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Legislative Implementation of Flexibilities - Hungary

Title:Articles 42 (1) (b), 60, 63 and 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:Disclosure related flexibilities
Summary table:PDF

Provisions of Law

Article 42

(1) The patent shall be revoked ex tunc:

(b) the description does not disclose the invention in a clear and complete manner as required by this Act [Article 60(1)];

Disclosure of invention claims and abstract

Article 60

(1) A patent application shall disclose the invention in a manner sufficiently clear and detailed for it to be carried out by a person skilled in the art on the basis of the description and the drawings. The industrial applicability of a sequence or a partial sequence of a gene shall be disclosed in the patent application.

(2) If an invention involves the use of or concerns biological material which is not available to the public and which cannot be disclosed as required by paragraph (1), the invention shall be considered disclosed in a sufficient and detailed manner prescribed by this Act, provided that

(a) the biological material has been deposited in compliance with the provisions of Article 63;

(b) the application as filed contains such relevant information as is available to the applicant on the characteristics of the biological material deposited;

(c) the patent application states the name of the depositary institution and the accession number.

(3) The claims shall define clearly the scope of the protection sought, in accordance with the description.

(4) The abstract shall merely serve for use as technical information and may not be taken into account either for the purpose of interpreting the scope of the protection sought or for the purpose of defining the state of the art under Article 2(3).

Deposit and access of a biological material

Article 63

(1) If an invention involving the use of or concerning biological material which is not available to the public cannot be disclosed in the patent application as required in Article 60(1), it must be proved that the biological material has been deposited no later than the date of filing of the patent application under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure.

(2) If the biological material is deposited after the filing of the patent application, the date of deposit shall be regarded as the date of filing.

(3) The proof referred to in paragraph (1) shall be submitted within a period of sixteen months after the date of the earliest priority.

(4) Access to the deposited biological material shall be provided through the supply of a sample:

(a) up to the publication of the patent application, to those persons who are authorised to inspect the files under the provisions of Article 53(1);

(b) between the publication of the application and the granting of the patent, to anyone requesting it or, if the applicant so requests, only to an independent expert;

(c) after the patent has been granted, and notwithstanding revocation or cancellation thereof, to anyone requesting it.

(5) The person to whom a sample has been supplied may not make the sample or any material derived from it available to third parties before the termination of the patent granting procedure or before the lapse of definitive patent protection and, with the exception of a holder of a compulsory license, he may use the sample or any material derived from it only for experimental purposes, unless the applicant or the patentee expressly waives the prescription of such obligation. A material is deemed to be derived if it has those characteristics of the deposited biological material, which are essential to carry out the invention.

(6) At the applicant's request, where an application is refused, withdrawn or considered withdrawn, access to the deposited material shall be limited to an independent expert for 20 years from the date of filing of the patent application. In that case, the provisions of paragraph (5) shall apply.

(7) The applicant's requests referred to in paragraph (4)(b) and in paragraph (6) may only be submitted up to the date on which the technical preparations for publishing the patent application are deemed to have been completed.

(8) If the biological material deposited in accordance with the provisions of paragraphs (1) to (7) ceases to be available from the recognised depositary institution, a new deposit of the material shall be permitted on the same terms as those laid down in the Budapest Treaty.

(9) Any new deposit shall be accompanied by a statement of the depositor certifying that the newly deposited biological material is the same as that originally deposited.

(10) The biological material may be deposited by a person other than the applicant, provided that the name and address of the depositor are stated in the patent application and a declaration is submitted that the depositor has authorised the applicant to refer to the deposited biological material in the patent description and has given his unreserved and irrevocable consent to the biological material being made available to the public in accordance with paragraphs (1) to (9).

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