Requirements of patentability

Patentable inventions are defined in Hungary in line with Article 52 of the EPC, i.e. patents shall be granted for any invention which is new, involve an inventive step and susceptible of industrial application in all fields of technology.

The followings in particular are not regarded as inventions within the meaning of the above definition:

discoveries, scientific theories and mathematical methods;

aesthetic creations;

schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

presentations of information.

The definition of novelty also conforms with Article 54 of the EPC:

"(1) An invention is considered to be new if it does not form part of the state of the art.

(2) The state of the art comprises everything made available to the public by means of a written or oral description, by use, or in any other way, before the priority date of the patent application.”

Additionally, the scope of the state of the art is broadened with the content of such domestic patent or utility model applications (as filed) which have an earlier priority date than the application to be examined but were published only on or after the priority date of the application to be examined. However, beyond the domestic applications, European patents designating Hungary and PCT applications where the Hungarian translation was filed in the Hungarian national phase, also should be considered as part of the “state of the art”, if the priority and publication dates are in the above special constellation.

(The abstract does not belong to the content of the application.)

An invention is considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.

If the state of the art also includes domestic, European and PCT applications which have earlier priority than that of the application to be examined, these documents are not to be considered in deciding whether there has been an inventive step.

An invention is considered as susceptible to industrial application if it can be made or used in any kind of industry, including agriculture.

Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body are not regarded as inventions which are susceptible of industrial application. This provision does not apply to products, in particular substances or compositions, for use in any of these methods.

The duration of patent protection is 20 years from the filing date.

Specific rules apply to the protection of plant varieties, which are in line with the UPOV regulations, where a special kind of protection has been created.

SPC (supplementary protection certificate) for patents covering pharmaceutical or plant protection compositions needing specially registered marketing authorizations is available in Hungary, too.

The scope of protection of a granted claim extends to all products or processes which realize all the features claimed. The interpretation of the claims cannot be restricted exclusively to the literal meaning of the features, but at the same time the claims cannot be interpreted in a way as if they would only offer a guidance to define the invention.

Provisional protection begins with the publication of a patent application. The provisional protection period turns into regular protection when the patent is granted (with retroactive effect to the filing date). In the case of European patents, provisional protection starts when the Hungarian translation of the claims of a European application is specifically published in Hungary.

The owner of a patent has an exclusive right for excluding third parties from the use of the invention and licensing the invention. The term "use" includes production, utilization, sale, offer for sale, import and store for such purpose. The protection granted for a method covers also the product made directly by the method. The exclusive right does not extend to acts concerning products having been put on the market in the European Economic Area by the patentee or with his express consent (exhaustion of the right). The term “use” is interpreted in the commercial sense. Private and experimental uses are outside the scope of protection.

Compulsory license

Enterprises residing in Hungary may apply for a compulsory license owing to lack of exploitation if an invention has not been used or sold within four years following the filing date or three years after granting the patent, whichever is longer.

The conditions for granting a compulsory license owing to dependence of patents are as follows:

- the dependent patent cannot be exercised without infringing the dominant patent;

- the dependent patent should involve an important technical advance with respect to the dominant patent.

Common provisions on compulsory licenses are as follows:

A compulsory license may be granted if the patentee was unwilling to grant a voluntary license under appropriate conditions and within a reasonable period of time and exploitation of the invention to the required extent is ensured.

The patentee of the dominant patent should receive an adequate compensation for the compulsory license. The patentee may request cancellation of the compulsory license if the circumstances on which it was based cease to exist.