6.12.
The validity of a patent and allegations of infringement are resolved by litigation between the parties in the civil courts. In common with most patent systems, there are no criminal sanctions available in Hong Kong.
Advantages of the present system
6.13.
Patents registered in Hong Kong are strong and well respected. This is because under the present system Hong Kong registers only patents granted by the United Kingdom and European Patent Offices. The strength of the European patent is evidenced by the low proportion of oppositions to granted patents. The figure of about 10% is quoted in the speeches and articles published by the European Patent Organisation in 1988 on the occasion of the tenth anniversary of the entry into force of the European Patent Convention. Figures given by the European Patent Organisation are particularly relevant as European patents (UK) form an increasingly high percentage of the patents registered in Hong Kong.
Hong Kong's present system dispenses with the need to carry out a substantive examination of the patent in Hong Kong. The system does not require a complement of staff in Hong Kong skilled in scientific and technical fields and is therefore cheaper for government to operate than a system which requires search and examination in Hong Kong.
6.15.
A further advantage of the present system to the businessman who has already obtained his patent in the United Kingdom, or in the European Patent Office by designating the United Kingdom, is that he does not have to apply for a patent in Hong Kong which is then subjected to fresh search and examination.
6.14.
Inadequacies of Hong Kong's present system for registering patents
6.16.
Constitutional, legal and trade considerations are taken into account in the following discussion on the inadequacies of Hong Kong's present system for registering patents.
Constitutional changes
6.17.
British sovereignty over Hong Kong will be relinquished to China in 1997. Hong Kong's present system for registering patents derives from and is dependent on United Kingdom patent law. It would be inappropriate for Hong Kong's patent law to continue to be dependent on that of the United Kingdom after 1997. Consequently, Hong Kong will have to enact its own legislation and devise an appropriate system to replace the existing arrangements.
6.18.
The Sino-British Joint Declaration declares China's basic policies regarding the Hong Kong Special Administrative Region on China's resumption of sovereignty. These policies are stipulated in the Basic Law of the Hong Kong Special Administrative Region adopted by the National People's Congress of the People's Republic of China. The Joint Declaration and the Basic Law provide for a separate legal system in the Hong Kong Special Administrative Region. Article 139 of the Basic Law requires the Government of the Hong Kong Special Administrative Region to protect by law achievements in scientific and technological research, patents, discoveries and inventions.
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