TNAG-2890-FCO40-4162-Reform-and-localisation-of-the-Hong-Kong-Patent-System-1993 — Page 99

Chapter 4

Patent systems

Preliminary observations

4.1.

In all systems providing for patents there is a government agency authorised to operate the system (patent office) which receives applications and which then allows or refuses the application in accordance with the laws and procedures of the system.

4.2.

Regardless of the type of patent system which is adopted, one fundamental aspect is consistent. Because there are certain requirements which have to be taken into account before a patent can be validly granted (see chapter 3), there is always the possibility that the validity of a patent will be in issue. It will always be necessary to have a method for resolving these disputes. The method and forum for resolving such disputes may differ from country to country.

4.3.

This aspect must be kept clearly in mind when analysing the advantages and disadvantages of the various types of systems. The ease with which disputes can be resolved has obvious commercial consequences. A fundamental justification for a patent system is that it enables businessmen to make sensible investment decisions. If the validity of patents granted in a country is unclear, or is difficult to ascertain, investment in technology is impeded.

Various types of patent systems

4.4.

Patent systems fall into two broad categories; pre-grant search and examination systems and non-examination or deposit without search and examination systems. In the former the patent specification is searched and examined for validity before grant (examination system). In the latter there is no such search and examination and the documents lodged are registered with only a check as to formalities (non-examination system). There are various methods of providing for pre-grant search and examination. The main options are explained below, from paragraph 4.14 onwards.

A non-examination system

Introduction

4.5.

The essence of a non-examination system is that it requires the patent office to grant a patent once the relevant documents are lodged. The patent application is not searched or examined before grant. Issues of patentability and validity are left to be decided in the courts after grant.

Advantages and disadvantages of a non-examination system

4.6. inexpensive.

The advantage of such a system is that obtaining a patent is simple and

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