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19 November 2012
The claimants in this case (BDT 2011/4/60) were inventors of well-boring equipment and technology that was patented and exploited by their employer. A third party requested that the patent be annulled and this request was granted.
The claimants claimed for a licence fee, as the defendant had used their invention as know-how under Section 86 of the Civil Code. The first instance court allowed the claim, holding that the technology described in the former patent doubled the water yield. As a result, the defendant was forced to pay for the use of this know-how.
The defendant filed an appeal at the Metropolitan Court of Appeal that referred to, among other things, the fact that the claim had lapsed and the claimants had not proven that the defendant used the patented process.
The court allowed the appeal and dismissed the claim, stating that Section 86 of the Civil Code provides for secrecy of know-how. Such secrecy did not exist after publication of the patent, whereby this know-how became publicly available. Moreover, as the patent was annulled with retroactive effect, it had to be considered as if it had never existed.
Based on Section 86(3) of the code, protection can be granted for know-how if it can be widely exploited and is secret. This provision is a peculiarity of Hungarian law (know-how is protected under competition law in most jurisdictions). As a result, the originator of the knowledge can be awarded a fee.
Section 2(2) of the Patent Act ruling on novelty provides that the technical solution applied for cannot be publicly known. Such know-how is usually divulged through print publication. In this case the printed patent specification annulled the patent with retroactive effect, as such disclosure was considered prejudicial to novelty.
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