TNAG-2890-FCO40-4162-Reform-and-localisation-of-the-Hong-Kong-Patent-System-1993 — Page 244

Dissenting view

Introduction

13.12.

A petty patent is by definition an inferior type of patent protection. It is considered that the drawbacks inherent in such a system outweigh any supposed advantages. It is also considered that any supposed advantages of introducing a petty patent system would be likely to prove illusory.

13.13.

It is considered that the proposals recommended in paras. 13.9 and 13.10 for a petty patent system for Hong Kong would :-

13.14.

(a)

(b)

(c)

lead to uncertainty; this uncertainty is detrimental to the interests both of the proprietor of the patent and the public; it is made worse because without any background of regular patent litigation, the Hong Kong courts are not familiar with patent issues;

give considerable scope for abuse; by reason of the fact that a patent will be issued without any check, it will leave it open to anybody to obtain a petty patent which is incurably invalid and yet another faced with claims based upon it will have the option of submitting to unwarranted demands or else of financing expensive and costly litigation to refute them. In all but one of the petty patent systems listed in Chapter 11, there is a compulsory licence system. That is no doubt to alleviate some of the problems caused by the introduction of a second tier system with its inherent defects. No system of compulsory licence has been proposed for Hong Kong. Thus the public are left with the expensive option of litigating a petty patent thought to be invalid or avoiding the technology; and

result in considerable demand on judicial time and furthermore in a field in which judges are and are likely to remain unfamiliar.

As referred to in paras. 11.29 to 11.34 the introduction of a petty patent system in the United Kingdom was considered by, for example the Banks Committee in 1970. The reasons given for not introducing such a system by the Banks Committee are as valid now as they were then.

Hong Kong's characteristics

13.15.

It has been noted that Hong Kong is a manufacturing and trading centre whose business community makes its living by manufacturing or handling products destined for ultimate sale and consumption overseas. It is vital that Hong Kong businessmen and manufacturers are not hampered by unnecessary fear of legal action. Any monopoly system must therefore be very carefully safeguarded to check that it does not constitute an unwarranted hinderance to trade. Without in any way denying the relevance of overseas experience, any system for Hong Kong must take into account the unique nature of Hong Kong both from its entrepreneurial, export and trading standard point and the cultural background of an unfamiliarity with litigation.

172

13.16. protectior: terms of r of the recc should prc

of a numb

13.10.

13.17.

system anc but he will

out an exa

13.18.

patents sho recommenc a petty pate system sho

13.19.

the propose Patents Bill

deal solely EPC.

1

13.20. patent and requirement as possible proposed Pa

13.21. The clauses

།

this chapter the key claus