Monday, 8 August 2011

Patent litigation as a game: the case of Hungary

"Footnotes to the patent game: how does homo ludens enforce patent rights in Hungary?" is the challenging title of a quite provocative article by József Tálas (Sar & Partners) which will be published in a forthcoming issue of the Journal of Intellectual Property Law & Practice (JIPLP) and which has been available online to JIPLP subscribers since 29 July. According to its abstract,
"Legal context: Can we imagine the patent case as a game? As Johann Huizinga, the Dutch historian and cultural theorist writes, “The lawsuit can be regarded as a game of chance, a contest or a verbal battle.” According to Huizinga, science is actually a game itself, thus scientific recognition is nothing more than the solution of a task of in a game. In this context, a patent suit is nothing more than the playing of a game.

Key points and practical significance: In our view in an ideal world the enforcement of patent rights should be a game of chess, where all the information is available to both players and the rules are simple and unquestionable. All players accept, understand and interpret the rules the same way. The referee has no role to play. However presently the enforcement of patent rights in Europe feels like playing poker with a strong element of gambling. In the course of current judicial proceedings in Hungary, in many cases, the advocate may even perceive the gambling element in the game of the lawsuit as dominant".
Non-subscribers to JIPLP can access this article via the Advance Access link on the journal's website, on a pay-to-access basis.

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