HUNGARY
PATENT TRANSLATIONS: OLD AND NEW PROBLEMS
Michael Lantos Danubia Law Offi ce LLC
Several changes to the Hungarian Patent Law became effective on January 1, 2012, partly to align national law with the requirements of the London Agreement, to which Hungary signed in 2011. A particular change affects the owners of European patents that are valid in Hungary and their right to collect compensation for damages when the patents are infringed.
European patent filers can now file the full Hungarian translation of the patent specification when the language of prosecution for the European patent was English. Furthermore, the amendment allows the voluntary subsequent filing of the Hungarian translation of the specification in a separate step for cases where the validation was made using the English description with the Hungarian claims. The date when the Hungarian translation is filed has an effect on the date from which damages can be claimed during patent infringement cases. It also means that the submission of a full translation of a European patent specification can put patent owners in advantageous positions when they are claiming damages in court.
Protecting the little guys
The rights of the patent owner when facing an infringer are defined in Article 35 of the Hungarian Patent Law, and of the several measures that the patent owner can claim from the court, the pecuniary measures are listed in Subsection (2)(e). This subsection states that the patent owner can claim compensation for restitution of enrichment—for example, the patent owner can be compensated for the money that the infringer saved in unpaid licence fees when committing patent infringement—from the infringer. However, this component of the pecuniary measures does not depend on whether a full translation of a patent specification has been filed.
Patent filers have further rights to claim compensation of damages, other than those mentioned in the previous paragraph, by relying
148 World Intellectual Property Review e-Digest 2012
on the Hungarian Civil Code. Article 35(3) of the Hungarian Patent Law refers to the general rules of the Hungarian Civil Code, which provides patent owners with the right to claim compensation for damages that are caused by patent infringement. According to the Civil Code, liability for damages is subjective in the sense that it leaves open the possibility that the infringer can be relieved from liability by proving that it acted in a manner that can be generally expected in the given situation. In other words, in Hungary, the obligation to pay compensation for damages depends on whether the damage is the result of the infringer’s actionable conduct. However, it is the infringer’s obligation to prove that it can be protected by this exemption. On the other hand, it is the patent owner’s burden to prove the level of damage caused by the infringer and the causal link between the damaging conduct and the occurrence of damage.
Interestingly, Article 35(3) of the Hungarian Patent Law provides infringers that do business in Hungary with a specifi c example of how they can use this exemption. It says that if a patent holder fails to submit the Hungarian translation of a European patent as required under Article 84(h) (normal validation by translating the claims only), and the infringer’s private or corporate domicile is located in Hungary, the infringement may not be imputed to the infringer (ie, the alleged infringer has not carried out any actionable conduct) until the patent holder satisfi es the requirements that are set out in Article 84(g), which makes fi ling a full translation necessary in a court dispute. T is is unless the patent holder can verify that the infringer should have understood the original text of the European patent in the absence of a translation.
In this situation, the infringer’s actionable conduct would not directly lead to the damage that was caused by the patent infringement. T is is because the infringer would not have access to the full Hungarian translation of the patent specifi cation, meaning that it could not learn the contents of the patent and so could not refrain from committing the patent infringement.
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