Hong Kong Ordinances

PATENTS ORDINANCE - SECT 33

Maintaining application for standard patent

(Past version on 30/06/1997).

Amendments retroactively made - see 22 of 1999 s. 3

(1) This section applies to an application for a standard patent which has
been published but in which no request has been made for registration and
grant under section 23.

(2) If it is desired to maintain a patent application to which this section
applies for a further year after the expiry of the 5th or any succeeding year
from the date specified in subsection (3), the applicant shall, before the
expiry of that 5th or succeeding year (as the case may be), but not earlier
than a date 3 months before that expiry, apply to the Registrar in the
prescribed manner for the maintenance of the patent
application ("maintenance application") and pay the prescribed fee
("maintenance fee") and a patent application to which this section applies
shall be deemed to be withdrawn and abandoned at the expiry of that 5th or
succeeding year if the maintenance application is not so made or the
maintenance fee is not so paid.

(3) The date specified for the purpose of subsection (2) is the anniversary of
the date of filing the corresponding designated patent  application first
occurring after the date of publishing the request to  record.

(4) If, within 6 months after the end of the period specified in subsection
(2) for the making of a maintenance application, an application is made under
subsection (2) and the maintenance fee and any prescribed additional fee are
paid in the prescribed manner then the patent  application shall be treated as
if it had not been withdrawn or abandoned.

(5) If statements contained in the maintenance application indicate-

   (a)  that as at a date specified in the application, being a date not
        earlier than 1 month before the date of making the application-

        (i)    the designated patent application has not been withdrawn or
               abandoned for the purposes of the
               law of the designated patent office; and

        (ii)   there has been no final refusal by the designated patent 
               office to grant a patent pursuant to the
               designated patent application; and

   (b)  that-

        (i)    as at the date specified for the purposes of paragraph (a) a
               patent had not been granted pursuant to the
               designated patent application; or

        (ii)   a patent has been granted pursuant to the designated patent 
               application, and the date of such grant is a date within 6
               months before the date of the application, the Registrar shall,
               subject to subsection (9), maintain the application 
               for a patent.

(6) Where a statement contained in a maintenance application indicates that a
designated patent has been granted on a date within the 6 months before the
date of the maintenance application, any maintenance of the patent application
by virtue of subsection (5) shall have effect for a term ending 6 months after
the date of such grant.

(7) If there are deficiencies in the maintenance application that may be
corrected the Registrar shall give the applicant an opportunity to correct
them in accordance with the rules.

(8) If the Registrar is not satisfied as to the veracity of a statement in the
maintenance application, he shall notify the applicant accordingly giving
reasons and shall allow the applicant an opportunity to make further
statements or adduce material for the purpose of so satisfying him.

(9) If in an application under this section-

   (a)  statements contained in the application indicate that-

        (i)    the designated patent application has been withdrawn or
               abandoned pursuant to the law of the designated patent office;

        (ii)   the designated patent office has finally refused the grant of a
               patent in pursuance of the designated patent application; or

        (iii)  a designated patent has been granted in pursuance of the
               designated patent application, and the date of such grant was a
               date more than 6 months before the date of the application;

   (b)  deficiencies as noted by the Registrar are not corrected in accordance
        with the rules; or

   (c)  the applicant has failed to satisfy the Registrar as to the veracity
        of a statement in respect of which notice has been given under
        subsection (8), the Registrar shall refuse to maintain the
        application for a patent and upon such refusal that application shall
        be deemed to be withdrawn or abandoned.

(10) The Registrar may by regulation amend the period specified in subsection
(2) by reference to which the earliest date for making a
maintenance application under that subsection is determined.

(11) The Chief Executive in Council may by regulation amend the period
specified in subsection (2) as being the period after which a
standard patent application not maintained shall be deemed to be withdrawn and
abandoned. (Amended 22 of 1999 s. 3) [cf. EPC Art. 86]