Prior disclosure and priority date
10.41.
The provisions relating to prior disclosure will follow the provisions of the EPC or the 1977 Act as appropriate and the priority date of the HK patent will be the priority date of the corresponding EP patent i.e. the date of filing the corresponding EPA or such other date as determined, and the proposed Patents Bill will contain provisions for this to be established.
International applications for patents (Part XIII)
10.42.
We consider in paragraphs 14.12 to 14.25 the Patent Co-operation Treaty (PCT) and its continued application to Hong Kong. The PCT provides for the filing of one international patent application as opposed to separate applications in a number of countries. An applicant can use the PCT route and make an international application but once he decides in which country or countries he wishes to obtain protection he must follow the procedures prescribed in each country for obtaining a patent.
10.43.
The receiving office for the purposes of the application of the PCT to Hong Kong is currently the United Kingdom Patent Office (UKPO). As outlined in paragraph 14.21 we consider that it would no longer be appropriate for the UKPO to be the receiving office for applications from Hong Kong residents under the proposed patent system as outlined in Part II of this Chapter. We recommend in paragraph 14.25 that the question of whether the registry could be nominated as a receiving office for the purposes of receiving applications from Hong Kong residents under the PCT should be further investigated. We have also emphasised that whilst there are advantages attached to the continued application of the PCT to Hong Kong we would not wish to delay the introduction of the recommended patent system for this reason.
10.44.
In view of our recommendation we have included in Part XIV of Part II of this Chapter provisions which will only come into effect if the registry can, as one of the national offices of its sovereign state for the time being, be nominated as a receiving office for the purposes of the PCT. These provisions would enable an international application under the PCT to be filed with and be processed by the registry. Such an application would not be considered as an application for a HK patent which would still require initial application to be made to the EPO. Any person making an international application for a patent under the PCT to the registry would have to designate the EPO in the PCT application if they wished to obtain a HK patent.
Miscellaneous & General Legal Proceedings (Part XVII)
Burden of proof in certain cases
10.45.
We consider that the existing provisions of the 1977 Act s. 100 should apply to a HK patent in relation to the burden of proof in certain cases. We recommend that, where the invention is a process for obtaining a new product, the onus of establishing that
100