Chapter 9
Recommended patent system
9.1.
In this chapter we summarise the discussion in the preceding chapters and we make our recommendations for a patent system.
Summary from other chapters
Introduction
9.2.
Patent law is technical and complex but relatively settled. A considerable body of law has developed on the subject in common law jurisdictions throughout the world (paragraph 3.2).
9.3.
Patents are territorial. Protection extends only within the territory in which the patent is granted. The Paris Convention establishes the principle of national treatment and a system of priority rights. (paragraphs 3.25 to 3.28 and 8.5).
9.4.
The Patent Cooperation Treaty enables applicants to make an "international" application to one patent office designating those countries in which protection is sought, and the applicants then have a period of time in which to decide which applications to pursue (paragraphs 4.55 to 4.58 and 8.6 to 8.8).
9.5.
Inventors benefit if the jurisdiction in which they operate is subject to these treaties (paragraph 8.4).
9.6.
Any patent system should provide for the resolution of issues such as validity of patents as simply as possible (paragraphs 4.3).
Patent systems
9.7.
Non-examination systems are simple to operate, but may well allow abuse and impose a strain on the recourses of the judiciary without giving certainty to the patent holder (paragraphs 4.6 to 4.13).
9.8.
Examination systems where search and examination are carried out prior to grant prevent abuse and give a higher degree of certainty to patent holders. However, they are expensive as they require considerable investment in terms of expert personnel and other resources. In addition they can be slow (paragraphs 4.15 to 4.46).
9.9.
A system where search and examination is contracted out and a system of original grant using the PCT would eliminate some of the problems, but would still require considerable staffing and other resources and would leave Hong Kong with lack of control over costs and time periods (paragraphs 4.47 to 4.58).
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