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Law No XXXVIII of 1991 on Utility Model Protection
| Law No. XXXVIII of 1991 on Utility Model Protection | |
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| (as last amended by Law No. XXXIII of 1995 on the Protection of Inventions) | |
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| Part I
Protectable Utility Models | |
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| (1) Utility model protection shall be granted to any solution relating to the configuration or construction of an article or to the arrangement of parts thereof (hereinafter referred to as “a utility model”) which is new, involves an inventive step and is susceptible of industrial application. | |
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| (a) the aesthetic design of an article; | |
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| (b) plant varieties and animal breeds. | |
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| (1) The solution for which utility model protection is sought shall be considered new if it does not form part of the state of the art. | |
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| (2) The state of the art shall be held to comprise everything made available to the public by means of a written description or by public use in the country before the date of priority. | |
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| (3) Any patent application or utility model application that has an earlier date of priority and has been announced by the Hungarian Patent Office–in the course of publication or the grant of patent or utility model protection–later than the priority date of the utility model application shall also be deemed to form part of the state of the art. | |
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| (1) The utility model involves an inventive step if it is not obvious to a skilled craftsman as compared with the state of the art. | |
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| Art. 4. The utility model shall be considered susceptible of industrial application if it can be made or used in any kind of industry, including agriculture. | |
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| (1) The applicant shall be granted protection for his utility model if | |
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| (a) the utility model satisfies the requirements prescribed in Article 1(2); | |
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| (b) the application complies with the formal requirements prescribed by this Law. | |
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| (2) The utility model may not be granted protection if its use would be contrary to law or public morality, unless merely the trade in such products is restricted by law. | |
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| Inventor of the Utility Model and
Right to Utility Model Protection | |
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| Art. 6. The inventor of the utility model is the person who has created the utility model. | |
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| (1) The right to utility model protection shall belong to the inventor or his successor in title. | |
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| (2) If two or more persons have created a utility model jointly, the right to utility model protection shall belong jointly to them or to their successors in title. If two or more persons have created the utility model independently of each other, the right to utility model protection shall belong to the inventor or his successor in title who files the application with the earliest date of priority with the Hungarian Patent Office. | |
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| Art. 8. The provisions on service and employee inventions shall apply mutatis mutandis to utility models created by persons working in employment or in the civil service, by professional members of the armed forces and of the police–persons in a service relationship–or by members of a cooperative working within the framework of a legal relationship of an employment nature. | |
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| Establishment and Duration of Protection | |
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| Art. 10. Utility model protection comes into existence through the grant of the said protection; the effect of protection shall be retroactive to the date of application. | |
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| (1) Utility model protection shall have a duration of 10 years from the filing date of the application. | |
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| (2) During the period of utility model protection annual fees, to be fixed by special regulation, shall be payable. | |
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| Effects, Scope and Limitations of Protection | |
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| Art. 12. By virtue of utility model protection, the owner of the said protection shall have, as provided for by legislation, the exclusive right to exploit the utility model or to license another person to exploit it. The exclusive right of exploitation shall include the manufacture, use, importation within the framework of economic activity or marketing of the subject matter of the utility model. | |
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| (1) The scope of utility model protection shall be determined by the claims. Claims may be interpreted only on the basis of the description and drawings. | |
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| (2) Utility model protection shall cover a product embodying all the elements of the claim, or in which one or more elements of the claim are replaced by an equivalent. | |
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| (3) Entitlement to remuneration deriving from utility model protection shall not be affected if one or more elements of the claim are replaced in the product by improved elements made available to the exploiter by the owner of the utility model protection or by the inventor of the utility model. | |
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| Art. 14. Rights deriving from a utility model and its protection, with the exception of the personal rights of the inventor, may be transferred, assigned and pledged. | |
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| Art. 15. Under an exploitation contract (license contract for utility model protection), the owner of the utility model licenses the exploitation of the utility model to an exploiter who in exchange is obliged to pay royalties. | |
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| (1) If a protected utility model cannot be exploited without infringing the protection of another utility model, a compulsory license shall be granted for the said other utility model to the extent necessary for exploitation. | |
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| (2) If a patented invention cannot be exploited without infringing a protected utility model, a compulsory license shall be granted for the said utility model to the extent necessary for exploitation. | |
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| (1) With respect to succession in title and exploitation contracts, the provisions of the Patent Law shall applymutatis mutandis. | |
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| (2) With respect to the compulsory licensing of a protected utility model and the limitations on utility model protection, the provisions of the Patent Law and of its implementing decree concerning the compulsory licensing of a patent, the exploitation thereof and the limitations on patent protection shall apply mutatis mutandis. | |
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| (3) With respect to the joint utility model application and joint utility model protection, the provisions of the Patent Law and of its implementing decree that concern the joint patent application and joint patent shall apply mutatis mutandis. | |
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| Part II
Utility Model Infringement and
Infringement of Utility Model Protection | |
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| Utility Model Infringement | |
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| Art. 18. Where the subject matter of a utility model application or of a utility model has been unlawfully taken from another person, the injured party or his successor in title may claim partial or total assignment of the utility model application or of the utility model protection. | |
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| Infringement of Utility Model Protection | |
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| (1) Any person who unlawfully exploits a protected utility model commits an infringement of the utility model protection. | |
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| (2) The owner of the utility model protection may have recourse to the same civil remedies against the infringer as a patentee, by virtue of the Patent Law, may have recourse to against the infringer of his patent. | |
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| (3) In the event of the infringement of utility model protection, the rights of the exploiter authorized by the owner shall be determined by the provisions of the Patent Law. | |
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| Decision of Non-Infringement | |
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| (1) Any person who fears that proceedings for infringement of utility model protection will be instituted against him may, prior to the institution of such proceedings, request a decision ruling that the product manufactured or to be manufactured by him does not infringe a protected utility model specified by him. | |
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| (2) A final decision of non-infringement bars the institution, by virtue of the utility model protection concerned, of infringement proceedings in respect of the same product. | |
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| Part III
Lapse of Utility Model Protection | |
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| Cases of Lapse of Utility Model Protection | |
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| (1) Utility model protection shall lapse: | |
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| (a) when the period of protection expires, on the day following the date of expiration; | |
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| (b) if the annual fees have not been paid, on the day following the due date; | |
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| (c) if the owner of the utility model protection surrenders the protection, on the day following receipt of the surrender, or on an earlier date specified by the person surrendering the protection; | |
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| (d) if the utility model protection is declared null and void, with retroactive effect to the filing date of the application. | |
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| (2) Utility model protection shall be considered lapsed, with retroactive effect to its filing date, when a patent is granted for a patent application | |
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| (a) derived from the utility model application; | |
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| (b) from which the utility model application has been derived. | |
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| Restoration of Utility Model Protection | |
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| Art. 22. If utility model protection has lapsed by reason of non-payment of annual fees, the Hungarian Patent Office shall, on request, restore the protection if the non-payment occurred for a justifiable reason. | |
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| Surrender of Utility Model Protection | |
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| (1) The owner named in the Utility Model Register may surrender utility model protection by written declaration addressed to the Hungarian Patent Office. If the surrender affects the rights of third parties deriving from legislation, from decisions of an authority or from a license contract recorded in the Utility Model Register, or if proceedings are recorded in the Utility Model Register, it shall take effect only with the consent of the parties concerned. | |
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| (2) It shall also be possible to surrender certain claims of the utility model protection. | |
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| Nullity of Utility Model Protection | |
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| (1) Utility model protection shall be declared null and void if | |
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| (a) the subject matter of the utility model does not satisfy the requirements laid down in
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| (b) the description does not satisfy the legal requirements (Article 32). | |
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| (2) Where conditions determining nullity exist only in part, the utility model protection shall be limited accordingly. | |
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| Art. 25. If utility model protection lapses with retroactive effect to its establishment, only the portion of the remuneration collected in good faith by the owner of utility model protection or the inventor of the utility model that was not covered by the benefits derived from the exploitation of the utility model may be reclaimed. | |
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| Part IV
Procedures Before the Hungarian Patent Office
in Utility Model Matters | |
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| Competence of the Hungarian Patent Office | |
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| Art. 26. The Hungarian Patent Office shall be competent to | |
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| (a) grant utility model protection; | |
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| (b) declare that utility model protection has lapsed, or restore it; | |
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| (c) declare utility model protection null and void; | |
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| (d) declare non-infringement; | |
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| (e) interpret the description of the utility model; | |
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| (f) deal with matters concerning the maintenance and recording of utility model protection. | |
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| Application of the General Provisions
on Administrative Procedure | |
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| (1) The Hungarian Patent Office shall proceed in utility model matters, with the exceptions laid down in this Law, by applying the general provisions of administrative procedure. | |
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| (2) The Hungarian Patent Office may retract or modify its substantive decisions on utility model matters only on the basis of a request for review and until its transmittal to the court. Its decisions may not be invalidated or changed by a supervisory authority; they shall be without appeal. | |
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| (3) Decisions on utility model matters taken by the Hungarian Patent Office may be changed by the court, in conformity with the provisions of Article 37. | |
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| (1) For the procedure of the Hungarian Patent Office in utility model matters, the general provisions of the Patent Law concerning the procedure of the Hungarian Patent Office in patent matters shall apply mutatis mutandis. | |
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| (2) A utility model application shall be considered withdrawn when a patent is granted, by a final decision, for a patent application | |
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| (a) derived from the utility model application; | |
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| (b) from which the utility model application has been derived. | |
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| Utility Model Application | |
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| (1) The procedure for the grant of utility model protection shall begin with the filing of an application with the Hungarian Patent Office. | |
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| (2) Utility model applications shall contain a request, a description of the utility model and other relevant documents. | |
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| (3) Detailed formal requirements to be complied with in applications shall be laid down by special regulation. | |
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| Derivation From Patent Application | |
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| (1) Where the applicant has already filed a patent application at an earlier date, he may, in his declaration of priority concerning a utility model application for the same subject matter, claim, in addition to the filing date of the patent application, the right of priority relating to the said application. | |
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| (2) The priority and filing dates of the patent application shall apply only by derivation to the utility model application if the application and declaration of priority are received by the Hungarian Patent Office | |
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| (a) in the course of the patent application procedure up to the date on which the decision on the grant of a patent becomes final, or within three months from the date on which the decision rejecting the patent application becomes final, or | |
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| (b) within three months from the date on which the decision declaring the patent null and void for lack of novelty becomes final. | |
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| (3) The derivation of a utility model application shall be admissible only within 10 years from the filing date of the patent application. | |
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| Derivation From Industrial Design Application | |
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| (1) Where the applicant has already filed an industrial design application at an earlier date, he may, in his declaration of priority concerning a utility model application for the same subject matter, claim, in addition to the filing date of the industrial design application, the right of priority relating to the said application. | |
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| (2) The priority and filing dates of the industrial design application shall apply only by derivation to the utility model application if the application and declaration of priority are received by the Hungarian Patent Office in the course of the industrial design application procedure up to the date on which the decision on the grant of industrial design protection becomes final or within three months from the date on which the decision rejecting the industrial design application becomes final. | |
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| (3) The derivation of a utility model application shall be admissible only within 10 years from the filing date of the industrial design application. | |
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| (1) The description shall be such that a skilled craftsman may use it and the drawings to execute the subject matter of the utility model. | |
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| (2) At the end of the description one or more claims shall define, with reference to other parts of the description, the extent of the utility model protection applied for. | |
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| Art. 33. In any utility model application, protection may only be sought for a single utility model. | |
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| Examination of the Utility Model Application | |
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| (1) The Hungarian Patent Office shall make an examination of the utility model application in order to ascertain whether it complies with the requirements prescribed in (4). | |
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| Art. 35. The Hungarian Patent Office shall examine the substance of the utility model application with regard to the following points: | |
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| (a) whether the subject matter of the application is a utility model; | |
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| (b) whether the subject matter of the application is susceptible of industrial application; | |
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| (c) whether the subject matter of the application is excluded from utility model protection underArticle 5(2); | |
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| (d) whether the application meets the requirement of unity; | |
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| (e) whether the utility model qualifies for the priority claimed. | |
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| Procedure in Utility Model Matters | |
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| (1) For the priority, examination, amendment and division of utility model protection, the publication of data concerning utility model applications, declarations of expiration, restoration and the nullity of utility model protection, as well as the interpretation of the description and declaration of non-infringement, the provisions of the Patent Law shall apply mutatis mutandis. | |
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| (2) For the grant of utility model protection, the provisions of the Patent Law shall apply, subject to the description and drawings of the utility model not being printed. After announcement of the grant of utility model protection, any person may inspect the utility model application and on payment obtain copies of it. | |
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| Part V
Court Procedure in Utility Model
Matters and Litigation | |
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| Review of Decisions Taken by
the Hungarian Patent Office | |
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| (1) On request, the court may review decisions of the Hungarian Patent Office taken with regard to the following: | |
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| (a) grant of utility model protection; | |
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| (b) declaration of lapse of utility model protection, or restoration of such protection; | |
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| (c) declaration of nullity of utility model protection; | |
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| (d) declaration of non-infringement. | |
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| (2) Any person who took part as a party in the procedure before the Hungarian Patent Office may request that the decision be reviewed. Review of the decision on the revocation of utility model protection may be requested by the inventor of the employee utility model as well. Review of the decision on the grant and revocation of utility model protection may be requested by the public prosecutor under Article 5(2). | |
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| (3) The period within which the request for review may be submitted shall be 30 days from the day on which the party was notified of the decision. | |
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| (4) The request shall be submitted to the Hungarian Patent Office, which shall forward it to the court with the documents pertaining to the utility model concerned within 15 days. | |
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| (5) Legislation concerning court procedures for the review of decisions taken by the Hungarian Patent Office in patent matters shall apply to court procedures for the review of decisions taken by the Hungarian Patent Office in utility model matters. | |
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| (1) Utility model litigation shall consist of: | |
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| (a) court proceedings concerning the grant, modification and revocation of a compulsory license; | |
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| (b) court proceedings concerning the fixing of the amount of damages for exploitation; | |
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| (c) court proceedings concerning the establishment of a right of prior use; | |
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| (d) actions for infringement. | |
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| (2) The provisions on patent litigation shall apply to utility model litigation. | |
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| (3) In any other utility model litigation not mentioned in
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| Amendment of the Patent Law | |
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| Amendment of the Decree-Law on the Protection of Industrial Designs | |
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“Derivation From Utility Model Application
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| (1) Where the applicant has already filed a utility model application at an earlier date, he may, in his declaration of priority concerning an industrial design application for the same subject matter, claim, in addition to the filing date of the utility model application, the right of priority relating to the said application. | |
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| (2) The priority and filing dates of the utility model application shall apply only by derivation to the industrial design application if the application and declaration of priority are received by the Hungarian Patent Office in the course of the utility model application procedure and up to the date of the decision on the grant of utility model protection becoming final or within three months of the date of the decision rejecting the utility model application becoming final. | |
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| (3) The derivation of an industrial design application shall be admissible only within 10 years of the filing date of the utility model application.” | |
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| Amendment of the Implementing Decree
of the Patent Law | |
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| (1) This Law shall enter into force on January 1, 1992. | |
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| (2) The Minister of Justice shall be authorized to issue, in concert with the President of the Hungarian Patent Office, detailed rules on the formal requirements for utility model applications. |
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