contained in s.2 of the Trade Descriptions Ordinance (Chapter 362) and s.2 of the Import and Export Ordinance (Chapter 60) be included in the proposed Patents Bill. This would provide that goods brought into Hong Kong solely for the purpose of taking them out again and which remain at all times in or on the vessel, aircraft or vehicle in which they came to Hong Kong would not be considered as imported for the purposes of Clause 53 of the proposed Patents Bill. In addition we consider that there should be a definition for "goods in transhipment" to provide that goods that are consigned on a through bill of lading or a through air waybill from a place outside Hong Kong to another place outside Hong Kong but which are transferred from one vessel, vehicle or aircraft in Hong Kong to another vessel, vehicle or aircraft in Hong Kong are not considered as imported for the purposes of the proposed Patents Bill.
Rights on publication of request to record
10.37.
An applicant who has made a request to record an EPA which has been entered on the register and published will have the same rights, as from the date of publication of the request to record, as if the patent had been granted on the date of publication of the request to record, except that no proceedings can be commenced until the HK patent has been granted (Clause 62).
Groundless threats
10.38. We consider that there should be provision for a person, the subject of groundless threats, to bring an action. Such threats can have the effect of deterring people from selling even if the action is groundless. This is particularly so in Hong Kong where there are many small companies or partnerships. If there is no such provision then the only remedy is to apply for the revocation of the patent which is a lengthy and expensive process (Clause 63).
Revocation of HK patents
(Part X of the proposed Patents Bill)
10.39. As indicated, we consider that the HK patent must be capable of being revoked in Hong Kong and the proposed legislation will provide that any person may apply to the court, but not to the Registrar, for an order to revoke a HK patent on certain specific grounds. The grounds will follow those set out in EPC Articles 138 and 139 and broadly are that the subject matter of the HK patent is not patentable, that it does not properly disclose the invention, that the subject matter has been extended, that the HK patent was granted to a person not entitled to apply for a patent and that the HK patent was granted to a person who was not the only person entitled to apply (Clause 65).
Patentable inventions
10.40.
The proposed Patents Bill will contain provisions setting out those inventions which are patentable and these provisions will follow EPC Articles 52 to 57. In particular the provisions relating to novelty, inventive step and industrial application will follow the EPC (Clauses 66 - 69).
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