Chapter 11
Does Hong Kong need a petty patent system?
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Introduction
11.1.
We have recommended a patent system for Hong Kong which allows the registration in Hong Kong of patents granted by the EPO. Although we are satisfied that under such a system Hong Kong patents will be strong and will suit the needs of many businesses operating here, we are aware that this patent system would not benefit businesses which manufacture products of short commercial viability ("short-term products"). These businesses want to obtain protection for the inventions incorporated into short-term products quickly and they do not require protection for as long as twenty years. They cannot wait as long as five years to obtain a patent and, even if the patent could be obtained sooner, the high cost of obtaining it would not be justified in many cases. The existence of petty patent systems in a number of countries is a reflection of the need for speedy and inexpensive protection for short-term products.
11.2.
This chapter starts with an analysis of the consequences of our recommendations for the patent system. The essence of a petty patent is then outlined, and the question of whether other forms of protection are sufficient to meet the need described above is considered. The chapter continues with a discussion of the United Kingdom position on petty patents and with a consideration of factors which are special to Hong Kong. It concludes by showing that many countries operate both petty patent and patent systems.
Consequences of the proposed changes to the patent system
11.3.
The changes to Hong Kong's patent system which we have recommended in chapter 9, if implemented on their own, may not solve the difficulties currently faced by some businesses as those changes may increase both the time taken to obtain protection and the cost.
Time
11.4.
If our recommendations are implemented and it becomes no longer possible to register UK patents in Hong Kong, the minimum time taken to obtain a patent in Hong Kong is likely to increase. It normally takes at least four years from the priority date to obtain a European patent. It may even take over three years from the priority date to obtain a search report. During that period applicants are denied full protection because they cannot prevent a third party from exploiting the invention. The applicants' only protection is the prospect of recovering, after the patent has been granted, damages for the infringement. A UK patent normally takes about three years to obtain, although, on request and subject to a case being made, it is possible for an applicant to get an accelerated grant of a UK patent in about twelve to fifteen months. A similar facility exists in the EPO but does not appear to be as readily available.
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