Chapter 10
Part I
Proposals for a Patents Bill
10.1.
In Chapter 9 we recommended that Hong Kong should have its own legislation and administrative system to provide for the grant and protection of patents in Hong Kong. We further recommended that such legislation should provide for the grant of domestic patents after registering patents granted by the European Patent Office (EPO) under the provisions of the European Patent Convention (EPC). We also recommended that the Registrar of Patents should continue to be the Director of Intellectual Property.
10.2.
Our terms of reference require that we should draw up detailed proposals for the implementation of the recommended patent system. In order to do this we have considered the EPC and the United Kingdom Patents Act 1977 (1977 Act). As regards matters relating to the validity of the patent we have followed the provisions of the EPC having taken note of the fact that the UK 1977 Act was drafted with the intention of being compatible with the EPC, but as regards post grant matters and protection of rights we have used the UK 1977 Act as our base. We consider that this would provide continuity with our existing system and would be compatible with the existing common law and judicial system of protection of patents and other intellectual property rights in Hong Kong. We have not provided for registration of patents granted by the Chinese Patent Office in these proposals as it is recognised that a further study will have to be conducted to provide for this.
10.3.
Although the system is to be based on the registration of granted EP patents, which means that any person wishing to protect his invention in Hong Kong will have to apply to the EPO for a patent, the future registration system should provide that once the patent is granted in Hong Kong it should stand alone as a Hong Kong patent (HK patent) and remain in force so long as it is maintained and renewed in Hong Kong. In addition, as a general principle, we consider the HK patent should be capable of being tested for validity and of being rectified, amended or revoked in Hong Kong independently of action taken elsewhere.
10.4.
We also consider that questions relating to the rectification and validity of patents should, in Hong Kong, be decided by the courts. We have noted that in the United Kingdom in some instances application can be made to the Comptroller of the Patent Office to decide these and other questions. We consider however, in order to avoid the necessity of providing the Registrar with the necessary technical support personnel and other resources that such applications should, as a general principle, be made to the court.
10.5.
In Part I of this chapter we give the reasons for our proposals. Annexure 1 is an arrangement of the clauses for our proposed Patents Bill. Part II of this chapter sets out details of the key clauses. A list of the abbreviations used is contained in Part III.
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