Proceedings of the Hungarian Group 18. [antikvár]

Dr. GABOR MIKOFALVP Issues of Substantive Law Concerning Patent Infringement Suits 1. Concept of Patent Infringement The concept of patent infringement is laid down in Sec. 26(1) of the Hungarian Patents Act (1969). Accordingly, any person who unlawfully exploits an invention under patent protection commits patent infringement. This definition, due to its simplicity and to the introduction of the categories of "unlawfulness" and "exploitation" meant a step forward as compared with the former (1895) text though, in my opinion, the definition in the present Act is not precise. My objection is that it does not reflect the privileged position of the patentee, it does not exclude him from the range of person "coming into question" as infringers. Naturally, this problem is raised only if the patentee grants an exclusive licence of exploitation of the invention to a third party. However, I am of the opinion that the exploitation of the invention by the patentee cannot be described as patent infringement in this case, either. This conduct of the patentee realizes the factors constituting patent infringement since such an activity of the patentee, following the exclusive licensing of the right of exploitation, qualifies beyond dispute as unlawful exploitation of the patented invention, i.e. as formal patent infringement. This legal institution is, however, basically destined for safeguarding the interest of the patentee in the invention and the Patents Act does not grant to anybody any right of action for infringement against the patentee, as under Sec. 27(2) the user may institute proceedings only against third parties. This is also supported by the 5