PATENT LAW AMENDMENT BILL. (Hansard, 5 August 1851)

The ATTORNEY GENERAL
stated that as this clause originally stood, a person who applied for a patent would be entitled to protection for six months on depositing a specification, and obtaining a certificate from an Examiner that it was a true description of the invention, and no one would have an opportunity of opposing it until the period of provisional registration had expired, and the inventor applied for his patent. It had, however, been said, and he thought there was a good deal in it, that it would be objectionable to prevent a party whose rights would be interfered with by the new patent, from opposing it until six months after provisional registration. He therefore proposed to amend the clause, so as to direct the Commissioners to cause every application made for provisional protection to be advertised in the London Gazette, so that any person having or claiming to have any interest in the intended patent should give notice to the Examiner, within fourteen days after such advertisement, of any objection he might have; and protection should not be granted until the Examiner had certified both that the specification correctly described the invention, and that the objections made to the grant ought not to be allowed.

§ MR. MUNTZ
said, he should like to know what was the meaning of the word "utility" in the clause? Did it mean that the invention was to be useful to the public before a patent would be granted? He did not think that any one or two individuals could decide as to the utility of an invention. He thought it would be better if the word were omitted altogether, and he should take the sense of the Committee upon it.

The ATTORNEY GENERAL
said, that the "utility" contemplated by the clause was public utility; the word had been introduced at the suggestion of the Manchester Association, in order to prevent absurd and trifling inventions obtaining a protection, which might stand in the way of subsequent and really useful inventions.

MR. CORNEWALL LEWIS
differed from his hon. and learned Friend, and thought that the "utility" referred to was private utility—utility to an individual from an object which had an exchangeable value.

§ SIR JAMES GRAHAM
said, that the difficulty was as to the construction to be put on the word "utility." On the one hand it might be understood to mean public utility, while on the other it might be regarded in the sense of utility to the person who sought to obtain a patent for his private gain; and it was one of the inconveniences arising from proceeding with such a measure at so late a period of the Session, that there could be no opportunity of discussing points of such nicety. He entertained objections to this measure, because it proposed to create a set of new officers, designated Examiners, who, it appeared to him, were to perform the functions which had hitherto been performed under the responsibility of the law advisers of the Crown. It was impossible to believe that the law officers, before they formed a judgment upon an application, and advised the Crown to grant a patent, did not satisfy themselves that the invention was likely to be useful, and was of such a character as to justify them in recommending the Crown to allow an exclusive right to be exercised against the community for a limited period. He wished to ask what had been the principle upon which the law advisers of the Crown had hitherto recommended patents, with regard to the two points—novelty and utility? He 1897 had no doubt, although the law officers of the Crown were accomplished gentlemen, and had an opportunity of informing themselves with respect to improvements in trade and commerce, that before advising the Crown to grant exclusive patents as against the public, they had called to their aid persons who had really performed the functions of the proposed Examiners. The law officers had heretofore covered all these inquiries, but now it was sought to relieve them altogether of the responsibility. It appeared from this Bill that they were to delegate the inquiry to Examiners, on whose report—without exercising any judgment of their own, except within the limits of such report—the law officers were to ground their recommendation to the Crown.

The ATTORNEY GENERAL
believed that since he had been in office no patent had been granted for any invention the usefulness of which was not apparent. [An Hon. MEMBER: To the public, or to the individual?] He meant to the public—that was always his first consideration; for, so far as the individual patentee was concerned, he must take his chance. As the existence of a patent right sometimes prevented others from embarking in the same course of invention, he (the Attorney General) did not think that a patent for an invention that would be absolutely useless to the public, ought to be granted. He did not consider that under this Bill the legal advisers of the Crown would be bound by the report of the Examiners, who, in his opinion, would act, as it were, as the pioneers of the law officers, and direct their attention to the different points of each case. In many cases which had occurred under the existing law, the legal advisers of the Crown had called in the assistance of scientific gentlemen, who had made reports to them, or aided them by personal suggestions. The advice thus obtained, however, was a sort of private assistance; and he thought it would be better that such assistance should be rendered by persons before the public, who were clothed with a certain official character, and who were responsible to the public, which was the course proposed by this Bill. Still he must say, that he would never consider himself bound by the report of the Examiners; and indeed the 15th section of the Bill provided that if any person deemed himself aggrieved by reason of any report of the Examiners, such person might 1898 claim to be, and should be, heard before the law officers themselves.

§ MR. HENLEY
thought that it was still a question whether the Examiners would not discharge to a great extent the duties of the law officers; nor did he see the good of appointing them, when it appeared that such assistance of this kind as was required was already provided by the law officers of the Crown. He thought that the word "utility" would be better out of the clause.

The ATTORNEY GENERAL
said, that he had no objection to strike out the word "utility."

MR. RICARDO
opposed the Motion, because, although all the gentlemen examined before the Committee concurred in the, opinion that no tribunal could decide upon the utility of inventions, still he thought they had no excuse for granting these monopolies, except on the ground that the inventions were beneficial and useful to the public. At the same time he did not think it possible for any person to determine in all cases whether an invention would be useful to the public or not—that was evident to any person who read the evidence taken before the House of Lords.

§ SIR DE L. EVANS
thought it better that the word should be left out. The great merchants of Manchester were desirous that the word should be left in. That made him more suspicious of the word.

The ATTORNEY GENERAL
moved that the word be struck out.

§ MR. W. WILLIAMS
said, the further they got into the Bill the more evident it was that they were proceeding in the dark. The hon. and learned Gentleman (the Attorney General), who defended the word "utility," now moved its omission.

§ MR. J. GREENE
said, that if the invention was useless, it did not in the least concern the public; but an invention, though useless in itself, might contain the germ of future utility. He thought that it would be better to leave out the word.

MR. CORNEWALL LEWIS
said, that what he meant by private utility, was utility which would be useful to the individual in exchange. That could not be, of course, unless it was useful to the public.

§ SIR JAMES GRAHAM
said, that the hon. Member for Stoke (Mr. Ricardo), who had the advantage of reading the evidence taken before the House of Lords on this subject, which he (Sir J. Graham) 1899 had not, had stated that no person could read that evidence without feeling that no tribunal could decide on the utility of an invention. That being so, he came to a different opinion from the hon. Member, and would vote against the retention of the word. At all events if it was retained, the word "public" should be put before it.

§ MR. J. L. RICARDO
said, that there was no excuse for patents at all, unless their utility was taken into consideration. A patent in old times, for instance, had been granted for a fish-call, by which fish were to be induced to enter the nets of fishermen. That was undoubtedly quite a new thing; but would the Attorney General grant a patent for such a thing as that? Then, again, a patent had been taken out for making people go to sleep to the sound of soft music. That was not only novel, but useful; but would the Attorney General grant patents for such things as these? Would the hon. and learned Gentleman grant a patent in such a case?

The ATTORNEY GENERAL
said, that the hon. Gentleman's objections and most of the objections which bad been urged, applied to the question whether there should be a patent law at all. That was to discuss the principle of the Bill. They had now arrived at a very late period of the Session, and their object should be to extract all the good that was possible from this measure, the House having decided that the principle of patents should be adhered to, at least for the present. He had been asked to leave in the word utility, particularly by the manufacturers of Manchester; hut, from the discussion in that House, he was of opinion that it would be better to omit it.

§ MR. LABOUCHERE
stated (in reply to a question from (Mr. Spooner), that the present state of the law produced a great deal of complication and difficulty; for while it was one of the prerogatives of Her Majesty to grant patents extending over the whole British empire (with the exception, perhaps of India, about which there was 1900 some doubt), the local Legislature of a colony had also power to grant a patent for that colony; the consequence was, that patents were granted by both the Crown and the local Legislatures, and the greatest difficulty and confusion arose. It had, therefore, been thought best to confine the patents granted here to the United Kingdom, and leave the Colonies to deal with the matter as they thought fit. And, in fact, this was now practically the case. For seeing the great confusion that resulted from this double granting of patents, the Secretary of State for the Colonies intimated to the Attorney General, about six months ago, that he wished no patents should be issued for a colony without consulting him; and without a special case a patent would not be issued.

§ SIR JAMES GRAHAM
thought this discussion became more complicated as it proceeded. Here was another most important question incidentally raised. The right hon. Gentleman (Mr. Labouchere) had now gone to the root of the whole question of patents, and, in the exercise of the large powers entrusted to him, said, that in future no patents should be granted which should extend to the Colonies. The Government had, therefore, virtually decided that any invention perfected and patented at great cost here, should be used freely by the colonists. He could not conceive a stronger argument against the principle of the patent law, or one that more showed the necessity of postponing this Bill. There really was not time now to give due consideration to a measure involving such interests as this did. It came down but lately from the House of Lords, and already thirty new clauses had been introduced into it in the House of Commons. Besides the provisions respecting compensation, those with regard to fees were changed; but there were still great objections to be urged to them; there ought not to be a farthing paid for the establishment from the public purse; the fees should be so regulated as to pay the whole expense of compensation to the old, or of salary to the new officers; the system must be made to pay its own way. Clause by clause the Bill would be found to touch important principles not yet fully discussed; and the further the House proceeded, the more they would become aware of the importance of the subject, the insufficiency of the time they could now devote to it, and the inadequate attendance of Members re- 1901 presenting the great commercial and manufacturing interests. He would not interrupt the progress of the Bill by making a speech; but he did not see how justice was to be done to so important a subject within the time that could now be given to it.

§ MR. LABOUCHERE
was very sorry to find the right hon. Baronet casting the weight of his great authority into the scale of the objectors, hitherto very few in number, to the passing of this Bill in this Session. The disappointment on the part of the public, and the inconvenience sustained if it should not pass, would be so great, that nothing on his (Mr. Labouchere's) part should be spared to prevent its postponement, nor would he be responsible for its being deferred—but of course he was in in the hands of the House. It would be very inconvenient to be discussing continually whether there should be a patent law or not; the Bill had been read n second time, proceeding as it did upon the principle of maintaining the patent law, but removing glaring defects in it; and Gentlemen opposed to any patent law might be willing to amend palpable defects. As to new clauses, the Attorney General had recast the Bill, and split up clauses, and multiplied their number; but it had not been done by introducing new matters and making substantial alterations. The money clauses were, of course, for the House of Commons to settle.

§ MR. HENLEY
said, that the right hon. Gentleman himself (Mr. Labouchere) had thrown this new apple of discord amongst them; and it seemed to him that a more important question could not have been raised than that which related to patents in the colonies.

§ MR. FORSTER
was surprised at the opposition this Bill met with. He thought that it was settled that it should he passed without opposition, and that the principle should be discussed next Session. He thought the Government ought to receive the greatest indulgence from the House.

§ MR. J. L. RICARDO
could not imagine what degree of indulgence the Government expected when they brought in a Bill of 51 Clauses at this period of the Session on so important a subject, and wished to pass it without fair discussion. This question of the Colonies opened up the whole principle; and, not content with that, an hon. Gentleman (Mr. Cardwell) had raised also the question of sugar re- 1902 fining. In the colonies sugar was refined without any patent, whereas in this country the refiners had to pay enormous royalties, He knew one house which paid 20,000l. a year; and if the system was good for anything, it was surely as good for the Colonies as it was for this country.

§ MR. LABOUCHERE
assured the hon. Gentleman that the Bill did not alter the law one tittle with respect to sugar refining.

§ MR. CARDWELL
, notwithstanding this assurance, would remind the House of the case of the sugar refiners of Liverpool, who complained of this part of the Bill, and from whom he had presented petitions to the House to that effect.

§ MR. LABOUCHERE
explained, that in times past, patents did extend to the colonies, and that it was only in future that patents with such powers would not be granted.

§ SIR JAMES GRAHAM
said, it appeared to him that the right hon. Gentleman had raised a question not only of fiscal importance, but one of great constitutional moment, and one that affected in the highest degree the prerogatives of the Crown. It appeared from the statement of the President of the Board of Trade, that the Crown had the prerogative of granting patents in the Colonies. This prerogative had been been restricted by Her Majesty's Ministers; and now the House of Commons was called upon to give legislative effect to this restriction. There was also evidently great division of opinion amongst Her Majesty's Ministers upon this subject. The Vice-President of the Board of Trade in the House of Lords (Earl Granville), when introducing this Bill, expressed a decided opinion adverse to the principle of patents altogether. The noble Secretary for the Colonies (Earl Grey) agreed with the Vice-President of the Board of Trade; and now it was found that the advisers of the Crown had put an end altogether to patents in the Colonies. Was it right, then, to continue a system in England which had been condemned in principle by the advisers of the Crown? And were they to legislate upon a question which the divisions in Her Majesty's Council rendered still more doubtful?

§ MR. LABOUCHERE
assured the right hon. Baronet that he was mistaken. The Vice-President of the Board of Trade (Earl Granville) had certainly expressed an opinion, shared by the majority of the Lords' 1903 Committee, that the principle of patent laws was vicious, and ought to be discarded; but he and all the Committee held it most desirable that this Bill, remedying monstrous and glaring evils in the present system, should pass into a law at once; and they thought that the public opinion of this country was not ripe for so great a change as the abolition of patents. He (Mr. Labouchere) had not thought it right to express any opinion to the House upon the subject, not considering it to be fairly before them. The Secretary for the Colonies had expressed no opinion upon the principle of the patent law; all he had said was, that there should not be two ways of granting a patent for a colony—by the Crown here, and by the local Legislature; and that it should be left to the local Legislature, and not granted by the Attorney General here, at least without reference to the Secretary of State, and special ground laid. But patents were not done away with in the Colonies, or forbidden to be granted by the local Legislatures. If the right hon. Gentleman had determined to oppose the Bill passing this year, it would he vain to contend with him; but such a result would be a great disappointment to very many persons, and the law would be left in a most scandalous state.

§ MR. HENLEY
apprehended that the House was asked to confirm the decision of the Secretary for the Colonies, and to restrain the exercise of the prerogative as to the Colonies in future; and this was to be done with great haste and little consideration, because some five hundred people had got things locked up in a glass house, and wanted to take out patents, and it was desired to give them an improved mode of doing it. Why not strike out this clause, and leave this question open?

§ SIR J. GRAHAM
observed, that this clause altered the law materially, and yet did not appear necessary for the objects desired by the right hon. Gentleman (Mr. Labouchere).

§ MR. LABOUCHERE
would deeply regret if he should not be able to pass this part of the Bill, but certainly felt the great importance of passing as much of it as he could secure. He must consider the point in conjunction with the Attorney General, and let progress be reported now.