Allowing the registration of all European patents also has the advantage of allowing any United Kingdom invention to continue to be registered in Hong Kong, so long as that patent was sought via the European patent system rather than the UK Patent Office. The coverage of the EPO is also likely to expand in future as more countries become members of the EPC.
9.35.
The time taken to obtain an European patent is normally about four years from the priority date and even search reports on applications to the EPO take up to two years to obtain from the priority date. Our enquiries indicate that these time periods are not likely to be reduced in the foreseeable future. This is recognised as a disadvantage of registering patents granted by the EPO.
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Recommendations
9.36.
We recognize that Hong Kong should continue to have a strong and well respected patent system. For this reason we are unanimous in recommending that -
9.37.
Hong Kong should have its own legislation and administrative system to provide for the grant and protection of patents in Hong Kong.
such legislation should provide for the grant of domestic patents after registering patents granted by the European Patent Office and that such patents should have a life independent of the original European patent, and should be capable of being tested for validity and infringement and of being rectified, amended or revoked according to such law in Hong Kong, independently of action taken elsewhere; and
that Hong Kong should have a Registrar of Patents who should continue to be the Director of Intellectual Property and that the new system should continue to be administered by the Hong Kong Patents Registry as part of the Intellectual Property Department.
In para. 5.51 we have noted the special relationship that exists between Hong Kong and China. We have also noted that although there are difficulties attached to registering patents from more than one system a number of recent developments could assist in overcoming to some extent these difficulties. We also noted in paras. 5.52 and 5.53 the administrative difficulties of registering patents from two systems and the particular difficulties of setting up a new system on this basis.
9.38.
We consider that, in order to overcome the difficulties referred to, a study of the Chinese patent system should be made to ensure that registration of Chinese patents can be effected in accordance with the proposed Patents Bill outlined in chapter 10. Such study should further consider the provisions required in Hong Kong's legislation to deal with issues which will arise as a result of registering patents from two systems. Such issues would include the provisions required to deal with the question of priority, the translation of the patent applications and specifications into English to ensure that documentation is published in English and the transitional questions on the same basis as European patents or applications not designating the United Kingdom.
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