Information to clients regarding the external attack against the IT system of the HIPO

As reported in the media, the IT system of the Hungarian Intellectual Property Office (HIPO) has recently been attacked, as a result of which patent documents that had not yet been published may have been acquired by the attacker. For this reason, the HIPO has intensified its information security measures, has taken the necessary steps to prevent further abuse and detect the perpetrators, and identified the patent applications potentially concerned. The applicants of such applications will be contacted by the HIPO by mail in order to manage the risks resulting from this event as well as to avoid any possible disadvantages on the side of applicants. We assure our clients who do not receive such notification that their patent applications do not fall within the scope of those affected by the attack.

It is essential to note that the HIPO did not disclose or in any way make available any patent documents prior to publication and neither have patent applications potentially affected by the malicious IT attack become disclosed so far.

Nonetheless, having regard to the possibility of unlawful disclosure of the applications concerned (and for the purposes of client information and the elimination of disadvantages resulting from disclosure), we have explored the potential effects thereof on the chances of obtaining protection. It can be established that the contents of the patent applications in question have not become disclosed due to the attack in a way that would either hinder or impede obtaining protection domestically or abroad.

I. Regarding domestic patenting, the unauthorized access to unpublished documents would not have any negative impact: in the procedure of granting a patent the HIPO examines requirements of protection as on the date of priority (i.e. the date of filing or the filing date of the prior foreign application specified in the priority document) and legal protection deriving from a granted patent is effective retroactively from the filing date of the application. The applications concerned therefore could have only got into wrong hands when the disclosure had no longer any adverse effect on novelty.

II. 1. Concerning foreign patenting opportunities, applications the content of which becomes unlawfully disclosed within the 12 month period open for claiming Paris Convention priority, do not suffer any disadvantage when assessing novelty because disclosure within the priority year does not destroy novelty. Consequently, a patent application may be filed anywhere abroad within one year from the priority date for the same invention irrespective of whether the content of the application was made public after the date of domestic application.

II. 2. Regarding patenting opportunities in foreign countries, applicants whose applications are unlawfully disclosed later than 12 months after the priority date, but before the publication planned after the lapse of 18 months and who wish to file a patent application abroad during this period shall not suffer any disadvantage with regard to the assessment of novelty due to the grace period rule, i.e. the unlawful disclosure of the application will not destroy novelty. Foreign applications filed without claiming priority are regarded as ‘first applications’ at the time of foreign filing, and the patent laws of most countries (including all of the most significant ones) contain the legal institution of the grace period.

Under this rule, a disclosure of the invention that occurred no earlier than 6 months (12 in some countries) preceding the priority date (in this case the date of the foreign application) shall not be taken into consideration as prior art at the assessment of novelty if such disclosure was due to an abuse of the rights of the applicant or his predecessor in title. In the case of the applications concerned, there is exactly a period of 6 months between the end of the Paris Convention priority year and the date of the required publication, thus every applicant may take advantage of the grace period in foreign patent prosecution even in case of unlawful disclosure of the application. Should clients wish to make use of the grace period abroad, the HIPO is prepared to certify that the disclosure occurred as the result of abuse.

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The HIPO offers a consultation service for all clients concerned through the e-mail address konzultacio [169] hipo [961] gov [961] hu . You are welcome to ask any questions through correspondence sent to this address and you may also request a personal consultation regarding the incident.