Scope and ownership of patents
Types of protectable inventions
Can a patent be obtained to cover any type of invention, including software, business methods and medical procedures?
Any novel invention that involves an inventive step and is industrially applicable can be patented in any area of technology. However, the following shall not be treated as inventions under article 1 of Act No. XXXIII of 1995 on the Patent Protection of Inventions (the Patent Act) and so cannot be patented:
- discoveries, scientific theories and mathematical methods;
- aesthetic works;
- plans, rules or procedures relating to intellectual activity;
- games;
- business management methods;
- computer programs; and
- any displays of information.
Inventions that satisfy the above criteria of patentability can be patentable even if they concern a product consisting of or containing biological material, or a process by means of which biological material is produced, processed or used. The term ‘biological material' refers to any material that contains genetic information and is capable of reproducing itself or being reproduced in a biological system.
The human body, at various stages of its formation and development, and the simple discovery of one of its elements – including the sequence or partial sequence of a gene – cannot constitute patentable inventions.
Furthermore, inventions whose commercial exploitation would be contrary to public order or morality are considered not patentable. In particular:
- processes for cloning human beings;
- processes for modifying the germ line genetic identity of human beings;
- use of human embryos for industrial or commercial purposes;
- processes for modifying the genetic identity of animals that are likely to cause them suffering without any substantial medical benefit to humanity or animals;
- animals resulting from the processes referred to in point (4).
Additionally, plant and animal varieties – and essential biological processes to produce plants or animals –are also considered not patentable, except where the technical feasibility of the invention is not limited to a particular plant variety or animal breed.
Under article 6(10) of the Patent Act:
inventions shall not be considered patentable where they are comprising a therapeutic or surgical procedure, which serves the treatment of the human body or an animal, or a diagnostic procedure to be performed on the human body or on an animal. This provision shall not apply to products – material (compound) or mixture – used in such procedures.
Patent ownership
Who owns the patent on an invention made by a company employee, an independent contractor, multiple inventors or a joint venture? How is patent ownership officially recorded and transferred?
Under article 8 of the Patent Act, the right to a patent belongs to its inventor (ie, those who created the invention) or their successor in title.
For inventions developed by employees, specific provisions are set out in articles 9 to 12 of the Patent Act. In this context, service inventions and employee inventions can be differentiated from one another.
A service invention is an invention made by a person who, by reason of his or her employment, is under the obligation to develop solutions in the field of the invention. The right to a patent for a service invention belongs to the employer as successor in title to the inventor. An employee invention is an invention made by a person who, without being under an obligation by reason of his or her employment, makes an invention, the exploitation of which falls within the field of business of his or her employer. The right to a patent for an employee invention belongs to the inventor, but the employer is entitled to exploit the invention on a non-exclusive basis.
An inventor shall notify his or her employer of any service invention or employee invention immediately following its creation. Within 90 days of such a notification, the employer may claim its right to the invention (if a service invention) or state its intentions concerning the exploitation of the invention (if an employee invention).
If two or more persons have jointly created an invention, entitlement shall be vested jointly in them or their respective successors in title. Where entitlement is vested in two or more persons, their respective shares in patent rights shall be deemed equal, failing any indication to the contrary.
For independent contractors and joint ventures, the ownership of the patent is subject to the parties’ agreement, to which ordinary civil substantive law and its general principles apply. This typically includes, for example, the presumption of reciprocity (ie, consideration is due for services set forth in the agreement).
The Hungarian Intellectual Property Office (HIPO) maintains a register of patent applications and patents that contains all facts and circ*mstances relating to patent rights, including, among others, the name and address of the patent holder. The patent register shall be construed as authentic proof of the rights and facts registered therein. The rights and facts registered in the patent register shall be presumed to exist in the absence of proof to the contrary.
The rights that originate from an invention and from patent protection may be assigned, transferred and encumbered, with the exception of the rights attached to the person of the inventor. The transfer can be effectuated by means of an agreement between the parties. The new holder of the patent can request the HIPO to register the change of patent ownership in the patent register.
Patent office proceedings
Patenting timetable and costs
How long does it typically take, and how much does it typically cost, to obtain a patent?
The length of time needed to obtain a patent is highly dependent on the actual subject matter of the patent. Patents in the field of pharmaceuticals require more time, while information technology patents require less time to be granted. As a rule of thumb, it usually takes approximately one year and six months for patent publication to be completed. Altogether, approximately four years are required for a patent grant.
The administrative fee of the patent grant proceedings before the Hungarian Intellectual Property Office (HIPO) may vary between approximately €500and €800 depending on the circ*mstances (eg, the language of the patent documents filed with the HIPO and application for expedited novelty search).
Expedited patent prosecution
Are there any procedures to expedite patent prosecution?
The possibility of conducting an expedited novelty search by the HIPO is available to applicants.
In ordinary cases, the HIPO shall prepare the novelty search report completed with a written opinion within six months of the date when the request for novelty search was submitted by the applicant.
At the applicant’s request, the HIPO shall prepare a novelty search report in the expedited procedure within two months of the date when the request for novelty search was submitted by the applicant. The request for an expedited procedure shall be submitted together with the request for a novelty search report. In this case, the fee payable for the novelty search report is doubled.
According to official information available on the HIPO website, on 12 October 2015, the HIPO and the China National Intellectual Property Administration (SIPO) signed a bilateral agreement on the mutual acceleration of patent grants. Accordingly, on 1 March 2016, the Patent Prosecution Highway project commenced between the HIPO and the SIPO.
Patent application contents
What must be disclosed or described about the invention in a patent application? Are there any particular guidelines that should be followed or pitfalls to avoid in deciding what to include in the application?
The patent application must contain:
- the application for registration;
- the patent description;
- the claims;
- the extract; and
- a drawing and any other appendices as deemed necessary.
In the patent application, the invention shall be disclosed in a manner and with sufficient details to enable an expert to implement it relying on the description and the drawing. In the claims, the scope of the patent protection claimed must be clearly defined and consistent with the description. The extract, however, serves exclusively for the purpose of technical information. Therefore, it is ignored both when interpreting the scope of the protection claimed and when defining the state of the art (article 60 of the Patent Act).
The HIPO has issued and made available on its website examination guidelines that may be of further help to the applicant in terms of the content of the application.
Prior art disclosure obligations
Must an inventor disclose prior art to the patent office examiner?
The patent application shall contain the patent description, in which the state of the art shall be disclosed to the extent possible.
Pursuit of additional claims
May a patent applicant file one or more later applications to pursue additional claims to an invention disclosed in its earlier-filed application? If so, what are the applicable requirements or limitations?
A patent application may not be amended in such a way that, by introducing new subject matter, it contains broader subject matter than that contained in the original application submitted on the date of application (article 72 of the Patent Act).
However, the applicant may revise the patent description, the claim and the drawing before the day of adopting the decision on the grant of the patent.
Under the HIPO’s examination guidelines, anything not directly and unambiguously learnable by a skilled person from the filed application shall be considered impermissible added matter. An application, however, may be amended to include content that would be obvious to a skilled person based on the teaching of the application.
Following patent grant claims may only be removed or limited to limit the scope of protection.
Patent office appeals
Is it possible to appeal an adverse decision by the patent office in a court of law?
There is no appeal or other administrative avenue available against an adverse decision of the HIPO. Court proceedings named ‘reversal proceedings’ are available.
Reversal proceedings are non-litigious proceedings, which can be initiated with a petition of reversal by the applicant. The Metropolitan Court of Budapest has exclusive jurisdiction over the reversal proceedings, with appeals to the Metropolitan Court of Appeal.
Before the petition of reversal is referred to the court, under certain procedural conditions, the HIPO may amend or withdraw its decisions on the basis of the petition, provided that they fall within the scope of certain subject matters (eg, the grant of a patent, invalidation of a patent and declaration of non-infringement).
The same legal remedy is available against the amended decision as in the case of the original decision.
Oppositions or protests to patents
Does the patent office provide any mechanism for opposing the grant of a patent?
In Hungary, the HIPO manages patent administration. First, the HIPO performs an initial examination of the application and, if the application meets all formal requirements, the HIPO examines the application’s compliance with the patentability requirements (ie, novelty, inventive steps and industrial applicability).
In the course of patent grant proceedings, there is no institutionalised post- or pre-grant opposition procedure. However, during the procedural period between the publication of the patent application and the decision on grant, third parties may file observations objecting to patentability. These observations shall be taken into account by the HIPO when adopting its decision. These third parties are not parties to the patent grant proceedings but must be notified of the results of their observations.
Priority of invention
Does the patent office provide any mechanism for resolving priority disputes between different applicants for the same invention? What factors determine who has priority?
Priority date is defined in article 61 of the Patent Act as follows:
The priority of an application shall be determined:
in general by the date of receipt of the patent application (application priority),
in the cases specified by the Paris Convention for the Protection of Industrial Property, by the filing date of foreign application (priority within the Community),
by the date of application filed by the applicant for an identical subject matter within the preceding twelve months and which is still in progress and not yet published, provided that no other priority has been asserted in connection therewith (internal priority).
There is no case law or guidance regarding whether a standard test is applied for assessing priority, but it is expected that the European Patent Office approach (the clear and unambiguous disclosure of the same invention) is followed.
Modification and re-examination of patents
Does the patent office provide procedures for modifying, re-examining or revoking a patent? May a court amend the patent claims during a lawsuit?
Although the modification of a patent application is possible to a certain extent before the patent grant, it is not possible to amend the granted patent (national or central) following national proceedings.
A patent may be amended exclusively in revocation proceedings before the HIPO (if the grounds for invalidation prevail only partially, the patent shall be limited), and the patentee may not request the amendment. In practice, a request for amendment is considered an auxiliary request and decided together with the revocation action. However, by filing a declaration to the HIPO, the patentee can surrender certain claims.
Patent duration
How is the duration of patent protection determined?
Provisional patent protection commences upon publication of the application, with retroactive effect to the date of application. The patent protection becomes definitive when the applicant is granted the patent for the invention.
The standard patent term is 20 years from the application date.
In terms of supplementary protection certificates (SPCs), as Hungary is an EU member state, the durations of SPCs are calculated in line with Regulation No. 469/2009 of the European Parliament and of the Council concerning the SPC for medicinal products. Namely, the SPC takes effect at the end of the term of the basic patent and lasts for a period equal to the period that elapsed between the date of lodging the application for the basic patent and the date of the first authorisation to place the product on the market in the European Union, reduced by a period of five years, provided that in any event the duration of the certificate cannot exceed five years from the date on which it becomes effective.
