PATENTS BILL [Lords] (Hansard, 18 December 1956)

§ The Parliamentary Secretary to the Board of Trade (Mr. F. J. Erroll)
I beg to move, That the Bill be now read a Second time.
This Bill, which has already passed through all its stages in another place, has a limited but, none the less, important purpose in connection with the granting of patents in the United Kingdom. The Bill gives statutory recognition to the fact that it now takes considerably longer than before the war to put an application for a patent in order for acceptance; and it provides for the imposition of a realistic time limit for this operation.
Our patent law requires the inventor, in order to obtain protection for his invention in this country, to prepare and file at the Patent Office what is known as a complete specification. This document must describe the best method known of performing the invention and must end with a claim or claims defining the scope of the monopoly sought. The specification must be considered by an officer of the Patent Office known as an Examiner. His duty is to ensure that the specification complies with the requirements of the Patents Act, 1949. He must satisfy himself that the invention is clearly and fully described and that the claim or claims are clear and succinct and are fairly based on the matter disclosed in the specification.
The examiner must also carry out what is called a "search for novelty," that is to say, an investigation to find out whether the invention as claimed has previously been published in the United Kingdom. Obviously, without such an examination the public would have little chance of knowing whether any patent provided a justified and, hence, valid monopoly. After the examiner has conducted the investigation he must inform the applicant or, more usually, the patent agent, of any objection to the specification. The applicant must then amend the specification to the examiner's satisfaction if he wishes to pursue the application. A specification is very rarely accepted exactly as filed; usually serious defects have to be put right. The examiner, in 1213 his turn, has to consider whether the amendments offered meet his objections and, if not, he must then once again take up the matter with the applicant.
I should like to mention here that an applicant who does not agree with an objection once raised has a right of a hearing before one of the senior staff of the Comptroller of Patents. Under the 1949 Act all this has to be done within a maximum overall time of 15 months. When that Act was before Parliament everyone expected that once normal peacetime conditions were restored it would be possible to work once again to this pro-war time limit of 15 months.
During and immediately after the war considerable arrears of unexamined specifications had accumulated, and it was hoped that these arrears would soon be a thing of the past. In the meantime, the Comptroller could extend the time limits temporarily and thus bridge the gap between the statutory period and the actual time taken to do the work. Powers to do this were given to him by the Patents (Emergency) Act of 1939.
Unfortunately, however, the forecast made in 1949 has proved too optimistic. Until about 1952 the applications for patents remained at little more than the pre-war average. The Patent Office staff contrived to dispose annually of substantially more cases than were received in the Office and, consequently, were able to eat into the large arrear of accumulated applications. In 1953, however, the intake of applications began to rise, and has continued to do so; indeed, it is now nearly 40 per cent. higher than the average pre-war figure, and it is still increasing. While this is healthy from the national point of view, it has made it impossible, so far, to get back to the prewar time limit for the examination of applications.
Hon. Members will be aware of the general shortage of science and engineering graduates. One result of this shortage is that we have not been able to recruit a sufficient number of suitably qualified staff for work in the Patent Office. The shortage of graduates also affects patent agents, who themselves need staff with the same qualifications as those in the Patent Office. Like the Patent Office, they are also in arrears with their work.
1214 The result of all this is that instead of a period of 12 to 15 months, as was expected, nearly three years, on the average, are needed in which to put an application for a patent in order for acceptance. The waiting period can be reduced only by the recruitment of a considerable number of qualified stall. Steps have been taken to improve recruitment to the Patent Office, the most important, probably, being an improved salary scale. Even so, the present conditions of delay must persist for some time yet.
The Comptroller is continuing to grant extensions of the statutory period whenever it is proved impossible to put an application in order within that period. This applies in practically every case. In order to do this he has made use of the powers conferred upon him by the Emergency Act of 1939 to which I have already referred. Hon. Members will agree with me, I am sure, when I say that it is unsatisfactory that a situation which is likely to go on for some time should continue to be met by exercising powers designed primarily for use in wartime conditions.
It is unsatisfactory, too, that the Comptroller should have an unfettered discretion as to time limits which before the war were always rigidly laid down by statute. This Bill, therefore, provides that the Board of Trade shall have power to prescribe by order from time to time the period within which an application for a patent must be put in order for acceptance. This is subject to a minimum limit of one year and a maximum limit of four years.
Before the Bill was drafted, there were consultations with representatives of the Federation of British Industries, the National Union of Manufacturers, the Association of British Chambers of Commerce, the Chartered Institute of Patent Agents and the Trade Marks, Patents and Designs Federation. There was general agreement to the time limits of one and four years, respectively, and it was also agreed that a period of three-and-a-half years was a reasonable one for the Rules to provide initially. Naturally, our objective is to shorten this period as soon as improved recruitment makes this possible. The fact that the period will he laid down in the Rules and not in the Act itself will 1215 make the machinery of amendment considerably easier.
I am, of course, aware that the Chartered Institute of Patent Agents has proposed an Amendment to the Bill, and I have taken the opportunity to study it carefully. Briefly, the Amendment raises two points, both designed to put pressure on applicants and their patent agents to do their part of the necessary work more quickly. The first of these two suggestions is the provision of definite time limits for replying to letters sent out by the Patent Office, the time limits to he specified in the letters sent out.
The second suggestion is that we should no longer permit applicants to request that the Comptroller postpone acceptance of his application until the end of the statutory period. A provision which permits an applicant to make this request has been part of our Patent Law since 1939, and the Departmental Committee—known as the Swan Committee—whose report formed the basis of the 1949 Act, recommended its retention without in fact pronouncing on the merits of the provision. Obviously, we should not lightly change the law on this point without a full inquiry, and I should like to reassure hon. Members who may have been studying the case put out by the Chartered Institute of Patents Agents that I hope to have discussions on both these matters with those concerned in the near future.
I do not think that I need go into details of the Bill itself, which can more appropriately be discussed in Committee. I should like to mention that we have, of course, to provide for pending applications, and this is done in Clause 2 of the Bill. I have dealt at some length with the one main object of the Bill, which is to prescribe a realistic period for the work to be done on patent applications. We are taking all possible steps to reduce the delays which are now occurring. But I think all hon. Members will agree that it is better to accept some delay rather than to lower the standard of the examination of patent applications. Such a course could only result in the weakening of the reputation of British patents throughout the world.

§ Sir Frank Soskice (Newport)
I am sure that the House will be grateful to the 1216 Parliamentary Secretary for his exposition of the content and purpose of this not altogether exhilarating Bill. I do not suppose that he himself supposed that he would provoke violent jubilation when he acquainted us with it. But we on this side of the House recognise that, for the reasons which the hon. Gentleman has given, some extension of the period allowed in Section 12 of the Patents Act, 1949, is necessary.
I should like to put to the Minister one or two questions, though to some extent he has answered them in advance by saying that he is having consultations with the Chartered Institute of Patent Agents, because the questions which I desire to put relate to points which the Institute has raised.
There is one question which I think that the Minister did not altogether answer, and that is whether the Government are right in deciding that they should extend the period of time provided in Section 13 of the Patents Act, 1949, during which an applicant can request that the acceptance of his patent application can be deferred, The Minister referred to that and said that it was with considerable hesitation that the Government had decided to depart from the recommendation in that regard of the Swan Committee. I ask the Government to think once again about that.
It may well be that their decision is right, and I really raise the question simply that it may be given further consideration. It seems to me at any rate with the limited experience of this subject that I have, that the period provided in Section 13 of the 1949 Act as amended by this Bill is perhaps somewhat excessive. As I understand it, the period now provided under Section 13, during which acceptance of a patent can be delayed, is the same period as is allowed under Section 12 for compliance with the requirements of the Comptroller in order to put the patent application and the complete specification in final and proper form.
To those who are as uninitiated as I am in this mysterious topic, it seems possibly open to question whether, when a specification is complete and in proper form and ready for acceptance, it should be possible for the applicant to postpone the acceptance for the considerable period which, if I understand the Bill correctly, 1217 will be allowed It seems to me that postponement of the acceptance of a complete specification which is perfect in form and which requires no further alteration or change for it to be accepted may impose a considerable disadvantage on competitive applications for patents. They are, as I understand it, kept in the dark as to the content of a patent which may be waiting for this considerable time for acceptance, and it seems possibly against the general interest that they should, as it were, be taken by surprise at a considerably later period by discovering that a patent ready and complete for acceptance has been laying in the pending file for so long.
I do not press that point now, but I put it forward as one which requires further consideration. The Minister has dealt with the proposal made by the Chartered Institute of Patent Agents that there should be a limit imposed upon the time allowed for the answering of official reports. I must say that when I heard of it it commended itself to me as a proposal which required very serious consideration. It seems to me that the matter is one which should be fully probed in the further discussions which I understand the Minister proposes to have with the Chartered Institute of Patent Agents. He has given the reasons which prompt him against the view that the proposal should be accepted. I will not say that those proposals are without weight—obviously they have weight—but the matter needs further consideration, and it is in the general interest that, so far as possible, having regard to the available number of examiners, the final completion of patent applications should be speeded up.
Finally, I was glad to hear from the Minister that steps are being taken to recruit the available number of examiners and to increase their strength. I entirely agree with him that the recruiting campaign should be conducted upon lines which will not involve any risk of deterioration in the quality of the available number of examiners.
Those are considerations which occurred to me in examining the content of the Bill. We on this side of the House certainly recognise that some change is unfortunately necessary. I say unfortunately, and I know that the Minister agrees with me; unavoidably 1218 necessary because it has not been possible to keep up with the accumulating work as the number of applications for patents increases over the months.
That, as the Minister said, is a healthy sign, but we should be glad if it were possible to cope with the increasing volume of work without having to extend the time as the Bill does. With those observations, speaking for myself, I accept the Bill as one that is necessary. As I said at the outset, I cannot greet it with wild acclaim. I do not suggest that any hon. Member on either side of the House could feel constrained to do that, and I am sure that the Minister would not ask him to. I certainly hope that the House will give it a Second Reading. As the Minister said, it can he further considered in Committee.

§ Sir Lionel Heald (Chertsey)
It would be a work of supererogation if I were to try to add anything to the speeches to which the House has just listened, but I feel it might he right that I should say a word of appreciation of what my hon. Friend has said he is going to do in the way of giving further consideration to a very technical point which has been raised by the Chartered Institute of Patent Agents, the Federation of British Industries and others, which was the subject of discussion in another place.
I think it right and fair to say that what were discussed in another place were Amendments not quite of the same nature as that now proposed. I am very glad to hear that my hon. Friend is prepared to give further consideration to this new proposal. I am sure that those bodies will be very glad to hear that, and will very much welcome the opportunity of sitting round a table and discussing the matter in perhaps more easy circumstances than those in which we have tried to discuss it this evening.
Some apprehension has been expressed by those concerned with constitutional matters on the ground that the Bill, on the face of it, appeared to be giving to an executive officer or executive department power to decide the question of the date which might possibly have been considered from the point of view of administrative or departmental convenience rather than from that of benefit to the public. I think that my hon. Friend has made clear that the matter will be dealt 1219 with if necessary by rules, and that would give a guarantee that that would not be a material consideration. If my hon. Friend would make that clear it would be advantageous. I know that if it is not possible to settle the matter by consultations, as I am very confident it will be, he will not mind if it has to be dealt with by the putting down of an Amendment which we can discuss in Committee.