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Patents And Designs Bill Lords

Volume 467: debated on Friday 22 July 1949

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Ordered for consideration, as amended (in the Standing Committee), read.

Bill re-committed to a Committee of the whole House in respect of the Amendment to Clause 48, page 32, line 43, standing on the Notice Paper in the name of Mr. Wilson.—[ Mr. J. Edwards.]

Bill immediately considered in Committee.

[Major MILNER in the Chair]

Clause 48—(Appeals From Decisions Of The Comptroller In Scottish Cases)

11.21 a.m.

I beg to move, in page 32, line 43, at the end, to insert:

"(9) Rules made under this section shall provide for the appointment of scientific advisers to assist the Scottish Appeal Tribunal upon appeals under this Act and for regulating the functions of such advisers; and the remuneration of a scientific adviser appointed in accordance with such rules shall be defrayed out of moneys provided by Parliament."
This is a consequential provision on Clause 48, which was put into the Bill during the Committee stage and which gives certain rights of appeal to the Scottish Appeal Tribunal. This new subsection makes a similar provision with regard to Scottish appeals as Section 33 (1) makes with regard to similar proceedings in England, the provision being that scientific advisers may be appointed to assist in the hearing of the appeal. The original provision in Section 33 (1) was in pursuance of a recommendation made by the Swan Committee.

We are glad that this Scottish procedure has been brought into line with English procedure, and we welcome the Amendment.

While sharing my right hon. and learned Friend's gratitude on this point, I think it would have been more gratifying if we had had a Scottish Law Officer here today to amplify the statement made by the Solicitor-General.

In reply to the hon. Member for South Edinburgh (Sir W. Darling), may I point out that all the Scottish Ministers are engaged today on very important business in Scotland, where he and others who share his views are always urging that they should be? I am sure Scottish Members will agree that this matter can be efficiently dealt with by the Ministers now on the Front Bench.

I should like to add that my right hon. and learned Friend the Lord Advocate was present during the Committee stage when the principle of this Clause was discussed.

Amendment agreed to.

Clause, as amended, ordered to stand part of the Bill.

Bill reported, with Amendments; as amended (in the Standing Committee and on re-committal), considered.

New Clause—(Additions To Principal Act, S 85)

Section eighty-five of the principal Act shall have effect as if:

(a) in subsection (1), line 11, after the word "therefrom" there were inserted the words "or any person who in the course of employment by another person is in the opinion of the comptroller engaged wholly or mainly in acting as an agent for the purpose of applying for patents in the United Kingdom or elsewhere in the name of or for the benefit of his employer, unless he is registered as a patent agent or unless, being an applicant for a patent, he is acting on behalf of one or more co-applicants;"
(b) in line 24, at the end, there were added the following subsections:
"(4) Rules under this Act may provide for the admission to the register of patent agents of any individual who proves to the satisfaction of the Board of Trade that prior to the first day of January, nineteen hundred and forty-seven, he was while employed by another person bona fide engaged wholly or mainly in acting as an agent for the purpose of applying for patents in the United Kingdom or elsewhere in the name of or for the benefit of his employer and that in consequence of his experience he is suitable to be so registered.
(5) For the purposes of this section an individual shall be deemed to have been acting as an agent for the purpose of applying for patents in the United Kingdom or elsewhere if he has been appointed by the applicants for the patents to act for them in the applications or, without being so appointed, has been personally responsible to his employer for the prosecution of the applications."—[Mr. Erroll.]

Brought up, and read the First time.

I beg to move, "That the Clause be read a Second time."

When we on this side tabled this new Clause we did so before we had knowledge of the Government Amendment to the First Schedule, which deals with this matter. It will not be necessary for me, therefore, to go over the whole story of patent agents with particular reference to this Clause. Suffice it to say that we were anxious that the position which was intended in the Act of 1918 should be in some measure restored. There is no question here of anything in the nature of a closed shop for patent agents, but it was felt that what was deemed desirable then, and has been found to be desirable in subsequent practice, should be adhered to in this Bill. We should like to make sure that if we withdraw this Clause and accept the Government Amendment to the Schedule, the effect of paragraph (b) of the Clause will be secured. We should like to be assured that rules will be worked out to provide the safeguards which are intended in paragraph (b).

I beg to second the Motion.

I wish to reinforce my hon. Friend's plea that what is asked for in paragraph (b) is given either by a firm assurance from the Government or a promise of action. We feel that there is injustice in the prevailing circumstances to duly registered patent agents, and we want to be sure that injustice is not done to those who have done considerable service in this field up to now.

We discussed this point at considerable length in Committee, when I indicated my general sympathy with the view that anything that would help the Institute of Patent Agents to improve the standards of those who work in the profession would be a good thing. I think the broad intention of the new Clause is met by the Government Amendment to the First Schedule, in page 60, line 40.

With reference to paragraph (b) of the new Clause, I imagine it will be appreciated that when the Bill becomes law new rules governing the registration of patent agents will be necessary, and I give the assurance that provision will be made to enable unregistered persons who have for a sufficient period been wholly or mainly employed on the prosecution of applications for patents in the name or for the benefit of their employers to be registered on the Register of Patent Agents. Those rules will be subject to negative Resolution procedure in the House. I hope we shall embody the principle of such changes as are necessary, because of the new circumstances, in the rules. Before the rules are made we shall make sure that all interested parties are brought into consultation, so that the greatest effect will be gained. In the light of that I hope the hon. Member will feel able to withdraw the Clause.

Motion and Clause, by leave, withdrawn.

Clause 6—(Additional Powers Of Comptroller In Relation To Appli Cations)

11.30 a.m.

I beg to move, in page 4, line 20, to leave out from beginning, to end of line 6, on page 5.

The purpose of this Amendment is to enable the Government to rescind certain provisions which have been made for the Comptroller to endorse patents which, by reason of such endorsement, might have their value altered. The Clause seeks to enable the Comptroller to endorse patent applications and specifications with numbers of higher patents which he suspects may infringe, or whose validity may be called into question by, the new patent. This is the practice which I understand is already taking place, and the Comptroller is right within his powers in so carrying on the practice.

The Clause, however, seeks to change a permissive practice into a compulsory practice. That might be quite all right if the Comptroller were able to act comprehensively in every case, because it is not the correctness of what he does that will cause the damage, but the possibility of error. That is very real and very serious. For example, if a patent is incorrectly endorsed it means that it is reduced in value by reason of the erroneous endorsement. If, on the other hand, the patent which should be endorsed is not, in fact, so endorsed, then it leaves a false sense of security on the part of the patentee or of any interested third party. The possibility of error is admitted in later Clauses, because provision is made for correcting any errors which are brought to the notice of the Comptroller.

Furthermore, we know that the Comptroller's office is extremely congested at the present time, and conditions under which a comprehensive search can be carried out are extremely inadequate. There is, therefore, a real possibility of serious errors and omissions occurring. These may have most unfortunate consequences to the individual and the applicant or the interest of a third party. It would surely be very much better if the permissive power only were retained as at present, rather than proceeding with the extension which this Clause seeks to provide. The Amendment, as it stands, enables the comprehensiveness of the Comptroller's new powers to be whittled to permissive powers only.

There is one further undesirable feature of this practice, and that is that it would provide the Comptroller with an opportunity of deciding questions of infringement and validity ex parte instead of as at present inter parte. It means that he has to judge the merits of an application by reference only to the patent applicant, and he will then be called on to decide a difficult argument, that between his own view and the view of the applicant, instead of merely holding a semi-judicial function and deciding between rival claims and rival cases submitted to him. This represents an undesirable development in the Comptroller's department. It will impose upon him considerable additional work, much of which will be of a controversial nature, and which will lead to serious congestion in his department at a time when the department is coping manfully with serious arrears of work.

I beg to second the Amendment.

As my hon. Friend the Member for Altrincham and Sale (Mr. Erroll) says, we have considerable doubt whether this Clause represents an improvement on the present practice. In these circumstances, we hope the Solicitor-General will take note of what we have said and, if he shares our opinion, will accept the Amendment.

The object of the Amendment was somewhat fully canvassed in the Committee stage of this Bill, and we endeavoured to deploy the reasons which actuated the Government in thinking that the provisions of the Clause which this Amendment desires to delete should remain in the Bill. When the Bill was before the Committee, subsection (2) of Clause 6 was not in the Bill. That was moved during the Committee stage, and, if I may, I will deal one by one with the arguments which have been advanced.

It is said that notification can damage the interest of the patentee, but it is well understood under existing practice that the insertion of the reference is by way of warning only. It does not mean that the Comptroller has in any way prejudged the issue. It simply means that the researches, which are in any case carried out, have disclosed something which, in the view of the Comptroller, should be mentioned in the specification in order to warn the public, and for no other purpose.

If I may say so, with due deference to what has already been said, it is not because of any existing practice, and we can see no reason for thinking that it would be the case that the patentee's interests would be damaged. They would not be damaged, because it is understood as meaning no more than that the public should be on their guard. It prejudges nothing, and that is the answer to the argument propounded that this practice that the Comptroller carried out can be an ex parte investigation and prejudges something against the patentee. Investigations take place by the examiners in the search for novelty, and it is part of the ordinary routine. It means that the search is made so that if anything turns up the public should know about it. Nothing is prejudged.

We think the provisions of this Clause, in point of fact, contain a useful machinery for giving warning to the public. We are, in subsection (1), implementing the recommendation which is contained in the Report of the Swan Committee. The recommendation appears in paragraph 180 of the final Report, and we can see no reason for departing from that recommendation, which seems to us to be sound sense.

I would add this. As I have already stated, subsection (2) was not in the Clause when it was before the Committee and was moved into the Clause at that stage. The effect of subsection (2) is that it provides the necessary counter-balance, if counter-balance is desirable, to the insertion of the reference to the specification. In other words, the specification is marked with the reference to the previous patent. Subsection (2) contains a provision enabling the reference to be expunged in the appropriate circumstances set out in paragraphs a, b and c.

Therefore, although I can assure hon. Gentlemen opposite and the House that we have carefully considered what has been said, and in particular the argument that the interests of a patentee might be damaged if we did not waive this requirement, we feel that we ought to retain these provisions, particularly modified as they are by subsection (2). It is, after all, not only the patentee's interests that have to be kept in mind but the interests of other inventors who have claims to operate patents, and the interests of everyone else who might be affected if the patentee used a patent which infringed a previous patent. All those interests have had to be weighed one against the other. It is no doubt what the Swan Committee would have had in mind, and what we would have had in mind, in giving arguments against cumstances set out in paragraphs a, b and c.

For all those reasons I hope that hon. Gentlemen opposite will agree that we have come down on the right side of the line, and that the Bill is better with these subsections in. I think that the interests of all will be better protected if there is warning machinery, and that the interests of the patentee cannot be said to be prejudiced in any sense whatever.

Amendment negatived.

I beg to move, in page 4, line 21, after "eight," to insert:

"or of proceedings under sections eleven and twenty-six."
The purpose of the Amendment is to narrow the grounds upon which the Comptroller can base his reasons for deciding that an application involves risk of infringement of another claim. We have considered the matter and have come to the conclusion that the words "or otherwise" are too wide. We think that the grounds should be kept within the bounds of the principal Act. We looked at the Act, and we came to the conclusion that the reference to Sections 11 and 26 should be introduced here. Broadly, they deal with opposition to the grant of a patent and with the Comptroller's powers of revocation over a patent.

The effect would be to limit the proceedings to those which are inter parte. The Solicitor-General ought to look favourably upon such limitation for historical grounds. It was the practice up to a few years ago that the Law Officers had a special jurisdiction in dealing with patent matters. I am credibly informed by predecessors of the right hon. and learned Gentleman and myself that there was an invariable practice as soon as a new Solicitor-General was appointed for the Attorney-General of the day to call him, and to say: "Recognising as I do your great qualities and powers, there is one piece of work of the Law Officers which I am immediately going to commit to your hands, and that is the section dealing with patent matters." Therefore, every Solicitor-General has this historical appreciation of patents which he gets from his predecessors, and the very clear inducement to have the matters limited to the narrowest possible extent.

11.45 a.m.

We feel very much impressed by the arguments to which we have just listened, particularly the concluding part of the forceful address which the right hon. and learned Gentleman has given to the House. We are delighted to accept this Amendment and the consequential Amendments which follow it. We think that the words which we have employed go too wide and that the Clause would be better with the words "or otherwise" in line 21 limited in the sense in which the right hon. and learned Gentleman seeks to limit them by the Amendment which he has moved in line 21. We are much obliged to the right hon. and learned Gentleman for having called attention to the improvement, which will be made in the text of the Bill.

Amendment agreed to.

Further Amendments made: In page 4, line 21, leave out "or otherwise."

In line 38, after "revoked," insert:

"or otherwise ceases to be in force."—[Sir D. Maxwell Fyfe.]

I beg to move, in page 4, line 45, to leave out "may," and to insert "shall."

It is clear that the object of the Amendment is to make it obligatory on the Comptroller to delete the reference to another patent if the provisions of Subsection (2) are fulfilled. The Parliamentary Secretary will note with approval that we are merely following out the words which he let fall in the Committee stage. In answer to my hon. Friend the Member for Ashford (Mr. E. P. Smith) who raised this point the Parliamentary Secretary said:
"I see no reason at the moment why we should not do what the hon. Member … wants.—[OFFICIAL REPORT, Standing Committee D, 7th July, 1949; c. 21.]

I am afraid that my first thoughts are not my second thoughts. While I still feel that there is no real difference between us, if we are talking about the conditions (a) and (b) of the Subsection, there are difficulties in respect of (c), which refers to any working of the applicant's invention. I am advised that in infringement proceedings before a court or the Comptroller, a decision will be given on the question whether a specific working of the invention was an infringement of a prior patent. Although this decision might be in the applicant's favour, it would not necessarily mean in all cases that the prior patent would not be infringed by any other working of the applicant's invention.

In other words, if the word "any" in paragraph (c) is read as meaning "any possible" working, this would not correspond to the issue before the court or the Comptroller in infringement proceedings, while if the word "any" refers to any one specified working, this would correspond to such issue, but the decision would not then necessarily be conclusive on the question whether the reference by way of warning to the public was unnecessary, and the Comptroller would decide in the light of the decision whether the reference ought to be cancelled. It is for this reason, I am advised, that it is considered to be appropriate that we should retain the word "may". I have gone into the matter as carefully as I can and I can assure the right hon. and learned Gentleman that, as I am advised, it would be necessary for us to keep the word "may" in these circumstances.

In view of what the Parliamentary Secretary has said, I do not press the Amendment. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

I beg to move, in page 4, line 46, at the end, to insert:

"(3) The presence or absence in or from a complete specification of any reference to another patent shall not be deemed to warrant that any patent to which reference has been inserted is valid, or that the invention disclosed in that specification can be performed without infringement of any other patent, and no liability shall be incurred by the Board of Trade or any officer thereof by reason of any connection with the presence or absence of any such reference."
The purpose of this Amendment is to insert in this Clause a warning similar to that inserted in Section 8 of the principal Act in respect of the investigation of specifications published after application. This matter has been carefully discussed between the technical people concerned, and we in turn have examined it and have put forward this proposal for the acceptance, we hope, of the Government. The Amendment would make it quite clear that the insertion of a reference does not prejudge the issues of validity and infringement or put a legal responsibility on the Comptroller or the Board of Trade. Those who wish to refer to the warning contained in Section 8 which I mentioned will find it in page 39, subsection (8); it is in practically the same words.

I hope that the Government will accept this Amendment in view of what they said earlier today about Clause 6. There is considerable scope for error, which we hope will be kept down to a minimum, but scope remains. There is inevitably a good deal of ignorance on the part of the many and varied people who for one reason or another study patent specifications, and we think that this warning notice should be inserted. While we understand that the position of the chartered patent agent is to be slightly strengthened, there are also a large number of unqualified practitioners and numerous lay readers of patent material. This Amendment should be made to place the issue beyond all doubt.

I am sorry to say that we do not feel that this new subsection would improve the Clause. We have carefully considered this matter which, as the right hon. and learned Gentleman said, is one which would be, and has been, discussed by experts. It is really the weight of their opinion which should largely count in a matter of this sort. We think that this new subsection should not be inserted because we feel—I do not say this with any disrespect—that it is more appropriate to the textbook than to the text of the Bill. Our view is that as a matter of legal construction no one looking at Clause 6 (1) could possibly think that there was any such warranty. In those circumstances it becomes otiose to say that anyone looking at subsection (1) could say that there was. Therefore, why insert this proposed subsection to say that there shall not be any such warranty?

If it is asked what harm could be done by making this Amendment, our view is that as a matter of drafting it would do a considerable amount of harm. We have this point raised in the discussion of the provisions of various Bills and the answer is that once we begin putting into a Bill something which apparently cannot have any conceivable purpose except to be purely explanatory, and which one would expect to find in a textbook on the subject instead of in the framework of the enactment, we begin to introduce uncertainty. The lawyer and the expert, looking at subsection (1), and then seeing the same specific provision in this proposed subsection (3), would begin to wonder why subsection (1) should be read in any sense other than that in which it would normally be read. If one looks at this Clause, one cannot think that there could be such a warranty, and we feel that it is not merely otiose but bad drafting to put into the Clause something which there is no conceivable reason for putting there. It would simply introduce doubt and give rise to argument, not only on this Clause but on other parts of the Bill.

That is my objection to the first part of the Amendment. The second part corresponds very largely to what is in Section 8 (8) of the principal Act, which now appears in the First Schedule, in page 39, line 16. We do not really think that it is necessary. Our main objection to the proposed Amendment, however, is the one which I advanced at the outset of my argument. We think, and the right hon. and learned Gentleman will probably agree with me as a result of his great experience in these matters, that as a matter of drafting it is undesirable to do what the proposed subsection seeks to do. There can be mistakes and always will be, but, as I said when answering an earlier Amendment, a reference which is read largely in the patent world and is understood by it, will be clearly defined. It is known that it is merely by way of warning and no more. It is accepted practice and has become ingrained in patent procedure. In those circumstances, I hope that the right hon. and learned Gentleman will take the view that this Amendment will not improve the Clause. We are grateful to him and to the other Members for having put down this Amendment, but having considered it we feel that the Clause is better without it.

Perhaps I might, before asking the leave of the House to withdraw the Amendment, be allowed to say that if there is an intention eventually to bring forward a consolidating Bill, and if, contrary to the expectation of the Solicitor-General, any difficulty does arise, this is exactly the sort of minor point which under our new procedure might be dealt with without violating the principle which we discussed a few weeks ago. I throw that out for consideration in case experience teaches us that there are difficulties. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 10—(Patents Of Addition)

I beg to move, in page 7, line 19, to leave out "any embodiment of."

Perhaps it might be convenient if with this Amendment we also considered the next three Amendments, which are little more than drafting Amendments. The lines which we suggest should be amended were in an Amendment which was accepted in Committee by the Government. Second thoughts have shown that there may be matters described in the main patent which are not an embodiment and, which as the Clause stands, could be used as a ground of attack on a patent of addition. The clear intention of the Swan Committee was to prevent anything described in the main patent from being used in a trial of patent for additional invention.

We are grateful to the right hon. and learned Gentleman and his hon. Friends for having put down these Amendments, which we are happy to accept.

Amendment agreed to.

Further Amendments made: In page 7, line 21, leave out "any embodiment of."

In line 21, leave out second "of," and insert "in."

In line 22, leave out first "in," and insert "of."—[ Sir D. Maxwell Fyfe.]

Clause 14—(Revocation Of Patent By Court)

12 noon.

I beg to move, in page 10, line 22, to leave out from "specification," to the end of line 23, and to insert:

"is not new having regard to what was known or used, before the priority date of the claim, in the United Kingdom."
This and the Amendment in page 11, line 24 are linked together. They are purely drafting Amendments proposed in order to clarify the meaning of the Clause.

Amendment agreed to.

Further Amendment made: In page 11, line 24, after first "of," insert "paragraph ( e) or."—[ Mr. J. Edwards.]

Clause 16—(Compulsory Licences)

I beg to move, in page 12, line 2, after "patent," to insert:

"a Minister of the Crown or."
During the Committee stage we had considerable discussion both on this Clause and on Clause 19 (1). The law as it existed for some time provides for any person interested to apply to the courts after a period of three years for a compulsory licence of right if the patentee or the owner of the patent refuses to grant the person interested a licence on reasonable terms. This safeguard which has been in our patent law for a great number of years effectively disposes of the charges which are often being levied against the capitalist system of suppressing inventions.

There was some discussion on this subject in the Report of the Swan Committee, and the Government deemed it advisable, in Clause 19 (1), to reserve to themselves separate powers to have a patent endorsed "licences of right" on their application to the comptroller. We on this side of the Committee held the view, as we do today, that such a power is really a duplication of powers already possessed in Clause 16 (1), if the Government care to make use of them. As any person interested may apply to the comptroller, why should not the appropriate Government Department apply to the comptroller in the same way and state the case in the public interest?

Earlier, the Government pointed out that by custom and usage the phrase "any person interested" related purely to a person having a manufacturing interest. It was pointed out that a Government Department would not necessarily have a manufacturing interest—it would have a public interest. Therefore, we have sought to overcome this difficulty by seeking to insert the words, "a Minister of the Crown." This would overcome the difficulty discussed upstairs about whether or not a Government Department was a person, and it also overcomes the difficulty about the word "interest," because it is obvious that a Minister of the Crown would only act in the interests of the public—using that term in its best sense. The very fact that a Minister of the Crown was applying to the comptroller, would mean ipso facto that he was applying in the public interest.

Then we have the second category of applicant, namely "any person interested," who is applying merely because he has a manufacturing interest or an interest in a desire to manufacture. In this way, by this simple and precise Amendment, we overcome the undesirable features of Clause 19 (1), which we would move to delete if our Amendment to this Clause was accepted, and we place the Minister of the Crown on exactly the same footing as any other interested person. There can be very little difference between a Minister of the Crown applying in the public interest and an interested person applying. The Minister of the Crown can only be applying on behalf of somebody who may want to manufacture if the patent could be endorsed with the words "licences of right."

The only possible abuse is that the person interested may hesitate to go to the courts under Clause 16. He may hesitate to be involved in the litigation which might be necessary. I can appreciate that the Government, realising that possibility, seek to be able to act on behalf of the small man. It is indeed a possibility that we have here a case of maintained legislation which would be far from desirable, where the manufacturer says, "I will not go to the courts and apply. I will stir up some interest in a Government Department and get them to apply on my behalf. I will get a few Questions asked in the House and I will ask Members of Parliament to write to the Government Department to ensure that the patent is endorsed, 'licences of right' under the procedure of Clause 19 (1)."

This is a power which must be used most sparingly by Ministers. It is far better if they are to have this power they should have it on entirely the same terms as any other interested person. In fact, they will only apply on behalf of persons who are interested from a manufacturing point of view, either known or unknown to the Government department concerned. If this Amendment is accepted, a Minister of the Crown, as a person, will be put on the same footing as any other person, since he will only be acting for any person interested. We should remove the danger always prevalent in present day legislation of giving a Government department far wider powers than they require—powers which under Clause 19 (1) would enable them to poke their noses into any field of activity and to insist on patents being endorsed "licences of right" at the whim of some junior official of any Government department acting on imperfect evidence without any right of appeal from the patent holder.

It is noteworthy that Clause 19 gives no protection at all to the holder of a patent. The protection is contained in Clause 16 which is successfully by-passed by the Government through the operation of Clause 19 (1). For that reason also, it is extremely desirable that this Amendment should be accepted in order to place the Minister of the Crown in the same position before the comptroller as any other interested person.

I beg to second the Amendment.

My hon. Friend the Member for Altrincham and Sale (Mr. Erroll) has made it clear that the powers which the Government are seeking in Clause 19 can be dealt with adequately under Clause 16, and that there really is no need for the Government to take the specific powers outlined in Clause 19. Our case on this issue is strengthened when one appreciates that, under Clause 19, the Government will not be required to fulfil the conditions laid down in Clause 16. We cannot see why a Government department should have the authority to go to the comptroller and insist upon this action without having to fulfil the conditions which would be required to be fulfilled by a normal applicant under Clause 16. In those circumstances, we think that our Amendment would make for a much more satisfactory state of affairs than exists under Clause 19.

The hon. Member for Bucklow (Mr. W. Shepherd) may not have had in mind all the provisions of Clause 19 (1), which he will see provides:

"…. any Government department may apply to the comptroller upon any one or more of the grounds specified in section sixteen of this Act for the indorsement of the patent with the words "licences of right" or for the grant to any person specified in the application of a licence under the patent; and the comptroller may, if satisfied that any of those grounds are established, make an order in accordance with the application."
I think that disposes of the gravamen of his argument.

The hon. Member for Altrincham and Sale (Mr. Erroll) began by going near to, but not quite touching upon, a subject which caused much controversy in our earlier discussions; that is to say, whether it is or is not the fact that patents are suppressed. I feel that the House would agree with me that it is not desirable or necessary to embark upon that subject for the purpose of deciding whether this Amendment should be accepted.

What the hon. Gentleman does by his Amendment is to take away from Clause 19 (1) most of what is there and put it in Clause 16 (1), but he leaves out something very important which is in Clause 19 (1), the existence of which operates in the interests of the patentee. The hon. Gentleman asks why we do not insert in Clause 16 (1) the reference to a Minister of the Crown, by which he suggests that we should, at one fell swoop, overcome the difficulty about the applicant not having a public interest in the subject-matter of the application. Then, he says we have done all that we need to do by giving that power in Clause 16 (1) and removing it from Clause 19 (1).

The Amendment would, it is true, give most Departments, but not all, the right which they now possess under Clause 19 (1). The phrase "Minister of the Crown" would not include all Departments, as a matter of drafting. It would not include the Board of Admiralty, and so it would be inadequate for that purpose. The words "Government Departments" however, constitute an expression which is constantly used in legislation of this type, and which is well understood as the accepted expression to cover all Government Departments. The Amendment, therefore, is worse than the text in that respect, to start off with.

The radical objection to the Amendment is this. If it were accepted, it would mean that some Ministers and some Departments would be entitled, if they could establish the grounds set out in Clause 16, to apply to have a patent marked "licences of right." It would not enable any Government Department to apply for the grant of a licence to a nominee, and, in many circumstances, it might be very desirable to make the compulsory grant of a licence to a nominated manufacturer, which would be much less harmful to the interests of the patentee than the endorsement of the patent "licences of right."

Once the patent is endorsed "licences of right," we bring about a situation in which, upon reasonable and proper terms, "licence of right" must be granted, but it may not be necessary in the circumstances of particular cases to go as far as that. It may be preferable, both in the public interest and in the interests of the patentee, for the Department simply to appoint a particular nominated manufacturer to whom the licence is to be granted for the purpose of the use of the patent. Such a grant to a particular nominated manufacturer would leave the holder of the patent in a very much better situation than he would be if the patent was endorsed "licence of right."

12.15 p.m.

The Amendment seeks to enable the Department only to apply for the patent to be endorsed "licences of right," thereby inflicting injury to that extent upon the patentee, and taking away from the Government Department the right to apply for the relief which is much less injurious to the interests of the patentee—the grant of the licence to a particular nominated manufacturer.

In that case, litigation could proceed, because the Government Department would be applying solely on behalf of a particular potential manufacturer, and not in the public interest at all?

That is an error which underlies so many of the arguments which we hear from hon. Gentlemen opposite. It is an error which assumes that once a Government Department intervenes, the public interest is displaced through the intervention. The whole point of our vesting this power in Clause 19 (1) is to provide that the Government Department should be able to protect the public interest, and Government Departments will intervene, and will only intervene, when it is necessary in the circumstances of a particular case that public use, either complete or partial public use, should be made of the patent. The Amendment seeks to provide a more drastic remedy against the patentee and take away the least drastic one.

If I understood correctly the arguments of the hon. Gentleman, the Amendment would have precisely the opposite effect which he has in mind. It would mean that, if a Government Department with the public interest in mind makes an intervention by way of application to the comptroller, they could only ask for the drastic remedy of endorsing the patent "licences of right," and could not ask for the more modified process of granting to a particular manufacturer a licence to use that patent. We do not think that we should necessarily force upon a Government Department such a drastic step, if that Department thought that the public interest required its intervention and if it could so persuade the comptroller. We think it should be done by going half-way, but not the whole way, and, for these reasons, we think that the Amendment not only does not improve the Bill but is a little harmful of what we have in mind.

May I ask the right hon. and learned Gentleman a question on one point? If a Government Department intended to apply on behalf of one particular manufacturer, why could not that manufacturer himself apply under Clause 16?

Because a particular manufacturer is concerned with his own interests and the public department is concerned with the public interest, and that is why we give the public department the right to exercise the initiative in these matters.

Amendment negatived.

Clause 30—(Special Provisions As To Crown User During Emergency)

I beg to move, in page 22, line 23, to leave out Clause 30.

This matter was discussed during the Committee stage of the Bill, and we are raising it again in the hope that we may obtain an additional explanation from the Government. The Clause deals essentially with the protection of the position of a particular user in an emergency, and, from a careful study of it, the situation seems to be entirely covered by the Supplies and Services Act, and this Clause is therefore unnecessary. The Supplies and Services Act continues until September, 1950, and we have heard it stated at Blackpool at the recent Labour Party Conference, that it is the intention of the Government, if returned to power, to continue that Act permanently from year to year.

Therefore, there seems to be no possible justification for the repetition in a separate Bill of what are really powers under the Supplies and Services Act. Indeed, the powers would appear to be identical, with the possible exception of subsection (1, a), but that is a matter which was so self-evident as to hardly require statement in the Clause at all. We do not think that the Clause represents anything which is requirable; it is just another example of repetitive powers, of having one's cake and eating it as well, of having the blanket powers of the Supplies and Services Act, and, just to make sure, putting the relevant powers all over again into Clause 30 of this Bill. We therefore seek to delete this Clause in the belief that it is unnecessary and redundant.

I beg to second the Amendment.

As my hon. Friend has said, we have had considerable discussion on this point—not always clear, I fear—as to what the real intention was, and whether, in fact, the Supplies and Services Act could apply all the machinery necessary in the circumstances. What we now want to learn from the Parliamentary Secretary is whether this Bill goes outside the provisions of the Supplies and Services Act. If it does, it justifies the present Clause, but if it does not, then we feel that the Clause is unnecessary.

This is not actually a case of repetitive legislation as suggested by the hon. Member for Altrincham and Sale (Mr. Erroll). It is rather a case which is equally frequent, of the hon. Member making a speech without thinking, first of all, what he is ging to say. I admit that this is a complicated matter, but I believe there is a perfectly rational explanation, and if the hon. Member will bear with me while I take it rather slowly I shall try to satisfy him.

In the first place, there are no new powers being taken by Clause 30 which do not exist at the moment. In the second place, we are pulling together in Clause 30 and making permanent, not a state of emergency, but the form of procedure which we propose to use in relation to patents when a state of emergency exists, in accordance with the recommendation of the Swan Committee, who have recommended that we should set down in this Bill the particular form of procedure to be related to patents in a state of emergency, without, of course, addressing themselves—as they could not—to the question, which is a quite different one, of the circumstances in which a state of emergency might or might not exist.

The point made by both the mover and the seconder of this Amendment was that since these powers already exist by virtue of the Supplies and Services Act, they were unnecessary in this Bill. That is not true. In the first place, the Supplies and Services Act is temporary legislation, and if we are discussing this matter in serious terms, the hon. Member for Altrincham and Sale will realise quite well that the question of what might happen in the future about some possible perpetuation of all or part of the Supplies and Services Act has nothing whatever to do with this at all.

The real issue is that Clause 25 of this Bill, which we have already passed by, repeals Section 29 of the principal Act; and all the emergency powers at present available, that is, the same powers set out in Clause 30, derive from and are dependent on subsections (1, a) and (1, b) of Section 29 of the principal Act which we are now in the process of repealing. The complicated part of this comes in the chain of connection by which we build up from that Section of the principal Act, and I shall endeavour to put this as clearly as I can.

The provisions of subsection (1, a) and (1, b), of Section 29 of the principal Act were extended by Section 7 of the Emergency Laws (Transitional Provisions) Act, 1946, and that Section added to the purposes specified in subsection (1, a) various other purposes, namely, those specified in Section 1 (1) of the Supplies and Services (Transitional Powers) Act, 1945. Those purposes were further extended by the Supplies and Services (Extended Purposes) Act, 1947. I apologise to the House for the complications of that, but there is a chain moving from one piece of legislation to another, all of which rests on Section 29 of the principal Act which we are now repealing. All those powers are available until December, 1950, because they are preserved by the Emergency Laws (Miscellaneous Provisions) Act, 1947, and they would disappear except for this Clause which the Opposition are moving to leave out.

The moment Clause 25 of this Bill becomes law, Section 29 of the principal Act is repealed so that, unless we leave in Clause 30, the whole of that edifice falls to the ground. That would, I think, be obviously undesirable, and would also be contrary to the recommendation of the Swan Committee. I again apologise for the complexity of that, but I think it is a valid explanation, and I hope, therefore, that in those circumstances hon. Members opposite will not press to remove this Clause, which would, I assure them, be a regrettable thing to do.

After hearing how complicated was the answer, I think it was unfortunate for the Joint Parliamentary Secretary to say that I had not studied the subject properly. It is very difficult to follow the full implications of the subject, as the hon. Gentleman's answer indicated. However, I appreciate his reply, and beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 34—(Order For Account In Action For Infringement)

I beg to move, in page 26, line 13, to leave out from "the," to the end of line 15, and to insert:

"plaintiff shall be entitled, at his option, to an account of profits in lieu of damages.
(2) In the application of this Act to Scotland the foregoing subsection shall have effect as if for the words 'an account of profits' there were substituted the words 'an accounting and payment of profits'."
Our intention is to confer on the plaintiff under Clause 34 the right to claim an account of profits as an alternative to damages, as recommended by the Swan Committee. As the Clause stands, there is some risk that it might be read as giving the court an option, and since it is a right that we intended to confer and not an option on the court, we desire to make the change. The second part of the Amendment adds a new subsection which applies the Clause to Scotland.

Amendment agreed to.

Clause 35—(Proceedings By Licensee For Infringement)

I beg to move, in page 26, line 22, at the end, to insert:

"or, as the case may be, the profits earned by means of the infringement so far as it constitutes an infringement of the rights of the exclusive licensee as such."
This Amendment proposes that if an exclusive licensee brings an action for infringement he should be entitled to an account of profits in so far as the profits have been gained by the use of the invention to which he is exclusively entitled by his licence. The latter part of the Clause, as it at present stands, does not deal with this aspect of the matter, and the Amendment now proposes to put into effect the intention I have just explained.

Amendment agreed to.

Clause 38—(Co-Ownership Of Patents)

I beg to move, in page 28, line 16, to leave out from "others," to the end of line 18, and to insert:

"(3) Subject to the provisions of section thirty-seven of the principal Act, and to any agreement for the time being in force, a licence under a patent shall not be granted, and a share in a patent shall not be assigned, except with the consent of all persons, other than the licensor or assignor, who are registered as grantee or proprietor of the patent."
Clause 38 (2) of the Bill provides, among other things, that where two or more persons are registered as grantees or proprietors of a patent, each of those persons shall not be entitled to grant a licence or assign the whole or any part of his interest in the patent without the consent of the other grantees or proprietors. It has been suggested that, under the subsection as worded at present, where a co-grantee or a co-proprietor assigns his interest to another person and the assignment is not registered, the assignee might be able to assign his interest to some other person without the consent of the other remaining registered proprietor and thus avoid the provisions of the subsection. This Amendment would stop up that hole.

12.30 p.m.

Although we have disposed of some difficulties, there remain some in Clause 38 to which reference was made during earlier stages of the Bill, and I am sorry that the Government have not seen their way to consider the representations which were made to them. As the matter stands at present, the part-owner of a patent can indeed hold things up very seriously if he has a mind to do so. I think it is a pity that rather more could not have been done to remedy that situation.

Amendment agreed to.

First Schedule—(Minor And Consequen Tial Amendments Of Principal Act)

I beg to move, in page 40, line 5, to leave out from the beginning, to "and," in line 10, and to insert:

"as soon as may be after the acceptance of a complete specification, the Comptroller shall advertise in the Journal the fact that the specification has been accepted, provided always that on the date of the publication of advertisement the application and specification or specifications filed in pursuance thereof shall be laid open to public inspection and printed copies of the specification or specifications shall be available for purchase."
The purpose of this Amendment is to ensure that documents shall be laid open to public inspection and printed copies of the specification shall be on sale on the day on which the acceptance of the complete specification is advertised in the Journal. I believe there has already been some consideration of this matter behind the scenes, and it is understood that this matter will not come into the rules as was at first thought. Therefore, it is necessary to make the necessary provision in the Bill itself.

At present there is a discrepancy between the advertised date of the complete specification and the actual date on which printed copies are available. It is indeed a difficulty which arises in many other forms of printed papers, both Parliamentary and otherwise. The specification cannot be available for inspection by the public in the Patent Office until it has been returned from the printers. It is considered advisable that the Comptroller should wait a few more days until prints are actually available before advertising the acceptance. The Amendment provides that printed copies shall be available, since this is much more satisfactory than merely laying a specification open to public inspection in London. That is not much use to interested persons in the provinces.

The great complexity of many inventions today makes it impossible to gain adequate knowledge of the nature of the invention without a reasonably long study. Some inspection must in these cases be purely nominal, and the treatment of the date on which specifications are open for inspection as the date of publication is certainly a little more than a legal fiction. It is most essential that the printed copies should be available as soon as the announcement is made, or coincidental with it. By accepting our Amendment this procedure will be ensured.

I beg to second the Amendment.

This is only a small point, but I think it would meet the convenience of everybody concerned with patents, and I hope that we shall receive a favourable answer.

I am sorry, but I do not feel that the Amendment is desirable. Perhaps I should explain the point as I understand it. The amendment of Section 9 of the principal Act at present appearing in the First Schedule on page 40 of the Bill provides for the advertisement in the Journal of the date on which the specification will be open to public inspection, the date so advertised being the date of publication for the purposes of the Act. It will clearly be necessary for the date of publication to be shown on the printed specification, and it must, therefore, be marked on the manuscript specification before that document is sent to the printers.

It is intended that printed copies of the specification shall normally be available on the date of publication, the date being fixed in advance so as to allow for the time normally occupied in printing and in transmitting the printed specifications to the Patent Office. But, of course, the receipt of the prints might be delayed by abnormal circumstances—for example, an industrial dispute—and it would not then be practicable to delay the advertisement until the printed copies were, in fact, available, since, as I have stated, it will be necessary to mark the date of publication on the specification before sending it to the printers.

What we have in mind is that when the complete specification is accepted, the fact of acceptance, being a matter of interest to the public, will be advertised as soon as possible and the advertisement will also indicate the date when the specification will be published. The date so advertised will be printed on the specification, and on that date the documents will be thrown open to inspection in the Patent Office and printed copies of the specification will normally be sold.

The present wording of the Bill has been chosen to clear up doubts when the specification is published for the purpose of the Patent Acts. The intended procedure would secure early advertisement of acceptance and early publication of printed copies of the specification, whilst avoiding objections to the present procedure. As I understand the Amendment, it would have the effect of deferring advertisement of acceptance and would require by statute that the Official Journal advertising acceptance and the printed copies of the specification should always be available on precisely the same date to be decided and printed in advance. Such deferment and such requirement seem to me unnecessary and undesirable, and for the reasons which I have given I must resist the Amendment.

Having heard that explanation, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

I beg to move, in page 59, line 8, after "subsection (2)," to insert:

"after the word 'design,' where that word occurs for the second time there shall be inserted the words or for the determination of a dispute as to an invention under section thirty-nine of the Patents and Designs Act, 1949.'"
The object of this Amendment is to enable the Comptroller to require an applicant for determination of a dispute under Clause 39 who is resident abroad, to give security for costs. In other words, Section 73A (2) provides for the giving of security for costs by persons resident abroad in certain proceedings before the Comptroller, and this Amendment applies this provision of the existing law to the new proceedings under Clause 39. The next Amendment in line 9 is linked with this and is purely drafting and consequential.

Amendment agreed to.

Further Amendment made: In page 59, line 9, after "occur," insert "and the word 'compulsory.'"—[ Mr. J. Edwards.]

I beg to move, in page 60, line 40, at the end, to insert:

"and after that subsection there shall be inserted the following subsection:—
'(1A) Rules under this Act may authorise the comptroller to refuse to recognise as agent in respect of any business under this Act any person, not being registered as a patent agent, who in the opinion of the comptroller is engaged wholly or mainly in acting as agent in applying for patents in the United Kingdom or elsewhere in the name or for the benefit of a person by whom he is employed.'"
This Amendment is one to which I referred earlier, and is in accordance with the undertaking which I gave in the Committee stage to go as far as I could in helping to maintain and improve the standing and professional competence of patent agents.

It is indeed most satisfactory to find that the Government have been able to see their way to accept the spirit of our intentions, and it is to be hoped that the contents of the Bill will be of value to the people it will affect and of general benefit to the community at large.

Amendment agreed to.

Further Amendments made: In page 63, line 30, leave out "or assignee of such a person."

In page 63, In line 31, leave out from "words," to "in," in line 32 and insert the personal representative."

In page 63, In line 37, after "by," insert:

"after the word 'design,' where that word occurs for the first time there shall be inserted the words 'or by the grant of a patent or the registration of a design on such an application.'"—[Mr. J. Edwards.]

12.41 p.m.

I beg to move, "That the Bill be now read the Third time."

I do not wish to make any speech other than to say that a number of the difficult points in this Bill were thoroughly thrashed out in another place, and although the changes made during the Committee stage and since have not been of any great consequence, they have nevertheless improved the Bill. I would say, in passing, that the hon. Member for Altrincham and Sale (Mr. Erroll) has shown an understanding of this Bill and a willingness to work on it which must have been a shining example to his hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller). My only trouble with the hon. Gentleman was that sometimes he espoused causes which would have met with the full approval of the patent agents and at other times he espoused causes which I am sure must have filled them with hate. But that is the result of having such diverse contacts and such a willingness to espouse the cause of anyone as long as it is related to the Patents and Designs Bill. I wish to express my gratitude to anyone who has helped in any way to improve the Bill, and I hope we may now dispose of it.

12.42 p.m.

I should like to thank the Parliamentary Secretary for his kind remarks about the work I have put in on this Bill, though I would not like him to think that I merely represented any one body of persons interested.

I am sorry if the hon. Gentleman misunderstood me. That was not the point I was making. I simply pointed out his diversity of interests, some of which were inconsistent one with the other.

Remarks could be made about the evils of consistency, but I shall not weary the House with them. At least I sought to obtain the widest views which could improve the Bill. It is rarely that we have a Patents Bill introduced into this House, and I hope that the interval between the passing of this Bill and the introduction of the next one will not be so long, because, while the Bill is good in its present form, one or two matters are still left open to doubt and our future practice may well show them to be incorrect. I hope it will be possible, therefore, in the course of the next year or two, perhaps, to introduce a smaller Bill to deal with such matters.

There is no doubt that a Bill of this kind is of a highly specialised character and is extremely difficult to follow, but it is less than fair if the great principles behind it should be altogether obliterated by the mass of verbiage to which a popular paper such as the "Evening Standard" was prepared to devote a whole leader the other evening. In fact, that paper is showing a quite remarkable interest in new inventions, good and bad, in a series of illustrations taken from a current book.

I hope that our discussions on this Bill will have served to demonstrate to hon. Members opposite some of the fatuities to which they are normally subject. We had the case only two years ago of the present Secretary of State for War being called from his office to inspect an atomic motor car. He was so credulous as to inspect it himself, and I think he even believed the inventor who said, when the motor car would not move, that the motor car manufacturers had sabotaged his invention. I hope that the passage of this Bill will see an end to the stupid assertions often made by hon. Members opposite regarding inventions and their suppression. This Bill provides the answer to all the criticisms of the past and, if passed by the Government, should enable the present system of invention and the development of new ideas to thrive and prosper in the future even more than it has done in the past.

Question put, and agreed to.