HC Deb 06 August 1851 vol 118 cc1912-26

Order for Committee read.

House in Committee.

Clause 18.

MR. W. WILLIAMS

said, it had been alleged that great disappointment would be felt if this Act were not passed; but though not opposed to the amendment of the Patent Law, he thought a Bill of so great importance ought not to be forced through the House at so late a period of the Session. The property in the Crystal Palace was sufficiently protected already; but if he were assured that no portion of the public money would be required to carry the Bill into execution, he should not be disposed to persist in his opposition.

MR. LABOUCHERE

begged to remind the hon. Member that the protection granted to the exhibitors at the Great Exhibition lasted only one year; but it was not on their account only that the Government thought it desirable that this Bill should pass into a law. He (Mr. Labouchere) pressed this Bill on behalf of the great body of inventors in this country, and on behalf of the public, who were interested in the carrying it into practical effect; for the object of the Bill was to substitute a simple system of obtaining patents for the complicated one which now existed. He greatly regretted that the Committee had been called upon to consider a Bill of that importance at that advanced period of the Session; but it was not his fault that it had not come earlier before them. He might remind the Committee at the same time that the Bill had been sent down late from the House of Lords, where an able Committee sat upon it, and gave to the measure as much consideration as had ever been bestowed upon any other that had come before Parliament. He might also state that the Bill was substantially the same as that which came from the other House of Parliament.

MR. BROTHERTON

took that occasion to say he regarded the Bill as an immense improvement on the existing law, under which many poor men had been deprived of all interest in the discoveries and inventions which they had given to the world, in consequence of not having at their disposal the means of procuring a patent. His constituents would greatly regret if the Bill were not passed.

MR. J. GREENE

thought a Bill which had been introduced into the other House of Parliament at the eleventh hour, ought to be considered with very great care by the popular branch of the Legislature. He felt it his duty to offer all the opposition in his power to the present Bill, though he admitted in some respects it was an improvement on the existing law. The most objectionable part of the Bill, to his mind, was the vesting in the Examiner a power of disclosing to others, possibly without intention, the secrets of an invention, which would do away with its value to the person seeking to make it the subject of a patent.

In reply to a question from Mr. HENLEY,

The ATTORNEY GENERAL

said, the existing law, as applicable to patents in the Colonies, was to remain as at present, leaving the question of altering it, as regarded the Colonies, to be discussed on a future occasion. He proposed to insert words into the present Bill which would still enable the Crown to grant patents in the Colonies.

In answer to Mr. J. BELL,

The ATTORNEY GENERAL

said, the owner of a patent which under the existing law applied only to England, would be empowered by the present Bill to extend it to another part of the United Kingdom on payment of one-third of the fees.

MR. J. L. RICARDO

asked if he was to understand that an inventor taking out a patent for one of the three parts of the United Kingdom would only have to pay one-third of the fees enumerated in the schedule to the Bill?

The ATTORNEY GENERAL

said, the provision respecting the payment of one-third of the fees only related to patents already in existence, which it might be wished to extend to any other of the three parts of the United Kingdom to which the patent at present did not apply.

MR. J. L. RICARDO

said, he found that, so far from the Bill having a tendency to cheapen patents, it would greatly add to the expense attendant on their procurement. In 1846, there were 494 patents granted for England, at a cost of 93l. each; 178 were granted for Scotland, at a cost of 63l. each; and 90 were granted for Ireland, at a cost of 119l. each. He found that the cost of taking out a patent under the present Bill, which patent would extend to the whole of the United Kingdom, would be 175l. The aggregate cost of the 762 patents taken out for England, Scotland, and Ireland, in 1846, was 67,866l.; whilst, if they had been taken out under the present Bill, their aggregate cost would have been 133,350l. He wanted to know from the Attorney General if the Bill provided any means by which the evil of patents costing more under it than under the existing law, could be avoided? In other words, whether, under the Bill, a person might take out a patent for only one of the three parts, instead of the whole, of the United Kingdom?

The ATTORNEY GENERAL

said, there was a fallacy in the reasoning of the hon. Gentleman (Mr. Ricardo). The hon. Gentleman assumed that every patent for which an application might be made, would proceed to its last stage, and that the applicant would be called upon to pay the three sums chargeable at the three different stages of the patent. But experience had shown it was not fair in the hon. Gentleman to assume that every patent applied for under this Bill would proceed to its last stage; for, of the patents which were now annually taken out, a very large proportion indeed—he (the Attorney General) believed he might safely say nine-tenths—ended in nothing, and produced no benefit either to the public or to the parties taking out the patents. By the law, as it stood at present, a man seeking to obtain a patent was obliged to pay the whole charge of procuring the patent at once, before he had an opportunity afforded him of putting his invention to the test of experience. But the Bill before the Committee proceeded on this principle, that, although there would be the same number of patents taken out for the first stage of three years as at present, yet, by the expiration of that term, the number of patents would be so weeded of all those which were not likely to produce benefit to the public or to the parties, that a comparatively small proportion would proceed to their final stage. Few of the original number would be renewed at the end of the first three years, and fewer still at the end of the first seven years. The Government had thought, on that view of the case, that it would be desirable to charge only a comparatively small sum for the granting of a patent in the first instance, in order that if the patentee, after a trial of three years, found his invention not likely to he advantageous to himself or the public, he might be at liberty to abandon it, and to do that without being subject to the serious expense to which he was at present liable.

MR. HENLEY

said, the Attorney General had assumed that nine-tenths of the patents taken out would prove worthless. If that were so, the remaining one-tenth would be in a worse position under the new than the old law, because the patentees would pay a higher price for their patents (being obliged to extend them to the three parts of the United Kingdom) than they had paid for extending them to England alone under the old law. When the Committee came to consider the compensation clause, the division of nine-tenths which had been assumed by the Attorney General would lead to some considerable discussion. He (Mr. Henley) would take the liberty of asking what prospect there was of this Bill becoming law? It was understood that Parliament was to be prorogued on Friday. Supposing the Bill passed through Committee that day, it might be read a third time to-morrow, and, as amended, it would have to he sent up to the Lords on the next day, who would have to consider fifty-four clauses, thirty of which had originated or been recast in the Lower House. Was it worth while, he would ask, to take up the time of the Committee with this Bill under those circumstances?

MR. LABOUCHERE

would repeat that he attached great importance to this Bill, and had done all in his power to induce the House to proceed with it. He was not ignorant, however, that it was in the power of even a very few Members, who were determined to obstruct the passing of a Bill, to do so by getting up repeated discussions, and going over again and again the same arguments. He could only appeal in such a case to what he was satisfied was the public feeling out of doors, and to the fact that a large majority in that House were exceedingly desirous to see the Bill pass; while at the same time, he had no right to complain of Gentlemen following the line of conduct which they thought in accordance with their duty. The Bill had received, in the other House, the most attentive consideration; and he firmly believed that there was a general concurrence in its favour. With regard to the other House, it would be for them to consider whether or not they would consent to the Amendments which had been made; but, knowing that a vast majority of the other House attached great importance to the measure passing during the present Session, and as the Amendments did not alter materially the provisions of the Bill as originally introduced, he believed they would have no great difficulty in agreeing to the adoption of those Amendments. The Government had done their duty in pressing forward the measure, and it would not be their fault if it did not pass during the present Session.

SIR JAMES GRAHAM

said, his right hon. Friend appeared to be satisfied that the Government had done its duty; but that was no reason why Members of that House should neglect theirs. The right hon. Gentleman had assumed a tone which would lead hon. Members to believe that he conceived there was an unfair desire on the part of the Committee to obstruct the passing of the Bill. He (Sir J. Graham) was not aware that anything like unfair obstruction or vexatious opposition had hitherto been shown to this Bill. He thought it the duty of hon. Members in that House to canvass the details of this Bill, quite as much as it was the duty of the Executive to push it; and he was not I aware that hon. Members would discharge their duty if they were to take this Bill wholesale, without discussion and without investigation, considering the great importance of the subject they had then under their deliberation. He, for one, would not be a party to any vexatious opposition to the Bill; but he could not understand that hon. Members would discharge their duty by refraining from making such observations or objections as occurred to them during the progress of this Bill. The Bill could only pass through Committee that day; it must be reported to-morrow with large Amendments, and it could not be read a third time before Friday. The House of Lords must consider the Commons' Amendments, and the Commons must have a conference with them, unless the Lords approved of those Amendments without a conference with the Commons. The right hon. Gentleman said, this Bill had been most carefully considered elsewhere. What became of that very careful consideration when hon. Members were now talking of recasting the measure? The Bill, as introduced by Her Majesty's Government, was altered in the other House of Parliament as regarded the Colonies. The clause they were then debating was introduced omitting the Colonies; a disposition had been manifested by that House to deal with that point, and then after a quarter of an hour's discussion, the Government told the Committee that the Colonies were nothing compared with the great urgency of passing this Bill. Then came the extraordinary announcement on the part of the Attorney General, that nine-tenths of all the patents hitherto granted were utterly useless to the public and to the parties by whom they were obtained; and yet the Committee was then asked to make provision for the continuance of a system which had been so represented. That was no answer to the statement of the hon. Member for Stoke-upon-Trent (Mr. J. L. Ricardo) as to the remaining one-tenth. It was presumed that only that one-tenth of the patents which might be granted would be carried through all their stages. If that were so, that one-tenth would be rendered more expensive, so far as this Bill was concerned, than at present. That, he (Sir J. Graham) said, was an irresistible argument. The argument was only persuasive on the part of the Attorney General, as applied to the nine-tenths of the whole which the hon. and learned Gentleman said would be useless. Hon. Members were not to be mere mutes as respected this Bill; they must discuss the Bill. If they were not to discuss the Bill, it had better be left in the possession of the Government, to be dealt with as they pleased.

MR. LABOUCHERE

said, the right hon. Gentleman had told them they were not to be mutes on the occasion of passing so important a Bill; considering, however, that they had discussed the Bill at two consecutive sittings in Committee, he thought Gentlemen opposite could hardly be regarded as mutes, unless it was in the sense understood in Eastern countries, where mutes were employed to strangle. The last time they discussed the measure, that right hon. Gentleman (Sir J. Graham) urged upon the Government whether it would not be well to leave out the Colonies—doing so, as he believed, not in an obstructive, but in a friendly spirit, on the ground that it was part of the measure which was to simplify the patent law of this country. In the simplicity of his heart, he (Mr. Labouchere) adopted his advice—hoping that he would have the support of the right hon. Gentleman; but now the right hon. Gentleman fiercely attacked him for having left out the Colonies, and made it a charge against the Government. He had nothing more to say upon the point, and he hoped the Committee would proceed at once to consider the clause.

SIR DE LACY EVANS

asked if there did not appear to be something like a factious opposition to this measure? It was important that the public should know why this Bill was stopped in its progress, two or three divisions having already taken place upon it. He very much deplored the course taken by the right hon. Baronet (Sir J. Graham), and he thought the right hon. Gentleman should tell them distinctly whether he was opposed to the Bill or not. If the Bill was lost, the responsibility would be upon the right hon. Gentleman.

SIR JAMES GRAHAM

said, he would not shrink from demanding on behalf of the public an ample discussion of the whole details of this Bill; and with regard to the frankness with which he had expressed his opinion, in consequence of the speech of the right hon. Gentleman opposite (Mr. Labouchere), he (Sir J. Graham) did not address the observations which he had done to the Committee, until the right hon. Gentleman had, in very distinct terms, charged him with offering a vexatious opposition to this Bill. He (Sir J. Graham) altogether denied that charge. With regard to the question of the omission of the Colonies, the right hon. Gentleman (Mr. Labouchere) said, he (Sir J. Graham) had expressed himself adverse to the inclusion of the Colonies, and that he had desired that they should be omitted; but that now he was desirous that the Colonies should be reinserted in the Bill. He had not expressed any such opinion. He was disposed to believe that it was wholly inexpedient, when the Government had declared that it was not their intention to change the statute law of the Colonies in regard to patents. In the Crown colonies, the Secretary for the Colonies would still exercise his discretion in directing the law officers to grant patents; and the Committee knew that the noble Lord was against extending the law of patents; and in the representative colonies they must proceed by legislation, and they could not pass any statute with reference to patents which the Secretary of State had not the power of suspending. Of course, the Secretary of State would be uniform in his opinion, and would exercise that power of suspending the extension of the law of patents to those representative colonies. He (Sir J. Graham) was asked, if he was favourable to the patent law as it now existed? That question had never been debated. It was not debated on the second reading of the Bill; and he repeated the observation he made before—that they were in an extraordinary position as respected the manufactures and the commerce of this country. If they were to take the Government as their guide, they had the President of the Board of Trade pressing this Bill forward in the House of Commons; and they had the Vice-President of the Board of Trade in the other House declaring that he was altogether opposed to the principle of the law of patents. Then they had the Secretary for the Colonies declaring against the extension of patents by the law officers of the Crown to the Colonies; and the Attorney General agreeing with the right' hon. Gentleman the President of the Board of Trade in charging hon. Members with offering a vexatious opposition to this Bill. He (Sir J. Graham) said, if they looked to the principle of the Bill, so far from there being anything like united counsel on the part of Her Majesty's Government with regard to the great question of principle, it was quite clear there was a palpable di- vision of opinion; and, while that opinion was so divided, he did not think it was at all unfair on the part of independent Members to ask, either directly or indirectly, that the principle of patents should not be altered at so late a period of the Session.

The ATTORNEY GENERAL

begged to say, with regard to the noble Lord the Vice-President of the Board of Trade, that while the right hon. Gentleman had represented him as opposed to the principle of the law of patents, he forgot to state that the present Bill was introduced to the other House by that noble Lord, and that he took care at the time he introduced the Bill to say, that though he did entertain views opposed to the principle of a patent law, he was conscious that he was in a minority upon the question, and that the country was not prepared to adopt the views which he held. The whole of the hon. Members in that House who had taken any part in that discussion had affirmed the principle that patents should continue. Then, if it was advisable to continue patents, the present state of the law being defective, it was necessary to change that law. The right hon. Member for Ripon, and the hon. Member for Stoke-upon-Trent (Mr. J. L. Ricardo), said, the present Bill would have a tendency to make patents more costly than under the old system, inasmuch as a man would now be obliged to take out a patent, for the three parts of the United Kingdom. But the difference was this—the patents which at present were not taken out for Scotland or Ireland were those of a less valuable character. The really good patents were those which were taken out for the whole of the United Kingdom. Then a patent, instead of costing, as it did at present, above 300l., would cost only 175l. Again, the inferior patents would not only extend to the whole United Kingdom instead of a part of it, but they would be had at a cost of 25l. for the first three years for the whole United Kingdom, instead of 96l. for one single division of it, as at present. He could not but think, therefore, that in point of economy there would be a great advantage to all classes of patentees. With reference to the charge of vexatious opposition to the Bill, the right hon. Gentleman the Member for Ripon had entirely misconceived what fell from his right hon. Friend (Mr. Labouchere). His right hon. Friend had merely called the attention of the Committee to this circumstance, that it they persisted in going again and again into clauses which had been already discussed on a former occasion, the consequence would be the loss of the measure for the present Session. The Bill only aimed at a simplification of the process by which patents were obtained; and as respected the questions whether patents should be extended to the Colonies, and whether the publication of a patent abroad would vitiate a patent taken out in this country, as these were matters not necessarily involved in the more immediate objects and advantages of this Bill, the Government had relinquished them; but they sought to achieve that which was the object of every one, namely, the cheapening of the process by which a patent might be obtained. He could not but think that was an object in achieving which the right hon. Baronet the Member for Ripon might have lent the Government his assistance.

MR. J. GREENE

did not see how legislation at the eleventh hour of the Session was likely to remedy the serious inconveniences alleged to attach to the existing law relating to patents. He had given the existing law a very deep consideration, and although he had never taken out a patent himself, he was connected with persons who had, and he was prepared to state, that though there were some evils incident to the present law, it was infinitely less objectionable than the proposed one.

MR. ROCHE

said, he entirely agreed with the noble Lord the Vice-President of the Board of Trade, that the patent laws should be abolished altogether. They might depend upon it that nine-tenths of the patent inventions under any law that could be passed, would be nothing less than so many stumbling-blocks in the way of improvement. The best thing the Government could do would be to withdraw the Bill altogether. They evidently were not agreed on the subject of patents. For himself he could say, that while he perfectly concurred with the Vice-President of the Board of Trade on the subject, he was entirely at variance with the right hon. Gentleman the President of the Board of Trade.

VISCOUNT PALMERSTON

said, he certainly thought it a most disorderly proceeding, that when they were considering the 18th clause of a Bill in Committee, they should be called upon to discuss a general question involving the principle of the Bill. On that point the House, he hoped, would allow him to say a few words. His hon. Friend who had just spoken was of opinion, as his words would import, that the law of patents ought to be abolished; and the conclusion his hon. Friend therefore drew was, that they ought to withdraw the Bill. If the rejection of the Bill would have the effect of abolishing the patent law, he could understand that argument; but if the only effect would be to leave the law as it was without the improvement which the present Bill was intended to make, he could not comprehend it. He appealed to the House whether they would not be acting more in accordance with order by going on with the discussion of the clauses of the Bill; and if it should appear that that discussion would occupy more time than the Session would afford, then the Bill must of course be postponed; but he certainly was of opinion that if they would at once proceed with the consideration of the clauses, the Bill still might pass this Session.

After some discussion on the opposition offered to the present progress of the Bill,

Clause, as amended, agreed to; as were also Clauses 19 to 23 inclusive.

Clause 24, with amendments, agreed to.

Clause 25 struck out. Clauses 26 to 48 agreed to.

Clause 49, providing for compensation to present officers out of the Consolidated Fund.

SIR JAMES GRAHAM

asked if the Government could form any estimate of the number of persons who would claim compensation under the clause, and of the amount of that compensation? There had been a most formidable return made to the House relative to the expense of patents, from which it appeared there were four offices—the Home Office, the Signet Office, the Great Seal Patent Office, and the Office of the Lord Chancellor. He would read to the House a few of the persons in those offices who received fees. In the Signet Office there was the first clerk and his deputy, the second clerk and his deputy, the third clerk and his deputy. In the Great Seal Patent Office, there was the patent clerk, the clerk of the haniper, the deputy clerk of the haniper, deputy-seals, and his (Sir J. Graham's) intimate friend, chaffwax, who had since disappeared. In the Lord Chancellor's Office, there was the sealer, the gentleman of the chamber, and the great seal clerk. These officers all received fees, and he believed it was contemplated to give them compensation. He wished to know whether the Government had formed any estimate of the gross amount of compensation which would be given, and whether they were prepared to state the number of persons who would have claims for compensation? Really, this was a matter of the gravest importance. The compensation to the Six Clerks in Chancery (for which he took great blame to himself) arose very much in this way. He might entertain a wrong opinion, but he entertained a very strong opinion, that the days of the patent law in this country were numbered. He did not think the law of patent would be long maintained, and assuming, for the sake of argument, that he was right, there would then be a statutable recognition of the claims of all these recipients of fees for compensation, not out of the fund from whence they drew their incomes, but out of the public purse. The patent law might he repealed, and they might have a recent statutable claim for compensation in perpetuity. He had erred in this particular in the. case of the Six Clerks in Chancery, and he was anxious that the error should not be repeated. The offices which were about to be abolished only received fees from the voluntary will of the people, and could have no claim against the public purse. They had not had a very amicable discussion this morning, but he did throw out this suggestion in an amicable spirit for the consideration of the Government.

The ATTORNEY GENERAL

begged the House to listen to the figures, which had been calculated on very good authority. The total cost of an English patent was 94l. 6s., divided into two parts, that of public payments and private payments. The private proportion of the gross amount was 22l. 14s. 4d., of which 9l. went to the law officers, and might, therefore, be thrown out of consideration. Even then, he was told, they would be able to absorb at least one-half of that reduced amount by taking into the service of the present Commission some of the old officers, and of course they would not give compensation to any officers who were still made available. The officers in the Home Office discharged other duties, and were paid by salary, and, of course, being paid by salary, they would continue to receive their salaries, and would have no claim for compensation. Very few of the present officers had the fees; they might take them, but they were carried to the public account in all cases in which the officers received salaries. In the Secretary of State's, in the Signet, and in the Great Seal Patent Offices, the officers generally, having other duties to perform, were paid by salary, and would therefore receive no compensation. He really believed, taking away those who were paid already by salary, those who were otherwise employed and were paid by salary, and those who would be employed under the new system, a very small amount of compensation would be necessary.

SIR JAMES GRAHAM

wished to know how many would have claims for compensation, and what was the estimated amount of that compensation? He still thought that the Attorney General had not noticed the observation he had made, that if they adopted this clause they would place these persons in a new position, giving them a claim on the public purse, and not on the fees received. Now, they derived their incomes from patents taken up voluntarily, and had no collateral claim whatever on the public purse. For the first time it was proposed they should have a claim on the Consolidated Fund, and being the first time, he thought the claim ought to be viewed with jealousy and caution.

MR. CORNEWALL LEWIS

said, the only persons who would be entitled to compensation would be the clerks in the Signet Office, who were paid fees on their own account. It was impossible to state precisely, but the House might reckon with great confidence there would not be a very large amount of compensation.

MR. W. WILLIAMS

thought a more distinct answer ought to be given by the Government to the question of the right hon. Baronet.

SIR JAMES GRAHAM

said, that to show he did not wish to impede the progress of the measure, if the suggestion he had made was worthy of consideration, the clause might he agreed to, the Bill might be reported to-morrow, and the alteration might be included by arrangement on the report. He admitted that the amount of fees, particularly whilst the law was in a state of change, must be uncertain; but he could see no injustice in placing the compensation for fees received at the will of the public upon the fee-fund arising from patents hereafter to be granted. That fund might be kept distinct, and whatever the Treasury might award as compensation to the present officers, might be made receivable from it. He thought that would be a strictly equitable arrangement. The charge on the public purse would be avoid- ed, and compensation would be dependent on the fees henceforth received, just as the income now derived by the persons claiming compensation was dependent on the amount of fees received. It would be quite possible to keep the fee fund distinct, and he wished the House to take till tomorrow to consider the suggestion he had made.

MR. LABOUCHERE

was much obliged to the right hon. Baronet, and his suggestion should be considered on the Report.

MR. VERNON SMITH

wished the Government to state the maximum amount of compensation that could be required.

The ATTORNEY GENERAL

saw some difficulty in making an exception to the general system of bringing all the fees into the Consolidated Fund. It might be provided that compensation should be paid out of the Consolidated Fund, not exceeding the amount of fees payable in respect of patents.

SIR JAMES GRAHAM

would rather not raise a charge on the Consolidated Fund. That was the very thing he wished to provide against. The Attorney General had told the House that many of the officers were paid by salary, or would be made available under the new Commission, in both of which cases they would not be entitled to compensation. He went on to say that the amount of compensation would be small. If then the surplus amount of fees, after paying the expenses of the Commission, would be small, those having claims would not be numerous. He (Sir J. Graham) saw no difficulty in having all the fees received for patents kept in a distinct fund, to he chargeable with all the expenses of the new machinery; and, if there was sufficient, to be available for compensation; if there was not sufficient, then the whole surplus might be applied as far as it would go. That would be an equitable arrangement, and would steer clear of the evil which he foresaw, and was anxious to avoid, of constituting, in the shape of compensation (a claim which, to say the least, was very doubtful), a perpetual charge on the Consolidated Fund.

MR. LABOUCHERE

observed that the hon. Baronet had set out by asking the Government to give time to the consideration of this suggestion. He could assure the hon. Baronet it would he fairly considered. The Attorney General would consult with the Treasury how far it was possible to meet the wishes of the right hon. Baronet.

The ATTORNEY GENERAL

said, the amount of private payments for patents was very small.

SIR JAMES GRAHAM

had quoted from a return made in the year 1849, giving the greatest possible detail on the subject of fees for patents. Unless there had been some change since 1849 in the Signet, the Great Seal Patent, and the Lord Chancellor's Offices, fees were paid to a great number of officers. If his suggestions should be worth the consideration of the Government at all, it would be necessary to revise the 44th clause, which they had already passed, and which provided for the payment of all fees into the Consolidated Fund.

MR. LABOUCHERE

thought the officers would have some equitable claim for compensation, even if there was no surplus from fees after paying the expenses of the new machinery, because there being no surplus would he owing to the fees having been abolished for the benefit of the public.

SIR JAMES GRAHAM

said, that raised the difficulty which he wished to avoid. He did not wish to argue the question of contingent injury consequent upon a diminished amount of fees. It was precisely that view of a contingent equitable claim on the public purse which had given rise to a great variety of compensations of a most unjust and most inexpedient character. This was not the time, however, to argue the question.

Clause agreed to.

Remaining clauses agreed to; Schedule agreed to.

The House resumed. Committee report progress.