États-Unis d'Amérique
Moyens de faire respecter les DPI
Procédures et mesures correctives civiles et administratives
21. Article 45.2 requires that judges and administrative officials be authorized to order payment of a right holder's expenses, including legal fees. Please describe the authority of the judges and administrative officials identified in question 1 to order payment of right holders' expenses, the circumstances under which such an order will be given, the factors considered in establishing the expenses, and cite the legal authorities authorizing such payments.
The right holder expenses subject to refund by the infringer of the right (Article 45.2 of the TRIPS Agreement) are, according to the laws of Poland, costs necessary for the purposeful vindication of rights (Article 98 CCP) and include the following: incurred legal costs (legal fees, costs of court experts, costs of appearance of witnesses), the plaintiff's and its attorney's travel costs to the court, salaries lost by the plaintiff as a result of its appearance in court if the plaintiff is not represented by its attorney (Article 98 § 1 and 2 CCP). If the plaintiff (party vindicating its claim) is represented by a attorney, to the costs subject to refund is also added the attomey's remuneration and his expenses, and also all expenses for the paid legal costs (Article 98 § 3 CCP). The attorney's costs are determined in the amount resulting from the invoice issued by the attorney for the whole legal representation. The amount of the attorney's remuneration may not exceed the rates specified in the decree of the Ministry of Justice. If the attorney does not submit the specification of costs (invoice), their amount is determined by the court within the rates' limit specified in the decree, taking into consideration labour consumption of the case. This formula is used exceptionally since attorneys usually submit invoices. The court cannot then reduce its due remuneration if it within the rates' limit. At present, due to amendments in the law, the amount of the attorney's remuneration is determined freely in the agreement concluded with the attorney. However, in order to protect the rights of the party losing the lawsuit, there is a rule that the adjudicated refund of the attorney's costs may not exceed maximum rates specified in the decree of the Minister of Justice. These rates are determined according to the value of the object of the judicial proceedings (of the vindicated claim). The court passing its judgement, is obliged, at the request of the parties, to decree the costs of the proceedings and the adjudicated costs are the total of the above-mentioned expenses of the party (Article 108 CCP).