The Hungarian Parliament has effected amendments to the patent law which will become effective on July 1. The new law repeals the previous prohibitions on the grant of patents related to products obtained by chemical processes, pharmaceutical compositions, foodstuffs and products of biotechnological processes such as new microorganisms.
Applications directed to such subject matter may be filed on or after July 1. In respect of pending applications, claims directed to previously prohibited subject matter may be added, but such claims will be entitled only to the date of July 1, 1994. Thus, if publication has occurred prior to that date, there may be a problem in validly adding claims to such subject matter to a previously filed application. Apparently, the precise wording of the statute is not entirely clear on this point and, although the above summary is consistent with the Hungarian Patent Office's view on the issue, it is conceivable that the courts might at some later stage conclude that product claims could have been added to pending applications and thus in cases of importance it might be useful to consider this option. Before doing so consideration should also be given to the new pipeline protection that is set out in the new amendments. Under the pipeline provisions, applications can be filed in Hungary based on priority dates between January 1, 1987 and July 1, 1993 if those applications were directed to pharmaceutical compositions and/or substances. It should, however, be noted that this pipeline protection does not apply to any other form of chemical substance or foodstuff that was previously precluded from protection. Any application for protection under the pipeline provisions must be filed by
June 30, 1995
and will only be accepted if there has been a granted patent for the active substance or composition outside Hungary. The term of such pipeline patent will be the same as that of the foreign patent on which the Hungarian rights are based. No examination of such pipeline patents will take place but it will be a ground of invalidity of such a patent that the foreign patent on which it is based did not meet Hungarian requirements as to novelty, inventive step and the like or that the pipeline application itself was in some way faulty.
Protection under a pipeline patent will not be effective against anyone who had, prior to the date when the new law comes into effect, manufactured the pharmaceutical product in question in Hungary nor against any successor in title of any business which has carried out such manufacture.
Other amendments to the law include a reversal of the burden of proof in cases where infringement of a process patent is alleged, if either the product obtained by the process itself is new or "a substantial likelihood exists that the product was made by the patented process and the patentee has been unable, despite reasonable efforts, to determine the process actually used".
Compulsory license provisions have been amended so as to comply with those of the GATT's TRIPS Agreement (see our Information Letter N.S. 182).
June 1994 Index