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Legislative Implementation of Flexibilities - Hungary

Title:Articles 68, 69, 69A, 71 and 74-75 of the of the Act XXXIII of 1995 on the protection of inventions by patents (Consolidated text of 01.04.2010)
Field of IP:Patents
Type of flexibility:Substantive examination
Summary table:PDF

Provisions of Law

Examination as to formal requirements

Article 68

(1) If a patent application satisfies the requirements examined under Article 65, the Hungarian Patent Office shall examine whether the formal requirements of Article 57(2) and (3) have been met.

(2) Where the application does not comply with the requirements examined under paragraph (1), the applicant shall be invited to rectify the irregularities.

(3) The patent application shall be rejected if, in spite of rectification or comments, it still does not comply with the requirements under examination. An application may be rejected only for grounds precisely and expressly stated in the invitation.

(4) Where the applicant does not reply to the invitation within the fixed time limit, the patent application shall be considered withdrawn.

Novelty search

Article 69

(1) If a patent application satisfies the requirements laid down in Article 65, the Hungarian Intellectual Property Office shall carry out a novelty search and shall draw up a search report on the basis of the claims, with due regard to the description and any drawings. (1a) If the patent application - with regard to all the claims or certain claims - is unsuitable for a proper novelty search, the search report shall only contain a statement to it and the reasons thereof. If the patent application also contains claims suitable for novelty search, the Hungarian Intellectual Property Office shall prepare a partial search report with regard to such claims. (1b) If the patent applications does not satisfy the requirements of unity of the invention (Article 59), the Hungarian Intellectual Property Office shall prepare a partial search report concerning the invention mentioned in the first place among the claims, or concerning the inventions constituting a uniform group with this invention as laid down in Article 59. The Hungarian Intellectual Property Office shall invite the applicant for the division of the patent application during the substantive examination (Article 76). (2) The search report shall mention those documents and data, which may be taken into consideration in deciding whether the invention to which the patent application relates is new and involves an inventive activity. (3) The search report together with copies of any cited document shall be transmitted to the applicant. (4) Information shall be published in the official journal of the Hungarian Intellectual Property Office on the search carried out simultaneously with the publication of the application, or separately if the search report is available at a later date.

Article 69/A

(1) At the request of the applicant, the Hungarian Intellectual Property Office shall draw up a search report supplemented with a written opinion.

(2) The written opinion - containing also reasons - is a preliminary establishment whether the invention, taking into account the documents and the information cited in the search report, appears to meet the requirements of novelty, inventive activity and industrial application. (3) The request for a search report supplemented with a written opinion shall be filed within two months from the accorded filing date. (4) A fee fixed by specific legislation shall be paid for a search report supplemented with a written opinion within one month from the filing of the request. (5) If the fee for the search report supplemented with a written opinion is not paid, the Hungarian Intellectual Property Office shall invite the applicant to rectify the irregularity within the time limit fixed in paragraph (4). Failing to comply with the said invitation, the request for a search report supplemented with a written opinion shall be considered withdrawn. (6) The request for a search report supplemented with a written opinion shall be rejected if it does not comply with the requirement under paragraph (3). (7) The Hungarian Intellectual Property Office shall draw up the search report supplemented with a written opinion on the basis of the description, claims and drawings at its disposal on the last day of the fourth month from the according filing date and shall send it to the applicant within six months from the accorded filing date. (8) On request, the Hungarian Intellectual Property Office shall refund the fee for the search report supplemented with a written opinion if (a) the applicant withdraws the patent application until the last day of the third month from the accorded filing date; (b) the Hungarian Intellectual Property Office rejects the patent application within the time limit in point (a); (c) the patent application is considered withdrawn for a reason occurring within the time limit in point (a); (d) the search report supplemented with a written opinion was not mailed after the last day of the sixth month from the accorded filing date because the Hungarian Intellectual Property Office admitted a request for restitutio in integrum concerning a failure to comply with a time limit in paragraph (3) or (4).

Observations

Article 71

(1) During the patent granting procedure any person may file an observation with the Hungarian Intellectual Property Office to the effect that the invention or the application does not comply with a requirement of patentability. (2) Such observation shall be taken into consideration when the requirement objected to in the observation is examined. (3) The person making the observation shall not be a party to the patent granting procedure. That person shall be notified of the outcome of his observation.

Substantive examination

Article 74

(1) The Hungarian Patent Office shall carry out a substantive examination of the published patent application at the request of the applicant.

(2) The substantive examination shall ascertain

(a) whether the invention meets the requirements of Articles 1 to 5/A and whether it is not excluded from patent protection under Article 6(2) to (4) and (10);

(b) whether the application complies with the requirements laid down by this Act.

Article 75

(1) Substantive examination may be requested simultaneously with the filing of the patent application or within six months at the latest after the date of the official information on the performance of the novelty search [Article 69(4)]. Failing this, provisional patent protection shall be considered surrendered.

(2) Withdrawal of the request for substantive examination shall have no legal effect.

(3) An examination fee prescribed by specific legislation shall be payable within two months from the filing of the request.

(4) If the examination fee is not paid upon filing the request, the Hungarian Patent Office shall invite the applicant to rectify the irregularity within the time limit fixed in paragraph (3). Failing to comply with the said invitation, the application shall be considered withdrawn or the provisional patent protection shall be considered surrendered, as the case may be.

(5) The examination fee shall be refunded on request if before the date of the official information on the novelty search the applicant withdraws the application or surrenders provisional patent protection.

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