Safeguards against abuse of the rights granted by patents have been built in under the Patents Ordinance and they apply to standard patents as well as short-term patents.
Where a person by circulars, advertisements or otherwise threatens another person (“aggrieved party”) with proceedings for infringement of a patent (other than an infringement alleged to consist of making a product for putting on the market or of using a process), the aggrieved party may initiate proceedings against the party making the threats if he can prove that the threats were made and that he is a person aggrieved by such threats. However, a notification of the existence of a patent does not of itself constitute a threat of proceedings.
The patent owner may, by way of defence, prove that the act in respect of which the threat was made constitutes or, if done, would constitute an infringement of the patent. In such cases, the aggrieved party shall not be entitled to the relief claimed unless he can show that the patent concerned is invalid in a relevant respect.
The patent owner may, by way of defence, prove that the act in respect of which the threat was made constitutes or, if done, would constitute an infringement of the patent. In addition, unless a certificate of substantive examination has been issued for the short-term patent in respect of the infringement as alleged (such that it is for the aggrieved party to prove that the patent is invalid in the relevant respect), the patent owner would also need to prove that the patent is valid in the relevant respect and that he has complied with any access request for patent information made by the aggrieved party before commencing the relief proceedings. If the patent owner is successful in proving the above, the aggrieved party shall not be entitled to the relief claimed.
The relief available is (a) a declaration to the effect that the threats are unjustifiable, (b) an injunction against the continuance of the threats, and (c) damages.
Any person may initiate proceedings in court to revoke a granted patent on the grounds that the invention was not patentable (i.e. that the invention was not new, did not involve an inventive step and was not susceptible of industrial application), or on other grounds. The validity of a patent can also be challenged by a defendant in an infringement action.