Chapter: | 514 | PATENTS ORDINANCE | Gazette Number | Version Date |
An Ordinance to make new provision in respect of patents and related matters in substitution for the Registration of Patents Ordinance. |
[The Ordinance, other than section 125 Section 125 | } } | 27 June 1997 1 July 1997 L.N. 367 of 1997] |
(Originally 52 of 1997) | | |
Section: | 1 | Short title | | 30/06/1997 |
PART I
PRELIMINARY - (1) This Ordinance may be cited as the Patents Ordinance.
- (2) (Omitted as spent)
Section: | 2 | Interpretation | L.N. 234 of 2007 | 22/02/2008 |
(1) In this Ordinance, unless the context otherwise requires"application for a patent" (專利的申請) means an application for a standard patent or an application for a short-term
patent; "court" (法院) means the Court of First Instance; (Amended 25 of 1998 s. 2) "date of filing" (提交日期)- - (a) in relation to a request to record or a request for registration and grant, means the date which is the date of filing that request by virtue of section 17 or 24 respectively;
- (b) in relation to an application for a standard patent has the meaning specified in relation to that term in section 3(ii);
(c) in relation to a designated patent application, means the date specified as such in the designated patent application; "Doha Declaration" (《多哈宣言》) means the Declaration on the TRIPS Agreement and Public Health adopted on
14 November 2001 by the Fourth WTO Ministerial Conference at Doha, Qatar; (Added 21 of 2007 s. 3) "eligible importing member" (合資格進口成員地) means - (a) a WTO member country, territory or area recognized by the United Nations as being a least-developed country; or
- (b) any other WTO member country, territory or area that has given notice in writing to the TRIPS Council that it intends to import pharmaceutical products in accordance with the General Council Decision or the Protocol; (Added 21 of 2007 s. 3)
"employee" (僱員) means a person who works or (where the employment has ceased) worked under a contract of employment (whether with the Government or with any other person);
"employer" (僱主), in relation to an employee, means the person by whom the employee is or was employed;
"exclusive licence" (專用特許) means a licence from the proprietor of or applicant for a patent conferring on the licensee, or on him and persons authorized by him, to the exclusion of all other persons (including the proprietor or applicant), any right in respect of the invention to which the patent or application for a patent relates, and "exclusive licensee" (專用特許持有人) and "non-exclusive licence" (非專用特許) shall be construed
accordingly; "exporting member" (出口成員地) means a WTO member country, territory or area that makes a patented
pharmaceutical product for export to an eligible importing member in accordance with the General Council Decision or the Protocol; (Added 21 of 2007 s. 3)
"General Council Decision" (《總理事會決定》) means the Decision adopted by the General Council of the WTO on 30 August 2003 on the Implementation of Paragraph 6 of the Doha Declaration; (Added 21 of 2007 s. 3)
"international application" (國際申請) means an international application for a patent made under the Patent Cooperation Treaty;
"International Bureau" (國際局) means the International Bureau of Intellectual Property provided for under the Convention Establishing the World Intellectual Property Organization signed at Stockholm on 14 July 1967;
"law of the designated patent office" (指定專利當局的法律) means
(a) in relation to a designated patent office established under the law of any country, territory or area other than Hong Kong, the law of that country, territory or area;
(b) in relation to a designated patent office established under an international agreement, the provisions of the international agreement; "mortgage" (按揭) when used as a noun, includes a charge for securing money or money's worth and, when used as a verb, shall be construed accordingly;
"non-prejudicial disclosure" (不具損害性的披露) means, in relation to an invention, a disclosure of the invention which is not to be taken into consideration for the purposes of determining whether or not the invention forms part of the state of the art;
"official journal" (官方公報) means the publication for the time being specified under section 150A as the official journal of record; (Added 2 of 2001 s. 2) "opposition or revocation proceedings" (反對或撤銷專利的法律程序) means, in relation to a designated patent, proceedings under the law of the designated patent office providing for the revocation or amendment of the designated patent within a specified period after the grant; "Paris Convention" (《巴黎公約》) means the Convention for the Protection of Industrial Property signed at Paris on 20 March 1883, as revised or amended from time to time; (Amended 2 of 2001 s. 2) "Paris Convention country" (巴黎公約國) means - (a) any country for the time being specified in Schedule 1 as being a country which has acceded to the Paris Convention;
- (b) any territory or area subject to the authority or under the suzerainty of any country specified in Schedule 1 pursuant to paragraph (a), or any territory or area administered by any such country, on behalf of which such country has acceded to the Paris Convention;
"patent application" (專利申請) has the same meaning as an application for a patent; "Patent Cooperation Treaty" (《專利合作條約》) means the treaty of that name done at Washington on 19 June 1970, as revised or amended from time to time; (Amended 2 of 2001 s. 2) "patented invention" (專利發明) means an invention for which a standard patent or, as the case may be, a short-term patent is granted and "patented process" (專利方法) shall be construed accordingly; "patented pharmaceutical product" (專利藥劑製品) means - (a) a pharmaceutical product which is an invention for which a standard patent or a short-term patent (as the case may be) has been granted;
- (b) in relation to a process for which a standard patent or a short-term patent (as the case may be) has been granted, a pharmaceutical product obtained directly by means of the process or to which the process has been applied; (Added 21 of 2007 s. 3)
"patented product" (專利產品) means - (a) a product which is an invention for which a standard patent or a short-term patent (as the case may be) has been granted;
- (b) in relation to a process for which a standard patent or a short-term patent (as the case may be) has been
granted, a product obtained directly by means of the process or to which the process has been applied; "pharmaceutical product" (藥劑製品) means - (a) a pharmaceutical product within the meaning of section 2(1) of the Pharmacy and Poisons Ordinance (Cap 138);
- (b) an active ingredient that is needed for making of a pharmaceutical product mentioned in paragraph (a);
- (c) diagnostic kit that is needed for the use of a pharmaceutical product mentioned in paragraph (a);
a
(Added 21 of 2007 s. 3)
"prescribed" (訂明) means prescribed or provided for by rules made under section 149;
"protected layout-design (topography)" (受保護的布圖設計(拓撲圖)) has the meaning assigned to that term by section 2(1) of the Layout-design (Topography) of Integrated Circuits Ordinance (Cap 445);
"Protocol" (《日內瓦議定書》) means the Protocol Amending the TRIPS Agreement adopted by the General Council of the WTO at Geneva on 6 December 2005, the Annex to the Protocol Amending the TRIPS Agreement, the Annex to the TRIPS Agreement and the Appendix to the Annex to the TRIPS Agreement; (Added 21 of 2007 s. 3)
"register" (註冊紀錄冊、註冊)- - (a) as a noun, means the register of patents kept under section 51; and
- (b) as a verb, means, in relation to any thing, to register or register particulars, or enter notice of that thing
in the register and, in relation to a person, means to enter his name in the register,
and cognate expressions shall be construed accordingly;
"Registrar" (處長) means the Registrar of Patents;
"Registrar of Patents" (專利註冊處處長) means the person holding that office by virtue of the Director of
Intellectual Property (Establishment) Ordinance (Cap 412); "registry" (註冊處) means the Patents Registry administered by the Registrar; "relevant instrument or legislation" (有關文書或法例) means - (a) the General Council Decision;
- (b) the Protocol; or
- (c) legislation made by the exporting member or the eligible importing member, as the case may be, pursuant to or for the purpose of implementing
- (i) the General Council Decision; or
- (ii) the Protocol; (Added 21 of 2007 s. 3)
"request for registration and grant" (註冊與批予請求) means a request under section 23 for the registration of a designated patent and the grant of a standard patent for the invention shown in the published specification of the designated patent;
"request to record" (記錄請求) means a request under section 15 to record a designated patent application;
"right" (權利), in relation to any patent or patent application, includes an interest in the patent or application and, without prejudice to the foregoing, any reference to a right in a patent includes a reference to a share in the
patent;
"rules" (規則) means rules made by the Registrar under section 149;
"short-term patent" (短期專利) means a patent for an invention granted under Part XV;
"short-term patent application" (短期專利申請) means an application under Part XV for a short-term patent;
"specification"' (說明書), in relation to an application for a patent under this Ordinance, a designated patent
application or an international application, means the description, claims and drawings contained in the application; "standard patent" (標準專利) means a patent for an invention granted under Part II; "standard patent application" (標準專利申請) means an application under Part II for a standard patent; "TRIPS Agreement" (《知識產權協議》) means the Agreement on Trade-Related Aspects of Intellectual Property Rights, being Annex 1C of the World Trade Organisation Agreement; (Added 21 of 2007 s. 3) "TRIPS Council" (知識產權理事會 ) means the Council for Trade-Related Aspects of Intellectual Property Rights referred to in Article 68 of the TRIPS Agreement; (Added 21 of 2007 s. 3) "verified copy" (核實副本) means, in relation to a document, a copy verified in the prescribed manner; "World Trade Organisation Agreement" (《世界貿易組織協議》) means the agreement of that name done at Marrakesh in 1994, as revised or amended from time to time; (Amended 2 of 2001 s. 2) "WTO" (世界貿易組織) means the World Trade Organisation established in Geneva on 1 January 1995 under the World Trade Organisation Agreement; (Added 21 of 2007 s. 3)
"WTO member country, territory or area" (世界貿易組織成員國、地區或地方) means any country, territory or
area for the time being specified in Schedule 1 as being a country, territory or area which has acceded to the
World Trade Organisation Agreement.
(2) The expressions listed in the left-hand column below are defined in, or fall to be construed in accordance with, the provisions of this Ordinance listed in the right-hand column in relation to those expressions.
Expression Relevant Provision
Application for a standard patent (標準專利的申請) section 3
Corresponding designated patent (相應指定專利) section 4
Corresponding designated patent application (相應指定專利申請) section 4
Deemed date of filing (當作提交日期) section 38
Designated patent (指定專利) section 4
Designated patent application (指定專利申請) section 4
Divisional designated patent application (指定專利的分開申請) section 22(1)