- making, offering, putting on the market or using a product which is the subject matter of the patent, or importing or stocking the product for those purposes;
- using a process which is the subject matter of a patent or knowingly offering the process for use (knowledge to be actual or constructive i.e. obvious to a reasonable person in the circumstances);
- offering, putting on the market or using or importing or stocking any product obtained directly by a process which is the subject matter of the patent;
- supplying or offering to supply a person in Hong Kong with means relating to an essential element of the invention for putting it into effect in Hong Kong when the supplier knows (actually or constructively) that these means are suitable and intended for putting the invention into effect. This does not apply where the person supplied is entitled to work the patented invention or where the means refer to staple commercial products (unless the supplier is also inducing the person supplied to commit infringing acts).
There are express savings exempting the following acts from being infringements:
- acts done privately on a non-commercial basis;
- acts done for experimental purposes relating to the subject matter of the patented invention;
- extemporaneous preparation by a pharmacy of prescribed medicines for individual cases;
- use of an invention which is the subject of a patent embodied in a sea, land or air vehicle temporarily or accidentally in Hong Kong, or the use of an aircraft which is lawfully within or crossing Hong Kong (and the importation of parts or accessories for such an aircraft into Hong Kong).
There is an express provision for the court to grant injunctions, orders for delivery up or destruction and declarations of patent validity, as well as damages or an account of profits.
Damages or an account of profits may not be awarded against a defendant who proves that, as at the date of infringement, he was not aware and had no reasonable grounds for supposing that the patent existed. If a product is marked with the word 'patent' or 'patented', this is not in itself sufficient to construe a defendant with knowledge unless the number of the patent is also marked.
There is a limited right of prior user in relation to acts done in good faith before the deemed date of filing for the Standard Patent.
Remedies may be claimed retrospectively, once the patent is granted, back to the date of publication of the Standard Patent.
Further information on the above may be obtained via Linklaters & Paines Hong Kong office or via any of the other nine Linklaters & Paines offices world-wide, located in Singapore, Tokyo, London, Brussels, Paris, Frankfurt, New York, Washington D.C. and Moscow. Contact details for the various L&P offices worldwide are available via the Linklaters & Paines corporate listing c/o Business Monitor Online - http://www.businessmonitor.co.uk
c Linklaters & Paines 1997 - Tel +852 2842 4888