HUNGARY Law and Practice Contributed by: Árpád Pethő, Levente Pethő, Eszter Szakács and József Tálas, Danubia Patent & Law Office
ers any product or process in which each char- acteristic of the claim is realised. The doctrine of equivalence is also implemented in the Patent Act – ie, to determine whether the patent protection extends to a product or pro- cess, account shall be taken of any characteris- tics of the product or process that are equivalent to those specified in the claims. 3.5 Defences Against Infringement As the Hungarian patent litigation system allows bifurcation (ie, the defendant of a patent infringe- ment lawsuit may choose whether to start revo- cation directly as a counterclaim or separately before the HIPO), the natural defence against an infringement case is to file a revocation action. The infringement lawsuit is suspended whenever the revocation proceeding is initiated separate- ly before the HIPO, be it before or during the infringement lawsuit, but preliminary injunction procedures are never suspended. The exception is that, as of 1 January 2022, the defendant in an infringement lawsuit may file a revocation action as a direct counterclaim in the infringement law- suit, so that the court decides on both issues in a unified proceeding. Such counterclaim may only be filed at the court if there is no ongoing revocation proceeding before the HIPO. According to Article 37 of the Patent Act, any person believing that proceedings for patent infringement may be instituted against them may file a non-infringement procedure, request- ing a decision ruling that the product or process exploited or to be exploited by them does not infringe a particular patent. Such a procedure shall be filed with the HIPO before the submis- sion of the infringement action. In this instance, courts usually also suspend the infringement proceeding until the final decision in the non- infringement procedure.
Other defences (or rather, limitation of the exclu- sive rights of the patentee) also exist, such as the Bolar exemption, patent exhaustion, prior use rights, farmers’ privileges, transport traffic and compulsory licences. Regarding the Bolar exemption, Article 19(6)(c) of the Patent Act contains a wide exemption in Hungary for specified pharmaceuticals, as of 1 January 2022. According to this exemption, the exclusive right of the patentee shall not extend to acts carried out for experimental purposes relating to the subject matter of the invention, including experiments, studies and related tasks necessary for obtaining an authorisation to place a pharmaceutical product on the mar- ket in the EEA or in a third country – particularly the manufacture, use, distribution, offer for sale, storage, importation or exportation – regardless of whether or not these acts are done by the applicant for the marketing authorisation or by another person in a commercial relationship with the applicant for this purpose. For non-pharmaceutical products, a more general and technology-neutral experimental exemption applies in Article 19(6)b, according to which the exclusive right of the patentee does not extend to acts done for experimental pur- poses in connection with the subject matter of the patented invention. Furthermore, according to Article 19(6), acts that are performed for the purpose of private use and/or that are considered as non-economic activities are also exempt, as is the non-regular preparation of a medicine in a pharmacy, upon a doctor’s prescription. The prior use of the invention is also treated as a limitation of the exclusive rights of the patent holder, if someone had begun making or using
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