Pages 199-206

INFORMATION FROM THE CONTRACTING / EXTENSION STATES

HU Hungary

Impact of the European Patent Convention on national law

On 1 January 2003, Hungary became the 26^th contracting state to the EPC. Provisions implementing the EPC and bringing Hungarian patent law into line with the EPC are contained in Law No. XXXIX of 2002 amending Law No. XXXIII of 1995 on the Protection of Inventions by Patents.

A. National legal bases

1. Law No. XXXIII of 1995 on the Protection of Inventions by Patents (PL), as amended by Law No. XXXIX of 2002 (PLAmend);

2. Law No. L of 2002 on the promulgation of the Convention on the Grant of European Patents of 5 October 1973 (European Patent Convention);

3. Decree No. 22/2002. (XII. 13.) IM of the Minister of Justice (Igazságügyi Minisztérium, IM) on the promulgation of the Implementing Regulations to the Convention on the Grant of European Patents of 5 October 1973 (PromEPC-IR);

4. Decree No. 45/2002. (XII. 28.) GKM of the Minister of Economy and Transport (Gazdasági és Közlekedési Minisztérium, GKM) on the promulgation of the Rules relating to Fees of the Convention on the Grant of European Patents of 5 October 1973;

5. Decree No. 20/2002. (XII. 12.) IM of the Minister of Justice (Igazságügyi Minisztérium, IM) on the Detailed Formalities of Patent Applications, Documents Filed in relation to Patent Applications, European Patent Applications and European Patents, International Patent Applications and Plant Varieties Applications (PForm);

6. Decree No. 42/2002. (XII. 28.) GKM of the Minister of Economy and Transport (Gazdasági és Közlekedési Minisztérium, GKM) on the Fees for Administrative Services in Industrial Property Procedures before the Hungarian Patent Office (HPO) (PFee).

B. Application of the EPC in Hungary

The main provisions relating to the application of the EPC in Hungary are summarised below:

The information is structured in the same way as in the EPO brochure "National Law relating to the EPC". This summary may therefore be used as a supplement to the brochure until a revised edition is published.

I. Filing of European patent applications (Article 75 EPC, Article 84/C PL)

A European patent application may be filed either with the EPO or with the HPO1:

Hungarian Patent Office

Garibaldi u. 2

1054 Budapest

Hungary

A European patent application must be filed at the HPO if the applicant is of Hungarian nationality or if his residence or principal place of business is in that country, except if in the European patent application the priority of such a patent application is claimed which was filed with the HPO at least two months earlier and the treatment of which as a state secret was not ordered by the President of the HPO. Filing of documents by facsimile is not permitted. A European patent application may be filed with the HPO in any of the languages under Article 14(1) and (2) EPC, provided that the application contains in Hungarian or in any of the official languages of the EPO at least the following:

a) an indication that a European patent is sought;

b) information identifying the applicant or permitting contacts with the applicant.

II. A. Rights conferred by a European patent application after publication (Articles 67 and 93 EPC, Article 84/E PL)

Under Article 84/E of the PL, a published European patent application designating the Republic of Hungary enjoys provisional protection as from the date on which a translation of the claims as submitted by the applicant has been published by the HPO.

II. B. Filing a translation of the claims (Article 67(3) EPC, Article 84/E PL, Rule 35(3) to (14) PromEPC-IR, Article 2(2) to (5) and 10 PForm)

The translation of the claims must be drawn up according to detailed formal requirements laid down by PForm. A fee prescribed by PForm is be payable for the publication of the translation of the claims within two months from the filing of the request. The translation of the claims must be filed with the HPO in duplicate. If the fee for the publication of the claims is not paid upon filing the request, the HPO will invite the applicant to correct the defect within the prescribed time limit. In the event of failure to observe this provision, the request will be considered withdrawn. The HPO will make available for inspection the Hungarian translation of the claims.

The HPO accepts documents meeting the formal requirements of Rule 35(3) to (14) EPC. In accordance with Article 12(1) to (3) Pform, the translation may be corrected, subject to payment of a fee.

II. C. Representation by patent agent

An applicant with neither a residence nor principal place of business in Hungary must be represented by an authorised agent in all proceedings. After the accession of the Republic of Hungary to the European Union, an applicant with a residence or principal place of business in the European Union will not have to be represented by an authorised agent in proceedings before the HPO.

III. Filing a translation of the patent specification (Article 65 EPC, Article 84/H PL, Rule 35(3) to (14) PromEPC-IR, Article 2(2) to (5) and 10 PForm)

A European patent has effect in the Republic of Hungary only if the proprietor of the patent supplies the HPO with the Hungarian translation of the text in which the EPO intends to grant the patent or maintain it as amended within three months from the date on which the mention of the grant is published in the European Patent Bulletin. In the event of failure to observe this provision, the European patent will be deemed to be void ab initio in the Republic of Hungary.

The translation of the text of the European patent must be prepared and filed in compliance with the detailed formalities laid down by PForm. For the publication and printing of the translation, a fee fixed by PFee will be payable within two months from the filing of the translation. If the fee for the publication and printing of the translation is not paid upon filing the translation, the HPO will invite the applicant to correct the defect within two months from the filing of the translation. In the event of failure to observe this provision, the Hungarian translation will be deemed not to have been filed. The HPO will give information to the public on the filing of the Hungarian translation in its official journal.

The HPO accepts documents meeting the formal requirements of Rule 35(3) to (14) EPC. According to Article 12(1) to (3) Pform, the translation may be corrected, subject to payment of a fee.

IV. Authentic text of a European patent application or European patent (Article 70 EPC, Article 84/J PL)

The translation is the authentic text of the European patent application or patent if the scope of protection is narrower than in the language of proceedings. This does not apply, however, in revocation proceedings. Regarding the rights of a prior user where a translation is corrected, Article 84/K (6) PL provides for the safeguards mentioned in Article 70(4)(b) EPC.

V. Payment of renewal fees for European patents (Article 141 EPC, Article 84/L PL, Article 23 PL, Article 40 PL, Article 3(5) PFee, Article 8 PFee)

Renewal fees are payable to the HPO for the years following that in which the European Patent Bulletin mentions the grant of the European patent. Failure to pay the renewal fee will result in the lapse of the patent as from the start of the fee year for which the fee has not been paid.

Renewal fees are due on the anniversary of the date of filing and are payable in advance for the forthcoming period, on the anniversaries of the date of filing.

The first renewal fee to be paid to the HPO falling due within three months after the publication of the mention of the grant of the European patent in the European Patent Bulletin can also be paid after the due date - without any additional fee - within this period of three months.

The renewal fee may be paid without any surcharge during the first two month of the grace period. The renewal fee is payable with a surcharge of 25% during the third and fourth months, and with a surcharge of 50% of the unpaid fee during the fifth and sixth month of the grace period.

Restitutio in integrum is possible, provided that the request is submitted not later than three months after the expiry of the grace period and provided that double the renewal fee due for that year is paid within this period.

The renewal fee may also be paid within three months before the beginning of the grace period.

The HPO is not obliged to issue reminders in case of non-payment of renewal fees; however, one reminder is normally sent before the due date of the renewal fee and one during the grace period.

Renewal fees are currently as follows:

VI. Conversion of European patent applications into national patent applications (Articles 135 to 137 EPC, Article 84/F PL)

The Hungarian law provides for a conversion in the case of deemed withdrawal pursuant to Article 77(5) or Article 90(3) EPC at the request of the applicant and on condition that the filing fee and the search fee are paid within two months from the filing of the request for conversion, or - if the request was not filed with the HPO - from the receipt thereof. If the European patent application has been drawn up in a foreign language, the Hungarian translation of the application must be filed with the HPO within four months from the filing of the request for conversion, or - if the request was not filed with the Hungarian Patent Office - from the receipt thereof.

VII. Payment of fees

All fees are be payable to the account of the Hungarian Patent Office at the Hungarian Treasury under No. 10032000-01731842-00000000 with an indication of the filing number or of the registration number and with indication of "Treasury Transaction Code 310".

Foreign applicants must fulfil their obligation of payment of fees through an appointed patent agent or attorney resident in Hungary.

After the accession of the Republic of Hungary to the European Union, applicants with a residence or principal place of business in the European Union will not have to fulfil their obligation of payment of fees through an appointed patent agent or attorney resident in Hungary.

VIII. Miscellaneous

1. Simultaneous protection

(Article 139(3) EPC)

The Hungarian patent law does not exclude simultaneous protection according to Article 139(3) EPC.

2. Territorial field of application of the EPC (Article 168 EPC)

The EPC applies in the territory of the Republic of Hungary.

C. Amendment of Hungarian patent law

1. Patentability

The patentability criteria (concept of invention, novelty, inventive step, industrial application) are fully consistent with those of the EPC (Articles 52 to 57 EPC).

2. Term of the patent

A patent is granted for a term of 20 years, as from the date of filing the application.

3. Rights conferred by the patent

The rights conferred by the patent reflect the provisions of the Community Patent Convention (see Article 25 et seq. CPC 1989).

4. Extent of protection

The extent of protection is determined by the claims. The description may serve as a guide to interpreting the claims.

D. Other international treaties

The Patent Cooperation Treaty took effect in Hungary on 27 June 1980 (Decree Law No. 14 of 1980). Since 1 January 2003 it has been possible to obtain a European patent for Hungary by filing a Euro-PCT application.

Hungary is party to the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure. The Treaty entered into force in Hungary on 19 August 1980 (Decree Law No. 1 of 1981).

Hungary is a member of the TRIPs Agreement. The Agreement entered into force in Hungary on 1 January 1995 (Law No. IX of 1998).

Hungary acceded to the Act of 1991 of the International Convention for the Protection of New Varieties of Plants (UPOV). The revised text of the Convention took effect in Hungary on 1 January 2003 (Law No. LI of 2002).