HUNGARY Law and Practice Contributed by: Árpád Pethő, Levente Pethő, Eszter Szakács and József Tálas, Danubia Patent & Law Office
Patent Act, if a preliminary injunction is granted, the main lawsuit should be initiated within 15 calendar days or the preliminary injunction will be lifted. In the case of a lawsuit for compulsory licence, the plaintiff (ie, the party seeking the licence) should demonstrate that the patentee was not willing to grant a licence in reasonable time. This can be regarded as a prerequisite as it implies a mandatory communication between the parties prior to the lawsuit. In Hungary, licensees can also commence pat- ent infringement lawsuits in their own name, pro- vided that the licensee is registered as such in the patent register, and can prove that it called the plaintiff to stand against infringement and the plaintiff remained passive for 30 days. 2.6 Legal Representation Foreign individuals and entities appearing at the HIPO must be represented by either a lawyer or a patent lawyer, or a team of such. In court pro- ceedings, legal representation is required by law for both foreign and domestic parties. 2.7 Interim Injunctions In IP cases, preliminary injunctions are available based on the general rules of the Code of Civil Procedure (CCP), but with special rules (eg, as laid down in the Patent Act). The right-holder seeking a preliminary injunction should demonstrate the probability of infringe- ment as well as the necessity and proportionality in the request. Regarding necessity, a special presumption exists in the Patent Act, by which necessity shall be presumed if: • the invention is under patent protection;
• the plaintiff is the patentee or registered licen- see; and • fewer than 60 days have lapsed since the plaintiff gained knowledge of the infringement and fewer than six months have passed since the actual commencement of the infringe- ment. However, this presumption can be overturned; in the course of evaluating this, the court shall attribute special consideration to certain facts, particularly if the patent has been revoked at least at first instance and in the case of Europe- an patents in any European Patent Convention (EPC) member state. The proportionality require- ment means weighing up the balance of public interest according to the Patent Act, taking into account the interests of third parties. Theoretically, a preliminary injunction may also be ordered in the event of direct threat of infringement, before the infringing product is actually launched on the market. However, in these cases the court tends to require convinc- ing and specific evidence that the start of distri- bution or manufacturing is imminent. The preliminary injunction is typically aimed at a cease-and-desist order, as well as the seizure and withdrawal of the products from the chan- nels of commerce. Hungarian law applies spe- cific injunctions, meaning that the court specifi- cally identifies the infringing product by name or other identifier. Either party may appeal a preliminary injunc- tion, although it is enforceable regardless of an appeal. Upon the request and arguments of the defendant, the court often effectively grants a preliminary injunction, subject to a bond to be deposited by the plaintiff.
206 CHAMBERS.COM
Powered by FlippingBook