computer programs , authors: Adam Najdul and Bartosz Fert, press material of the Polish Industrial Development Agency of December 14, 2023, https://www.parp.gov.pl/component/content/article/85768:patentowanie-programow-komputerowych (access: 02/12/2024).
[4] General guidelines of the President of the Patent Office of the Republic of Poland on inventions and utility models, Patent Office News, No. 2/2023, Warsaw 2023, pp. 75-77.
[5] Ibidem, pp. 71-72.
[6]A. Niewęgłowski [in:] Copyright. Commentary, Warsaw 2021, art. 1, p. 37.
[7]K. Sztobryn, 3. Computer program as a protected trade secret [in:] Protection of computer programs in intellectual property law in the European Union, Warsaw 2015, pp. 256-257.
[8] General guidelines of the President of the Patent Office of the Republic of Poland on inventions and utility models, Patent Office News, No. 2/2023, Warsaw 2023, p. 92.
[9] Ibidem , p. 95.
[10]Stolarski K., Intellectual property and BIM – copyright, “Materiały budowlane”, no. 553 (9/2018), Warsaw 2018, p. 97.