Hungarian model captures Kat's heart, almost ...

Resisting the temptation to rush out into the street and kiss the first Hungarian he sees, the IPKat is currently rejoicing at some exciting news. As Kats go, not every feline has a position regarding the common-or-garden utility model. There's a famous fairy tale about the abused, poverty-stricken Cinderella and her two ugly sisters (here). Strange as it seems, the utility model appears to possess the characteristics of both. Like Cinderella, the utility model is a right that never gets invited to the fun events (when did you last go off to a fancy hotel to attend a conference or seminar on utility models?), while in the eyes of her detractors she is also an ugly sister, an ill-proportioned hybrid of other IP rights and the aspirations that accompany them.

This is why the IPKat is so thrilled that utility models have suddenly occupied centre-stage on the Curia website today with news that the Hungarian Fővárosi Bíróság (step up, Tibor Gold, and tell us how to pronounce those precious syllables) has referred some questions to the Court of Justice of the European Union for a preliminary ruling in Case C-180/11 Bericap Záródástechnikai Bt. v Plastinnova 2000 Kft., Szellemi Tulajdon Nemzeti Hivatala intervening. In case you're wondering, the questions posed of Europe's finest are as follows:

"1. Is it consistent with European Union law if, during proceedings to amend a decision relating to an application for invalidation of a utility model, the measures, procedures and legal remedies are applied in such a way that: the national court is not bound by the claims or statements with legal effect made by the parties, and the court is entitled to order of its own motion any evidence that it may deem necessary? [Sudden thought: these aren't enforcement proceedings, so the question can't be anything to do with the IP Enforcement Directive and, while the European Patent Convention makes mention of utility models, the interpretation of its provisions doesn't fall within the Court's normal activities. And it can't be an oblique allusion to TRIPS, surely, since that Agreement doesn't mention them, does it? And that just leaves the Paris Convention on the Protection of Industrial Property, which does mention them but doesn't bind its Members to anything at the level of detail of this question. So what is going on? Can any kind reader explain?]

2. Is it consistent with European Union law if, during proceedings to amend a decision relating to an application for invalidation of a utility model, the measures, procedures and legal remedies are applied in such a way that: the national court, when making its decision, is not bound by the administrative decision made in relation to the application for invalidation, or by the findings established therein, nor, specifically, by the grounds for invalidation indicated during the administrative procedure, or by the declarations, assertions or evidence submitted during the administrative procedure? [Merpel has just checked the Curia website. This reference is categorised under 'Intellectual Property' and not under 'Justice and Home Affairs', 'Procedure' or 'Principles of Community Law']

3. Is it consistent with European Union law if, during proceedings to amend a decision relating to a further application aimed at invalidating a utility model, the measures, procedures and legal remedies are applied in such a way that: the national court excludes any evidence submitted with the further application, including evidence relating to the state of the art, to which reference was already made in connection with the previous application for invalidation of a utility model?" [Oh well, it was fun while it lasted ...]

Europe according to Hungarians here