HUNGARY Law and Practice Contributed by: Árpád Pethő, Levente Pethő, Eszter Szakács and József Tálas, Danubia Patent & Law Office
4. Revocation/Cancellation 4.1 Reasons and Remedies for Revocation/Cancellation
The revocation of patents – either national pat- ents or the Hungarian part of European patents – falls under the competence of the HIPO at first instance, or under the Metropolitan Court if the revocation action is introduced as a counterclaim by the defendant in an infringement lawsuit. A registered patent may also be cancelled if the renewal fees have not been paid, or due to with- drawal by the patent owner. 4.2 Partial Revocation/Cancellation A patent can be revoked in whole or in part. According to Article 42(2), if the grounds for rev- ocation affect the patent in part only, the scope of the patent shall be limited accordingly. 4.3 Amendments in Revocation/ Cancellation Proceedings The patent owner may request an amendment of the claim in a revocation procedure, and may file the suggested wording of the amendment. The scope of protection conferred by the amended claim must be narrower than that of the original. In addition, the amended claims shall be dis- closed in full in the original application, and shall fulfil all the patentability requirements. There is no cancellation proceeding for patent owners in Hungary. 4.4 Revocation/Cancellation and Infringement Revocation and infringement proceedings are not generally heard together, according to the basically bifurcated Hungarian patent litigation system. If the revocation proceedings are ongo- ing, the main infringement procedures must be suspended until the final decision in the revoca- tion procedure; the decision in the revocation procedure always prevails over the decision of the main infringement procedure.
The revocation of a patent may be requested by anyone without time limit and without any legal or commercial interest, except where the patent is granted for someone who is not entitled to it; only the real and true inventor or predecessor of the inventor may file such a request. If a patent is invalid, it shall be revoked ex tunc, with retroactive effect, from which it follows that no patent infringement can be established on the basis of a revoked patent. However, impor- tantly, the Hungarian patent litigation system allows bifurcation, which means that the revo- cation action starts before the HIPO unless it is initiated as a counterclaim against the infringe- ment petition by the defendant of an infringe- ment lawsuit. According to Article 42(1) of the Patent Act, the patent shall be revoked ex tunc if: • the subject matter of the patent does not sat- isfy the requirements laid down in the Patent Act (lack of novelty, inventive step, industrial applicability, exclusion from patent protec- tion); • the description does not disclose the inven- tion in a clear and complete manner (insuf- ficiency); • the subject matter of the patent extends beyond the content of the application as filed at the date of filing or – in the case of division – beyond the content of the divisional appli- cation (added matter); or • it was granted to a person who was not enti- tled to it.
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