Chapter 8
Trade, economic and legal constraints on change
8.1.
There are various practical and legal constraints on the extent to which changes can be made to the present system of registering patents in Hong Kong. There are also economic and trade factors which limit the scope for reform.
Background
8.2.
One of the fundamentals underlying any reform of Hong Kong's patent system is the fact that the continuity of a separate patent system in Hong Kong is enshrined in the Basic Law, which we have already referred to in chapter 6, Article 139 of which provides:
"the Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on science and technology and protect by law achievements in scientific and technological research, patents, discoveries and inventions."
The desirability of an evolutionary approach
8.3.
Perhaps the most important feature of any effective patent system is the high degree of certainty of protection that it provides. Certainty derives from a system that grants or recognises a patent that is fully examined and respected and that enables the patent to be effectively enforced. The need for certainty is discussed earlier in chapter 4. The existing system in Hong Kong does provide a high degree of certainty, and we do not wish to recommend any radical or revolutionary system that would jeopardise that certainty. Instead we favour an evolutionary approach. This entails retaining as many of the attractive features of the existing system as possible.
Rights and obligations under International Conventions
8.4.
Hong Kong's international obligations are examined in detail in chapter 14. Hong Kong benefits from participation in the relevant international organisations and adherence to the appropriate international conventions. However these obligations do limit the scope for change.
8.5.
The United Kingdom is a member of the Paris Convention for the Protection of Industrial Property (the Paris Convention) and of the Patent Co-operation Treaty (PCT). The Paris Convention was applied to Hong Kong in 1977. The Paris Convention provides for national treatment of patent applications and priority of application to the applicant who is first to file within the treaty territory. The national treatment principle requires that each party to the treaty give the same patent protection to nationals of the other parties as it gives to its own nationals.
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