PATENT LAW AMENDMENT BILL. (Hansard, 21 October 1902)

§ THE PRESIDENT OF THE BOARD OF TRADE (Mr. GERALD BALFOUR, Leeds, Central)
said he had no objection to the Clause.

§ MR. CAWLEY (Lancashire, Prestwich)
said he desired to move the Amendment standing in his name. The effect of it would be to give the Board of Trade more power than they now possessed. Under the Bill as it stood, the Board of Trade had the power to dismiss a petition 443 or refer it to the Judicial Committee of the Privy Council, but that Committee was a very expensive tribunal, perhaps even more expensive than the High Court, and in the interests of small manufacturers especially, the Board of Trade ought to have power to grant a patent. He moved the Amendment in the interests of the small manufacturers, of whom there were several in his constituency, and he thought unless some Amendment of this nature was added to the Bill, small manufacturers would be left very much in the position they were at present. He moved principally in the interests of the aniline colour trade, and he thought it was necessary that the House should know something about how that trade had been conducted before they came to a decision on the matter. That trade was initiated in this country, the raw material came from this country, and most of the product was consumed in this country, yet nine-tenths of the trade was done on the Continent, principally by Germans. He thought it was a little humiliating to this country that we should allow a trade, of which the raw material was supplied in this country and the product consumed here, to go to Germany. He thought also it was some reflection upon the Board of Trade that they had not seen that English manufacturers were not placed at a disadvantage, as they had been. Out of every hundred pat cuts granted in this country forty were not applied for in Germany, and, if applied for, were not granted. The result was that Germans came to this country, got patents, manufactured the article in Germany, and the British consumer had to pay a very large price for it, because it could not be manufactured here, whereas the consumer in Germany could get it at half the price the consumer had to pay here. He wanted to show that if the Bill remained as it was the small manufacturers in this country would have no chance. Take a man with,£1,000 or £2,000 capital, who wanted to make a colour that was already manufactured in Germany. He wanted the ingredients for that colour, and he went to the Board of Trade. The Board of Trade would say, "Oh, yes, make a primâ facie case out, and we will refer it to the Privy Council." What was the trader's remedy? He had to start a lawsuit before the most expensive tribunal in the country before he could get it. That was prohibitive to any small manufacturer, for the whole of his 444 capital might be swallowed up in law costs. Therefore, it would be well if the Board of Trade had power not merely to dismiss a patent, but to grant one. At present they had only power to dismiss and power to refer to the Privy Council. He wanted to see the Board of Trade take the small British manufacturer under their care, as against the foreigner who had been abusing our country for years and years, and if the Board would take our commerce under their care, we should not have so much to complain of as regarded foreign competition as we had had in the past.

§ MR. BRIGG
said he wished to support the Amendment, the object of which was to simplify and cheapen, as far as possible, the means of obtaining a patent. Many small inventors were now prevented from obtaining a patent because of the expense. At present the Board of Trade had the power to dismiss a petition, but they should also be given power to grant a petition, with the right of appeal to the Judicial Committee of the Privy Council. He did not know how far the Board of Trade would feel justified in taking on itself the duty it was now asked to take, but anything that could be done to help a small inventor ought to be done. The 445 Amendment deserved the consideration of the Board of Trade and of the House in order that the industry of the country might be helped as far as possible.

§ MR. GERALD BALFOUR
said the particular modification desired by the hon. Member for Prestwich was very fully discussed in the Committee upstairs and rejected, as he thought, for excellent reasons. What the Bill proposed was that applications should, in the first instance, be made to the Board of Trade, who could then act the part of conciliator between the patentee and those who were seeking for a licence. If the parties were unable to come to an agreement with the assistance of the Board of Trade, the Board of Trade might, if in its opinion there was a prima facie case, refer the petition to the Privy Council, and the Privy Council decided at once and for all. Until the petition was referred to the Privy Council no expense of any kind was involved upon either of the parties, but he imagined that, in the case of the small manufacturers of whom the hon. Member spoke, it would be possible for the Board of Trade to bring the parties together, in the majority of instances at all events. But if it were not possible to bring them together, it was open to the patentee to appeal to the Privy Council against the decision of the Board of Trade if it were in favour of the applicant; and if that were done it was obvious that the small manufacturer would gain nothing, because he would necessarily have to appear before the very tribunal the expense of which was made the reason for recommending the hon. Member's scheme.

§ MR. CAWLEY
said that his idea was to throw the onus on the patentee, instead of on the applicant. If the onus were thrown on the foreign patentee, it would be a very different case altogether.

§ MR. GERALD BALFOUR
said that the hon. Member was mixing up two things. Under the Bill as it left the Committee, if the patented article were manufactured abroad, the onus would 446 lie on the patentee of proving that the reasonable requirements of the public in respect of the invention had been satisfied. The Bill did throw that onus on the patentee, but the effect of the hon. Members scheme, if it were carried, would be this—the Board of Trade would not accept the task of deciding upon matters in which very great pecuniary interests were constantly involved without referring them to a tribunal constituted ad hoc. There would be an arbitrator whose expenses would have to be paid, and there would be the expenses of counsel, and the result would be that, where a case was carried from the decision of the Board of Trade to the Privy Council, so far from the expenses being diminished, they would be doubled. In the first place there would be the expense of the arbitrator appointed by the Board of Trade, and in the second place there would be the expense of a trial before the Judicial Committee of the Privy Council. The object of the Amendments which the Government introduced into the Bill in Committee was to diminish the expenses as far as possible, and with that view they had arranged that there should be only one trial of these matters before a court, and that from that court there should be no appeal, and it was obvious that if there was to be no appeal the court should be a strong and a satisfactory court. He believed they could not get a better court for the purpose than the Privy Council, and it was for that reason the Government substituted the Privy Council for the High Court. His own belief was that under the procedure which the Bill now contemplated, namely, a petition in the first instance to the Board of Trade and an attempt to bring the parties together, and, if that attempt failed, leaving it open to appeal to the Privy Council, they would get at once the cheapest and most satisfactory procedure available.

§ MR. CALDWELL
said that a great deal had been said in favour of the Amendment. He was afraid that the President of the Board of Trade thought that the Board of Trade was not a very suitable tribunal for trying matters of the kind mentioned in the first instance.

§ MR. GERALD BALFOUR
said that the hon. Member was entirely mistaken. He might remind him that the Committee on whose Report the Bill was founded expressly recommended that the Board of Trade should not be entrusted any longer with the decision of these important cases.

§ MR. CALDWELL
said the point was simply to determine whether any invention was being worked in such a way as to comply with the requirements of the Act. That was really a matter for the Board of Trade, with their experts and means of examination. The proposal of the Amendment was that when a primâ facie case was made out the Board of Trade should take upon itself the responsibility of giving a decision on the matter. It was no use the Board trying to bring the parties together unless they had the power, in the event of the parties not coming to an agreement, to give a decision subject to appeal. If that power were given the probability was that the parties would come to an agreement.

§ MR. G. W. BALFOUR
accepted the Amendment.