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11.24.
It is possible that an unregistered design right will be introduced in Hong Kong. In its consultative paper released in February 1991, the Law Reform Commission Copyright sub-committee reported that
11.25.
"The majority of the sub-committee recommend a design registry for Hong Kong based closely on the model in the 1949 Act, together with the United Kingdom's approach to unregistered rights. That would mean copyright protection for artistic designs applied industrially, and a "design right" to protect novel aspects of shape and configuration of an article."
As with copyright and registered designs, we consider that any unregistered design right of this kind would not help the owner of the original product where the idea can be exploited in products of different shapes.
Summary
11.26.
In the absence of a contractual restriction or an obligation of confidence, the owner can resort to the alternative forms of protection only if the third party has used the shape of the original product. In many cases the third party can take the underlying idea of the product or of elements within it without copying its shape as a whole. In these cases it is not enough to protect shape alone since the idea can be exploited in elements having different shapes. Since as much or more skill and effort may have gone into the idea as into the shape of the product, that idea ought to be protected. It is the law of patents which protects the underlying ideas.
11.27.
A patent will be of little use to a business wanting to protect a product that has a commercial life shorter than the time it takes to obtain a patent. In such cases, if the only type of protection which will protect the product is patent protection, that protection must be available quickly to be of any use.
11.28.
It is apparent from this discussion that the other forms of protection referred to cannot protect a process or a product which is a substance, for example cement or modelling clay.
The UK view on petty patents
11.29.
Much thought has been given in the United Kingdom to the issue of whether
a petty patent system should be introduced there.
11.30.
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As early as 1962, the Johnson Report (Cmnd 1808) commented:
"The minority view put to us by the Chartered Institute of Patent Agents, the body most qualified to speak on this subject, was in favour of the introduction of a utility model system. The majority view was against it but only because the standard of inventiveness required in practice by the British Patent System
he
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