TNAG-2890-FCO40-4162-Reform-and-localisation-of-the-Hong-Kong-Patent-System-1993 — Page 118

Conclusion

5.50.

If Hong Kong were to decide to adopt a registration system, many of the systems whose patents could be registered here satisfy some of the requirements outlined above. However, the only one which appears to satisfy all of those requirements is the European Patent Office. The countries which form the EPC have a high level of trade with Hong Kong. The system is well established and the number and spread of applications shows that both Hong Kong and overseas businessmen from Hong Kong's major trading partners including the USA and Japan (see paragraph 5.33) use the EPC system. The ambit of protection and the system are the same as the existing system in Hong Kong. The European Patent Office has established itself as one of the major patent offices and patents granted by it are well respected.

5.51.

Although we recognise that difficulties would arise if Hong Kong allowed the registration of patents from more than one system, we also recognise the special relationship that exists between Hong Kong and China. The difficulties with registering patents from both the European Patent Office and the Chinese Patent Office could to some extent be overcome as a result of a number of factors. These factors include the WIPO initiative, the ongoing practical moves being made towards greater harmonisation of patent systems and the fact that China's patent system is similar to the EPC in that it operates a first-to-file system. More recent developments are the amendments to China's patent laws which take effect from 1st January 1993. These amendments will provide protection for pharmaceutical products and chemical products, and extend the term of patent protection to 20 years. Another development is China's proposal to become a party to the Patent Cooperation Treaty which was approved by the PCT Union in September 1992. China is likely to become a party to that treaty in 1994 and on accession would also become an International Searching and Provisional Examining Authority.

5.52.

Paras. 5.10 to 5.17 concentrate on the difficulties faced by the judiciary and businessmen. However registering patents from more than one system will also have some effects on the administration of the system. The essence of a registration system is that the patent office examines the application as to formalities only. If this approach were to apply to Hong Kong then the Hong Kong Patents Registry will be required to register all patents even in the circumstances outlined in para. 5.16. In such circumstances specific provisions will be required to provide for priority and patentability to be established according to the law in Hong Kong in respect of all patents which are registered here.

5.53.

In addition, it will be necessary to provide a smooth transfer from the current system to any proposed new system and it may take some time after introduction of the new system before all the problems associated with the transition are identified and resolved. Special transitional provisions will also be required to ensure that existing patents are protected and that persons currently entitled to obtain protection for their inventions continue to be able to do so. If a registration system were adopted and if the European patent system were the basis for this system, there should be no major difficulties in this regard. Hong Kong already allows for the registration of one type of patent granted by the European Patent Office patent- those designating the UK. On the other hand, a new system in Hong Kong which allowed or introduced the registration of patents granted by both the European Patent Office and the China Patent Office would be a departure from the current regime and a

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