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Applying for a patent

Patentability
What are the criteria for patentability in your jurisdiction?

The criteria for patentability in Hungarian law are in line with the European Patent Convention 2000. According to Article 1 of the Patent Act (Act XXXIII/1995), patents “shall be granted for any inventions in any field of technology that are new, involve an inventive step and are susceptible of industrial application”.

The three most important criteria for patentability are defined by the Patent Act as follows:

  • Novelty – an invention is considered new if it does not form part of the state of the art (Article 2 of the Patent Act).
  • Inventive step – an invention is considered to involve an inventive step if, in regard to the state of the art, it is not obvious to a person skilled in the art (Article 4 of the Patent Act).
  • Industrial application – an invention is considered susceptible of industrial application if it can be made or used in any sector of industry or agriculture (Article 5 of the Patent Act).

Hungarian national patents are prosecuted, granted and registered by the IP Office. However, patent protection in Hungary may also be obtained through the Hungarian national phase of an international patent application filed under the Patent Cooperation Treaty or by validating a European patent in Hungary.

What are the limits on patentability?

Article 1(2) of the Patent Act excludes the following from patentability:

  • discoveries, scientific theories and mathematical methods;
  • aesthetic creations;
  • schemes, rules and methods for performing mental acts, playing games or doing business;
  • computer programs; and
  • presentations of information.

This is a verbatim implementation of Article 52 (2) of the European Patent Convention (EPC) 2000.

The  subject matters above are excluded from patentability only to the extent to which a patent application or patent relates to the subject matter (Article 1(3) of the Patent Act).

Article 6 of the Patent Act identifies the exceptions from patentability. It is also in line with Article 53 of the EPC 2000.

No patent protection will be granted for an invention whose exploitation is contrary to public policy or morality. Exploitation may not be regarded as contrary to public policy merely because it is prohibited by law or regulations.

On the basis of the above, the following are not patentable:

  • processes for cloning humans;
  • processes for modifying the germ line or genetic identity of humans;
  • the use of human embryos for industrial or commercial purposes;
  • processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to humans or animals;
  • animals resulting from processes referred to in Subparagraph (d) of the Patent Act;
  • plant varieties and animal breeds (plant varieties may be granted plant variety protection according to special rules within the Patent Act); and
  • essentially biological processes for the production of plants or animals (a process for the production of plants or animals is essentially biological if it consists entirely of crossing, selection or other natural phenomena).

Inventions which concern plants or animals are patentable if the technical feasibility of the invention is not confined to a particular plant variety or animal breed.

Surgical, therapeutic or diagnostic methods of treatment for humans or animals are not patentable. This provision does not apply to products – in particular, substances (compounds) and compositions – used in these methods.

To what extent can inventions covering software be patented?

In Hungary, software may not be patented as such (Articles 1 (2) (c) and (d) of the Patent Act). However, software may be protected by other types of intellectual property (eg, copyrights, know-how and business secrets), and may be brought to the IP Office as proof of ownership.

The IP Office and European Patent Office (EPO) typically reject software due to a lack of technical character. The prevailing approach is to deny the possible technical character of any solution achieved by software; however, the EPO is slowly moving away from this rigid standpoint (as are IP offices in other EU member states, at a slower pace).

Some applications based on software (ie, so-called ‘computer implemented inventions’) may be patentable, provided that they do not cover only an organisational issue or abstract question. In other words, if the claims are formulated in a way that demonstrates that the software is used to solve a technical issue (eg, comparing the strength of two electric signals and storing the result in the memory), the invention will be considered a technical solution and may be patentable. However, patent attorneys must be skilled and able to formulate the claims in a way that can benefit from the evolving practice of IP offices.

To what extent can inventions covering business methods be patented?

In accordance with Article 1(2)(c) of the Patent Act, business schemes, rules and methods may not be patentable as such. They may be protected by know-how or brought before the IP Office. As a precondition, the method must be written down.

However, when rules or methods are part of a system that consists of technical elements, the patentability of the entire system may be considered. Again, similarly to software, patentability largely depends on the system or solution to be protected and the way in which the claims are formulated.

To what extent can inventions relating to stem cells be patented?

Biotechnological patents are governed by Article 5(A) of the Patent Act. Hungarian patent law aligns with EU Directive 98/44/EC of the European Parliament and the EU Council on the legal protection of biotechnological inventions (July 6 1998). The limitation provided by the European Court of Justice (ECJ) on biotechnological inventions (eg, Monsanto v Cefetra (C-428/08) and Oliver Brüstle v Greenpeace eV (C-34/10)) also applies.

For inventions relating to stem cells, the IP Office’s practice is intentionally harmonised with that of the European Patent Office and is based on EU Directive 98/44/EC and relevant ECJ rulings. Consequently, inventions relating to stem cells whose elaboration does not destroy human embryos are patentable.

Are there restrictions on any other kinds of invention?

No.