Hong Kong Ordinances

PATENTS ORDINANCE - SECT 69

Government use of patents during a period of extreme urgency

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 22 of 1999 s. 3

(1) During a period of declared extreme urgency a public officer authorized in
writing by the Chief Executive or any person authorized in writing by such
public officer may in relation to- (Amended 22 of 1999 s. 3)

   (a)  a patented invention, without the consent of the proprietor of the
        patent; or

   (b)  an invention in respect of which an application for a patent has been
        filed, without the consent of the applicant, do any act in Hong Kong
        in relation to the invention as appears to the public officer or
        person authorized to be necessary or expedient in connection with the
        urgency giving rise to the declaration under section  68 .

(2) Any act done in relation to an invention by virtue of this section is in
the following provisions of this section referred to as use, or Government
use, of the invention; and "use" (徵用), in relation to an invention, in
section 70 to 72 shall be construed accordingly. <* Note - 
 Exp. X-Ref.: Sections 70,
71, 72 *>

(3) Government use may include any act which would, apart from this section,
amount to an infringement of the patent concerned or, as the case may be, give
rise to a right under section 88 to bring proceedings in respect of the
application for a standard patent.

(4) Any Government use of the invention made at any time either-

   (a)  after the publication of an application for a standard patent or the
        grant of a short-term patent for the invention; or

   (b)  without prejudice to paragraph (a), in consequence of a
        relevant communication made otherwise than in confidence-

        (i)    after the deemed date of filing of the application for the
               standard patent for the invention or the date of filing of the
               application of the short-term patent for the invention, as the
               case may be; or

        (ii)   where priority was claimed, after the date of priority, shall
               be made on such terms as may be agreed, either before or after
               the use, by the Government and the proprietor of the patent or
               as may in default of agreement be determined by the court on a
               reference under section 72.

(5) Where an invention is used by virtue of this section at any time after
publication of an application for a standard patent for the invention but
before such a patent is granted, and the terms for its use agreed or
determined as mentioned in subsection (4) include terms as to payment for the
use, then (notwithstanding anything in those terms) any such payment shall be
recoverable only-

   (a)  after such a patent is granted; and

   (b)  if (apart from this section) the use would, if the patent had been
        granted on the date of the publication of the application, have
        infringed not only the patent but also the claims (as interpreted by
        the description and any drawings referred to in the description or
        claims) in the form in which they were contained in the application as
        published.

(6) The authority of a public officer in respect of an invention may be given
under this section either before or after the patent is granted, and may be
given to any person whether or not he is authorized directly or indirectly by
the proprietor of the patent to do anything in relation to the invention.

(7) Where any Government use of an invention is made by or with the authority
of a public officer under this section, then the public officer shall notify
the proprietor of the patent as soon as practicable, and furnish him with such
information as to the extent of the use as he may from time to time require.

(8) A person acquiring anything disposed of in the exercise of powers
conferred by this section, and any person claiming through him, may deal with
it in the same manner as if the patent were held on behalf of the Government.

(9) Any reference in this section to a patented invention, in relation to any
time, is a reference to an invention to which a patent has before that time
been, or is subsequently, granted.

(10) In this section "relevant communication" (有關通訊), in relation to
an invention, means a communication of the invention directly or indirectly by
the proprietor of the patent or any person from whom he derives title.

(11) Subsection (4) is without prejudice to any rule of law relating to the
confidentiality of information. [cf. 1977 c. 37 ss. 55 & 56 U.K.] "use"
(徵用)

"relevant communication" (有關通訊)