The underlying principle of the short term patent is to permit an invention to be protected quickly, by a deposited filing (ie. without substantive examination) in Hong Kong, thereby affording protection for inventions which have a short commercial life span or as an interim measure pending grant of a Standard Patent. (There is nothing in the Ordinance to prevent the co-existence of a Short Term and a Standard Patent.)
Essentially, the same principles apply in determining the registrability, scope, remedies and other rights and obligations of the proprietor for a short term patent as for a Standard Patent, with the following exceptions:
only one step needs to be taken, ie. a Request for Registration and Grant, consisting of a specification (which may be that used for the designated patent) together with a search report showing relevant prior art;
a statement identifying the inventor and establishing the basis for the applicant's entitlement;
only one independent claim is permitted, but with no limit on the number of subsidiary claims, per application.
The Registry will not concern itself with anything other than the payment of fees and the meeting of these formal requirements. The Short Term Patent will then be granted 'as soon as practicable after examination' and its specification published. There is a provision for deferral of grant of the patent on the applicant's request and for amendment or withdrawal of the application prior to grant.
Once granted, the Short Term Patent lasts for eight years from the date of filing. A renewal fee must be paid after four years.
Priority may be claimed for purposes of establishing novelty from invention (but not utility model) patent applications filed in other Paris Convention or World Trade Organization territories, or from a China-designated PCT application for utility model.
In court proceedings, the burden of proof is on the proprietor of the Short Term Patent to establish validity. A Standard Patent is presumed valid. In most cases, however, defendants to patent proceedings will put in issue the validity of a patent, so the difference may in practice not be significant. It should greatly increase the scope for obtaining rapid relief in Hong Kong against patent infringers.
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
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