Acron International Technology Ltd v. Chan Yiu Wai and Another

CAC v 32/2016

[2018] HKCA 97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 32 OF 2016

(ON APPEAL FROM HCA NO. 1709 OF 2010)

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J U D G M E N T

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Hon Cheung JA:

1.I agree with the judgment of Yuen JA.

Hon Yuen JA:

2.On 30 June 2017 we dismissed the defendants’ appeal from DHCJ Whitehead’s judgment in HCA1709/2010 in which the learned judge:

(1) entered judgment with costs for the plaintiff against the 2^nd defendant in relation to an invention patent;

(2) ordered costs against the 1^st defendant.

3.The defendants have applied for leave to appeal to the Court of Final Appeal on the “great general or public importance” ground as well as the “or otherwise” ground in s.22(1)(b) Hong Kong Court of Final Appeal Ordinance Cap.484.

4.As our judgment was the first judgment in Hong Kong discussing s.57 of the Patents Ordinance Cap.514, we give leave to appeal on the 1^st Ground set out in the defendants’ notice of motion, viz:

“In the context of identifying what the invention is for the purpose of section 57 of the Patents Ordinance (Cap.514) (“PO”), and where the invention in issue is embodied in a patent already granted, whether, and if so, to what extent section 76(1) of the PO is relevant and applicable?”

5.We decline to grant leave on the other grounds advanced by the defendants on the “great general or public importance” ground as they are fact‑sensitive.

6.We also decline to grant leave on the “or otherwise” ground in accordance with the usual practice that this should be left for decision by the CFA.

7.The costs of this application are to be costs in the appeal to the CFA.

Hon Kwan JA:

8.I agree with the judgment of Yuen JA.

Ms Rachel Lam and Ms Eva Leung, instructed by Kwok, Ng & Chan, for the Plaintiff

Mr Paul Lam SC leading Ms Kay Seto, instructed by Woo, Kwan, Lee & Lo, for 1^st and 2^nd Defendants