HUNGARY Law and Practice Contributed by: Árpád Pethő, Levente Pethő, Eszter Szakács and József Tálas, Danubia Patent & Law Office
Softening the strict bifurcation system, as of 1 January 2022, the defendant of the patent infringement lawsuit may also choose to file the revocation request in the form of a counterclaim against the infringement petition, in which case both infringement and revocation actions are decided in the same court proceeding. In any case, the decision in preliminary injunction pro- cedures always prevails over the final decision in the revocation procedure, so the patent owner has a chance to stop the infringing activity until the end of the revocation procedure. There are different rules for litigating utility mod- els. In a utility model infringement lawsuit, the court may decide not to suspend the lawsuit if the patentee presents a so-called positive opin- ion on protection, which can be obtained by the HIPO. In utility model infringement proceedings, if the court does not suspend the lawsuit, it may adjudicate the merits of the invalidity objection of the defendant and dismiss the infringement petition on this basis. This is, however, not an erga omnes decision on invalidity. 5. Trial and Settlement 5.1 Special Procedural Provisions for Intellectual Property Rights The general rules contained in the CCP (Act CXXX of 2016) contain special provisions relat- ing to court proceedings concerning the meri- torious decision of the HIPO in respect of IP rights (patents, utility models). These special provisions relate primarily to the definition of the competent court, the composition of the court, exclusion, publicity and representation. An IP-specific provision for court proceedings for infringement and revocation is that the exclu- sive jurisdiction of the Metropolitan Tribunal of
Budapest shall apply. At the request of either of the parties, the court may decide to hold the hearings in closed sessions, even in the absence of the conditions set forth in the CCP. In addition to the general cases of exclusion set forth in the CCP, the persons who participate in passing the decision of the HIPO, as well as their close relatives (according to the Civil Code), shall be prohibited from taking part in the case and from participating as a judge. In cases brought in connection with IP rights, in addition to lawyers, patent attorneys may take action in the proceed- ings as representatives, including in cases of mandatory legal representation. Main infringement proceedings may take one to two years at first instance, depending on the complexity of the case and how many experts are needed. Cross-examination is not practised in Hungary; it is primarily the judge who asks questions of the experts or witnesses, but the judge may allow the parties to ask questions directly as well. Experts are typically heard at first instance, but can also be heard at second instance if such a need arises. During the trial, there is a preparatory and one or several main hearings but, in theory, if the case is simple the preparatory hearing may turn into a main one and the court can reach a decision on the first hearing. The length of the proceed- ing is increased by years if there is a revocation action at the EPO or at the HIPO against the patent, due to which the infringement lawsuit is suspended. As the option of challenging patent validity before the court as a counterclaim to infringe is very new (applicable from 1 January 2022), there is no practice with regard to the length of the combined infringement revocation lawsuit.
213 CHAMBERS.COM
Powered by FlippingBook