There is a provision for compulsory licences to be granted where a patented invention is not being worked commercially in Hong Kong to the fullest extent reasonably practicable or, where the patented invention is a product, demand for it is not being met on reasonable terms; or, by reason of the proprietor's refusal to grant a licence on reasonable terms, the development of other patented inventions is being prevented or hindered or the establishment or development of commercial or industrial activities in Hong Kong is unfairly prejudiced.
These provisions parallel those of the UK Patents Act. The Bill states expressly, however, that an invention can be worked by importation into Hong Kong.
Application for a compulsory licence is made to the court which has wide discretion as to what the licence terms should be. It must also be satisfied that the applicant has made reasonable efforts to obtain authorisation from the proprietor on reasonable commercial terms and conditions and that such efforts had not been successful within a reasonable period of time.
There is also a provision for government use of patents during a period of extreme urgency without consent of the proprietors of the patents. A period of extreme urgency may be declared by the Government whenever considered necessary or expedient in the public interest for the maintenance of supplies and services essential to the life of the community. It is not necessary for the Government to obtain a court order first; it needs simply notify the proprietor of the patent as soon as practicable. The court may be invoked, however, to lay down conditions for use of the invention and the right of the proprietor or any other person to receive payment for its use.
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