8.17.
Overseas databases are predominantly in English. Indeed, English translations
of Japanese and Chinese patent abstracts are available in the databases.
8.18.
In summary, the use of English is well recognised and accepted internationally. In Hong Kong patent practitioners and most inventors are likely to be familiar with English in their field. For these reasons we accept that the primary language to be used in any proposed new patent system will have to be English.
Common law principles
8.19.
We recognise the need to retain a system based on common law as opposed to civil law since the common law system has been the basis of our patent law from the outset and it is the basis upon which the whole legal system in Hong Kong will continue to rest. Hong Kong is unlikely to generate large numbers of patent applications. Based on past records, few disputed patent cases have reached the courts nor are likely to, and hardly any patent litigation has come to full trial, or is likely to, in Hong Kong. This means that the development of domestic case law will be slow. In all common law jurisdictions considerable guidance is derived from decisions from other common law jurisdictions and in particular from the House of Lords and the Privy Council in the United Kingdom and from the Federal Court and the High Court in Australia. It would be an advantage if any new law retained legal principles consistent with those of other common law jurisdictions so that their precedents could be followed.
Resource Implications
Funding
8.20.
Any proposals that we make must compete for resources with the Government's other projects. Accordingly, our recommendations are made on the premise that the new patent system should not impose an unnecessary or excessive burden on the Hong Kong taxpayer. The start-up costs for any new system may require Government funding but in the medium to long-term the costs of administering the system should be fully met by users. In an economy that generates only a small number of patent applications it is doubtful that a substantial initial outlay could be recouped even in the long-term. The resources required by different systems are summarised in paragraphs 4.40 to 4.46 and 5.7
and 5.8.
Costs must not discourage use
8.21.
Although it is necessary that in the medium to long-term the costs of administering the system should be fully met by users, we consider that the costs must not be so high as to discourage registration. This would clearly be self defeating and would not be in the best interest of Hong Kong.
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