Applying for a preliminary injunction in patent matters
In Hungary, preliminary injunction (PI) applications in patent matters are governed by the Hungarian Code of Civil Procedure and the Patents Act. The patent holder can file an application for a PI to the competent court (Budapest Capital Regional Court) before or during the main proceedings, through inter partes or ex parte proceedings. For the proceedings to be conducted ex parte, it is necessary to demonstrate to the court that hearing the other party on the PI application could cause delays that would result in irreparable harm to the applicant.
If the alleged infringement continues, there is no time limit for requesting a PI. However, if less than six months have passed since the infringement began and less than sixty days since the applicant became aware of it, a more favourable rule applies regarding what the applicant must show in the application (see below).
There is no general obligation to provide security; however, at the request of the opposing party, the court may require the applicant to furnish security to cover any potential damages the opposing party may incur if the injunction is subsequently found to be unjustified.
Although sending a warning letter is not required, it is a common practice for the applicant to send a cease-and-desist letter to the opposing party before filing an application for a PI, requesting that the opposing party cease and desist from infringing activities.
Evidence required
In the PI application, the applicant must show that the PI is necessary to:
- prevent a change in the current situation that could not later be restored
- prevent the frustration of the applicant’s later exercise of rights
- avert an imminent disadvantage directly threatening the applicant
- address another particularly compelling reason.
The applicant must substantiate at least one of these conditions by setting out the facts supporting its existence with a sufficient degree of certainty. Any document or evidence that directly or indirectly supports the above may be submitted.
If less than six months have passed since the infringement began and less than sixty days since the applicant became aware of it, a PI is presumed necessary to protect the applicant’s rights, provided the applicant proves both that the invention is protected by a patent and that they are the patent holder.
Factors that the courts take into consideration
The court considers the merits of the case when deciding on a PI application, although the assessment of infringement has a narrower scope than in the main proceedings. While full proof is not required, the applicant must establish the infringement with a sufficient degree of certainty. The standard applied by the court is relatively strict; in practice, if the available information is insufficient to establish the required degree of certainty, the court will usually reject the application.
The court also considers whether the harm to the applicant outweighs the harm that the PI may cause to the opposing party. Commercial considerations, such as market disruption or the risk of irreparable damage, are particularly relevant in this balancing exercise. In addition, the court examines proportionality, including whether granting the PI would manifestly and significantly prejudice the public interest or the legitimate interests of third parties.
There is no requirement for the applicant to show the validity of the patent when applying for a PI. However, if the patent’s validity is challenged (for example, if it is subject to a European Patent Office (EPO) opposition), the court is more likely to conclude that the required standard of certainty has not been satisfied and may therefore deny the application.
If the defendant proves that, prior to the commencement of the infringement action, it initiated revocation proceedings before the Hungarian IP Office in respect of the same patent, the infringement action must be suspended until the revocation proceedings are finally concluded. In the case of infringement of a European patent validated in Hungary, the court may, in exceptional circumstances, suspend the infringement action if an opposition against the European patent is pending at the EPO. Such suspension of the main proceeding does not affect the enforceability of a PI. However, at the defendant’s request, the injunction must be set aside if the patent underlying the action has been revoked as a European patent valid in Hungary, or if the patent has been wholly or partially revoked to an extent that prevents infringement, either by a decision of the EPO, the Hungarian IP Office or by a first-instance court judgment.
Obtaining PIs
Under the statutory framework, courts are required to rule on an application for a PI within fifteen days. In practice, however, the process usually takes at least one to two months due to procedural steps and internal court administration.
PIs are generally applied across all patent sectors such as pharmaceuticals, telecommunications and electronics and the automotive industry amongst others.
Enforcement
If the court grants the PI, it is provisionally enforceable. The court shall issue a direct enforcement order requiring the opposing party to comply with the PI immediately. If the defendant does not comply, a bailiff will make a record of this and submit it to the court, which can, among other things, order the assistance of the police, impose a fine on the other party or authorise the bailiff to carry out the required act at the expense of the other party.
Appeal
An appeal against the PI can be filed with the Metropolitan Court of Appeal within fifteen days following the service of the decision granting the PI. Because the PI is provisionally enforceable, filing an appeal does not automatically suspend its effect. The Metropolitan Court of Appeal must decide on the appealed PI within fifteen days. However, in practice, the procedure takes at least one-two months because of the court's official acts and internal administration.
If, in the course of the main proceedings, the court subsequently establishes that the PI application was unfounded, the court shall, upon request, order the applicant to compensate the opposing party for the damage caused by the PI.
