JURISDICTION REPORT: HUNGARY
HOW BROADLY SHOULD COURTS INTERPRET PATENT CLAIMS?
Michael Lantos Danubia Law Office LLC
A German company has a Hungarian patent that covers a fuel gun with a removable rear display surface. Tis consists of two planar surfaces following the plane of the barrel and handle portions of the fuel gun, which close to an obtuse angle with each other, and the planar surfaces meet along an edge line. Te two planar surfaces are ideal to host advertisements or commercially important information.
A British supplier of fuel guns has a different design, in which an arced uniform display surface is arranged at the rear side of the fuel gun. A Hungarian gas company has used the British design at its petrol stations. Te German company has sued the Hungarian user for patent infringement based on fairly broad patent claims, the scope of which extended over the existence of the two planar surface parts that meet along an edge.
Te patent specification included examples showing only planar display surfaces meeting along an edge line, and the specification was silent on any possible use other than the one described and illustrated.
Te Hungarian company and its British supplier have mutually filed a nullity action against the Hungarian patent, and have requested limitation of the independent claims to the design actually included and exemplified in the specification. Tey also suggested that the fact that the inclined planar surfaces close to an edge be included in the claims.
Te patentee stated that the specific examples were made as showing preferred embodiments only, and the applicant was entitled to a broader protection. In fact, the specification did not comprise any hint that display surfaces other than the exemplified inclined planar surfaces could be used.
The case was decided by the Hungarian Intellectual Property Office (HIPO), which substantially accepted the limitation suggested by the petitioner and inserted the limitation that the two mutually inclined planar surfaces meet along a contact line.
Te patentee appealed to the Metropolitan Court and alleged that a person skilled in the art can easily make surfaces other than inclined surfaces, and the design provided an increased display area usable for placing information. From that point of view the question of whether the increased surface consists of two inclined planar surfaces or a single slightly arced surface, had no significance. Te Metropolitan Court sustained HIPO’s decision and added that the original disclosure did not comprise any example other than the planar design, while in the wording of the specification the possibility of using a different display surface was not even mentioned. Te patentee appealed to the Metropolitan Appeal Court and this court upheld the previous decisions with practically the same arguments.
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“THE PATENTEE CLAIMED THAT A PATENTEE IS ENTITLED TO BROAD PROTECTION AND THE CLAIMS CANNOT BE LIMITED TO THE SPECIFIC EXAMPLES PROVIDED.”
The patentee filed a request for supervision to the Supreme Court of Hungary and criticised the decisions of the lower level courts. It claimed that a patentee is entitled to broad protection and the claims cannot be limited to the specific examples provided. The broad claims were easily and readily realisable by a person skilled in the art. The patentee added further that
the specification also complied with Patent Cooperation Treaty requirements.
Te Supreme Court sustained the decision of the lower level courts. While in general it’s true that a patentee is entitled to the broadest possible protection, there is a rule that the claims must be supported by the disclosure, and in this case that didn’t happen. Te different requirements in the patent law cannot be mixed or interchanged.
During the international phase a search was made and it was not the task of the authorities to examine whether the claims were fully supported by the examples or not. Furthermore, if a specification meets the requirement of having an enabling disclosure, it is a different requirement from the one that the claims cannot extend beyond the teaching of the disclosure.
Te Supreme Court added a procedural note: the term for the parties to turn to the Supreme Court with a request for supervision is two months from the delivery of the decision of the lower instance court. Here the patentee filed the petition in time but submitted its arguments on the substance of the petition later in a separate writ. Te Supreme Court pointed out that a petition must not just be formal, it also has to comprise the grounds of the alleged injury of law that the decision of the lower instance court has committed. Without substantiating this in the petition it was de facto invalid, and the decision was made by the Supreme Court only to make this requirement public and to clarify the situation.
Michael Lantos is deputy managing partner at Danubia Law Office LLC. He can be contacted at:
lantos@danubia.hu
World Intellectual Property Review September/October 2012 103
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