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in accordance with the Paris Convention any person should be able to make an application for a petty patent based on a claimed priority in another Convention country. Other convention countries should therefore accord similar priority rights for an application in those countries based on applications for a petty patent made in Hong Kong;
a petty patent should be able to be granted as soon as the formal requirements have been complied with and at least within 6 months of the filing of the application. An applicant should however have the right to defer grant for a maximum of six months. An applicant should also be able to request an accelerated grant;
there should be no right of opposition prior to grant;
the term of the petty patent should be six years from the date of filing the application, renewable for a further period of three years after the end of the third year. The rights in a petty patent should arise from the date of publication of the grant of the petty patent;
a petty patent should be a form of intangible property and be capable of being assigned and licensed. The provisions relating to a HK patent under the proposed Patents Bill in this respect should apply to a petty patent;
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in order to enforce his rights, the onus should be on the proprietor of a petty patent to establish in any proceedings the validity of the petty patent to the satisfaction of the court; and
to prevent abuse in litigation involving a petty patent it should be provided that, where an interlocutory injuntion is ordered, the defendant should be able to request a speedy trial as of right and where an interlocutory injunction is refused, a plaintiff should be able to demand a speedy trial.
13.11
We have observed in Chapter 4 when considering the various types of patent systems that requiring the judiciary to adjudicate upon unexamined patents would stretch the judicial resources in Hong Kong. Patent litigation is already lengthy, and our proposal to grant unexamined petty patents could well exacerbate the problem. Therefore, we recommend that the Hong Kong Government study the methods which have been adopted elsewhere for reducing the time taken by patent litigation and consider whether they would be suitable for Hong Kong.
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