patent seems unnecessarily rigid compared to the current
system where applicants need do nothing in Hong Kong until after their UK or EP (UK) patent is granted. However, we can also see the advantage for the applicant in filing early in
Hong Kong. The proposed system could be made more flexible by allowing applications in Hong Kong to be filed at any time
after the EP application has been made up to six months after
grant of the EP patent. (At the limit, of course, it would be
necessary to register the application and apply for grant in Hong Kong at the same time.) Clearly those who do not apply
early in Hong Kong risk loss of damages for any infringement
occurring in Hong Kong between the making of the EP patent
application and grant of a patent in Hong Kong.
PUBLICATION OF THE APPLICATION IN HONG KONG
5. We would welcome some clarification of the proposed
procedure at the Hong Kong application or "request to record"
stage. It appears from the PSC report that, although an
abstract and drawings are to be published, the abstract may not be in English and the full application, which includes the specification of the EP application, will not be open to public inspection. The draft consultation paper appears to recognise the problem of specifications, abstracts &c not in English by stipulating the need for translations, but it would seem desirable that the full EP application, including the specification, should be available for public inspection when the Hong Kong request to record is published. This would seem to be essential to ensure fairness to potential infringers if
full rights are to commence from publication of the request to
record (paragraph 12 (p) of the draft consultation paper). (We
assume that rights accruing from the date of publication of
the request to record are limited by the scope of the claims
of the application rather than those of the granted patent.)