TNAG-2890-FCO40-4162-Reform-and-localisation-of-the-Hong-Kong-Patent-System-1993 — Page 295

Invalid(ation)

Inventiveness, inventive step

Novelty

Opposition

Original grant

Paris Convention

Patent

The validity of a patent can be put in issue in certain specified ways. If the court agrees with the party putting validity in issue, the patent can be invalidated. It is possible to bring an action in the Hong Kong courts for a declaration that the rights in respect of a patent have not been acquired in Hong Kong by reason of invalidity, but it is necessary to apply to a United Kingdom court if the question of the validity of a United Kingdom patent or European patent (UK) is to be determined and the patent amended or revoked.

A patent will be valid only if the invention involves an inventive step. In other words it must not have been obvious to those skilled in the relevant field.

A patent will be valid only if the invention was novel at the date of first application.

Local novelty refers to novelty tested in respect of the prior art available in the country in which the patent is sought.

Absolute novelty refers to novelty tested in respect of the prior art available anywhere in the world.

Under the 1977 Act there is no power to oppose the grant of a patent as there was under the 1949 Act.

A grant of a patent is an original grant if it is not based on a patent granted elsewhere. cf registration.

The Paris Convention for the Protection of Industrial Property was concluded in 1883 and has subsequently been revised and amended. It relates to patents, trademarks and other intellectual property rights. It provides that member countries shall give the same treatment to the nationals of the other members as it gives to its own nationals. It also provides for the right of priority by which a person filing in any one of the member states obtains a delayed option to file in the other member states within the priority period. This means that an inventor does not have to file applications in all of the countries in which protection is sought at exactly the same time. With patents, the Paris Convention provides a 12 months priority period.

A patent is an exclusive right given by the state to an inventor or to someone with a legal interest in the invention, to exploit the invention for the term of the patent.

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