Footnotes to the patent game: how does homo ludens enforce patent rights in Hungary?

Abstract

Can we imagine the patent case as a play? 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 play itself, thus scientific recognition is nothing more than the solution of a task of a play. In this context, a patent suit is nothing more than a play played with the play (in other words a ‘Game of the Game’). 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 play of the lawsuit as dominant.