§ Order read for resuming adjourned debate on Question [23rd July], That the Bill be now read a Second time.
§ Question again proposed.
§ 12.54 a.m.
§ Mr. Peter Emery (Reading)
It will be in the memory of the House that I had just risen to my feet last week, during a very brief debate which had lasted perhaps 25 minutes, on the Second Reading of the Bill. I am sorry that the House needs to be detained longer, so I will try to be as brief as possible at this hour.
It must be said that it is a strange position when the Government are so insistent in trying to rush this Bill through this Session, although there are apparently quite a number of other highly important Measures which they are concerned about. In so doing, they have neglected to consult, as I said in my earlier remarks, any of the bodies specifically concerned with the matter of patents, and particularly trade marks designs, or inventions generally.
The Minister of State, Board of Trade, said that this was a small Bill. It is in length, but it is quite considerable in some of its implications; and because some of its implications are not quite as simple as is generally considered, I want, if I may to pose a few questions to the Minister before we leave the Second Reading.
In his speech the Minister referred, particularly in the matter of apportionments, to the particular phrase "as may be just". We all understand this, but in leaving this to the courts there are a number of worries and considerations because completely new principles are involved. Some people think that there should be some criteria in the Bill by which an exact judgment could be made 423 before the case goes to the court. I believe that the Minister of State is aware of this. I wonder whether it would be possible for the Government to do something along these lines when we get to Committee.
I turn now to the element of retrospection on the Bill. It was said quite definitely in another place that the Bill was not retrospective. I accept that. The Bill sweeps away the action open to an inventor—either an employer or an employee—under Section 56(2) of the 1949 Patents Act. I do not criticise that at the moment. But what is the position of an inventor—an employer or employee—who has not taken action at the moment open to him under that Section on an invention which is already established and to which he would have had rights prior to the passing of the Bill? That action would be open to him normally under the 1949 Act. If the Bill is not to be retrospective, it means that any invention which has been used in the past would not be affected by the operation of this part of the Bill, that is, that it is not retrospective.
However, what right then has the inventor or the employer to take action on his past inventions? As Section 56(2) is swept away, he is to have no powers at all, unless they be powers under the Bill, and, in those circumstances, the Bill must be retrospective. Because of the assurances in another place, it is extremely important that the Minister of State should clear up this matter. I cannot believe that it is the intention of the Government that an inventor should take action under an Act which they have swept away. That would be a nonsense.
Is the Bill wide enough to cover joint inventions? I realise that it is wide enough to cover two people or a team of people employed by one employer who are working on the same project, but I should like confirmation of that interpretation—
§ The Minister of State, Board of Trade (Mr. George Darling)
§ Mr. Emery
I am glad that the Minister of State nods.
Is it not sense, if we are going as far as we are going in the Bill, that the particular power should be open to an employee 424 and to another person who is not an employee? This happens in the medium sized or smaller businesses, and, in the same way, in the very small businesses, an employee may be working with his employer on an invention. What situation does the Bill cover in that case? It may be that neither of these cases is covered by the Bill, and it might be reasonable and proper if these points were covered by the Government themselves in Committee.
I come to a technical point. There is some concern about the exception by Clause 1(2) from the operation of Clause 1. It reads:This section shall not affect the operation of any agreement between them expressly providing for the allocation of that benefit".It is suggested—it seems to me with some force—that these words would not break a service agreement or contract of employment because such a document signed at the commencement of employment—and this is a normal procedure—could at best refer to possible future inventions, but it is most unlikely that it would be expressly allocating the benefit referred to in the Clause, which is the benefit in a specific invention made by the employee. I should like to know what is the exact intention of the Bill.
If service agreements entered into are anticipatory of future inventions, are they not excluded by the operation of Clause 1(1)? If that is so, it puts industry in a strange position whereby it is perhaps possible that a new contract would have to be entered into for every specific invention which any team of persons working in research might be about to make. When one sets a team of people working on new projects they often stumble across a number of ideas, techniques and inventions which were not specifically considered in the immediate project. It seems nonsense to have lawyers rushing around to sign up all the employees on a new contract the moment the employees stumble on something new. That is carrying my example to a slightly absurd level, but I am trying to show the problems which might face certain industrialists, especially those working with many people on new designs and inventions.
May I turn to the aspect of timing of the Bill? As with previous legislation, 425 there is no statutory limitation to action which might or might not be taken by an employee or an employer. They will be able to take action at any time in the future about any invention in which they may have been involved. I should have thought it particularly important to have a time aspect or statute of limitations, for we are opening up a provision whereby an apportionment of value to an employer or an employee may be decided years after an invention. That would mean that a firm would have to keep exact books of record of every invention which may have occurred where there is no specific settlement so that if the matter comes to court they are able to provide some financial and factual evidence of what apportionment might reasonably be made by any decision of the courts.
Industry should have the right to know that this application of the Bill will last for only a specific time. My hon. Friends and I have not set a time limitation. Whether it should be seven or 12 years should be open for discussion between the Board of Trade and the experts, such as the Chartered Institute and other bodies. There is every reason for saying that a statutory limitation of this kind should be considered and I am informed that this could be done.
My hon. Friend the Member for Plymouth, Devonport (Dame Joan Vickers) apologises to the Minister for not being here tonight. She was in her place for the first part of the Second Reading last week, but tonight she has had to go to her constituency. She has asked me to raise two points with the Minister concerning references in another place to the Central Awards Committee about civil servants and dock workers, a subject in which my hon. Friend has a constituency interest.
My hon. Friend's first question is: are dock workers and civil servants covered by the Bill, or will they receive no greater benefit than that which they get at present? In other words, do the present contracts under which they serve stop them from benefiting from the provisions which apply to ordinary employees? [Interruption.] I realise that some hon. Gentlemen opposite are not worried about the Bill. I assure them that some of us are extremely concerned about it. I am being as brief as I can and I am sorry 426 if some of them find my remarks tedious. My hon. Friend the Member for Devonport has some fears about the Bill. For people working in the docks, trying to do their best, just because they are employed by the State they should still have the same benefits as anybody else.
My hon. Friend's second question is: will the Minister look into the working of the Central Awards Committee to see whether this cannot be hurried up, because there is no doubt that it is very slow and that there is a certain amount of bad feeling, particularly on the part of those who are working in these services, who feel that they are not being given the consideration which private industry would give to its employees?
An assurance was given in another place that there would be at least two Amendments tabled to the Bill. When we reach the Committee stage my hon. Friends and I will table some Amendments to follow some of the points which I have raised. However, since the hour is late and while there is a great deal more that I could say, I will curtail my remarks at this stage because many of the other points are more appropriate for the Committee stage. I will only add now that the Government must realise that because of the lack of consultation about the Bill my hon. Friends must attempt to get the Measure right in view of the many years we have been waiting for this legislation to come forward.
Perhaps it can be reasonably said that my hon. and right hon. Friends are partly to blame for the Measure not having been brought forward earlier. However, we have been waiting for the Bill since 1949, which is a considerable time. In view of the time we have been waiting for it, I cannot believe that there is such urgency now that it must be rushed through, perhaps at an hour as late as this. We must consider the matter further and, in so doing, it might be useful to fall in line with a number of international interpretations which are now being dealt with in connection with the problems of inventions and patents.
I am sure that I am only reminding the Minister that a congress is being held in Tokyo of the International Association for the Protection of Industrial Property, and we might well have been able to tie up with that as well as with the Strasbourg Convention. There are certain 427 aspects of that Convention that are not being taken into the Bill. While we on this side want, in general, to improve this Bill, and are obviously delighted to support it, I would like the Minister to answer the few questions I have posed.
§ 1.10 a.m.
§ The Minister of State, Board of Trade (Mr. George Darling)
With the leave of the House, I should like to answer the points raised. As I said on an earlier occasion, this is a very limited Bill. The wider amendments to the patent law of which the hon. Member for Reading (Mr. Peter Emery) has spoken belong to another occasion. Quite clearly, from the aspect of international conventions in particular, our present patent law is very rapidly getting out of date. But we are not rushing this Bill through. As the hon. Gentleman says, this matter has concerned some lawyers, at any rate, for about 10 years. We have merely seized the opportunity to get the law right after the House of Lords decision to which reference has been made.
As to consultation, because of the limited character of the Measure we went back to the Swan Committee, which recommended what we have since thought was the law. That Committee consulted practically everyone—the list of organisations which made representations to it and were consulted is very long. Trade unions, employers, patent lawyers—everyone who had an interest gave evidence. We went back to that evidence, and because of the narrow character of what we were trying to do we did not feel it necessary to ask those people to make the same representations again.
If the hon. Member thinks that we have not had proper consultation, we can look into that aspect again; but I can assure him that we went over all the representations that had been made. We were merely trying to get the law as we thought it was before the House of Lords decision in the Patchett case—
§ Mr. Darling
We were trying to put the law in line with what we thought it 428 to be 10 years ago. Therefore, the point of consultation is covered.
The hon. Gentleman asked about the criteria put in the Bill to guide the courts and the Comptroller of Patents. These criteria are spelled out, in response to representations in the other place, in subsection (3) of Clause 1. That subsection, which lays down the criteria, is in general accepted to be the right kind of guidance for the courts.
The hon. Member also spoke of joint inventions. The Bill deals with inventions made by co-employees, as is implicit in subsection (3), but to deal with problems of inventions made by an employee and some third person would, we think, lead to far too many complications. Such cases would be dealt with under the ordinary common law. But we can look at this point again. The criteria are not exhaustive. We have the usual words to say that the court will pay regard to other relevant circumstances, which covers practically everything.
Retrospection is a very difficult legal point, as the hon. Gentleman will appreciate. The Bill is not retrospective in the sense in which he put it, because it is recognised that there will be many firms which are exploiting inventions made before the Bill will come into force, and the employers have taken into account in their costings all the foreseeable financial claims that may come along. We can discuss the question of retrospection again.
With regard to service contracts, what we should like would be that in the long run all employees should be covered by a desirable and workable form of contract, rather than that they should get involved in legal proceedings as to what their proper share of an invention or the fruits of an invention may be. The Swan Committee accepted the view that contracts for Civil Service employees were on the whole satisfactory, especially concerning the machinery of the Central Awards Committee. I appreciate the point the hon. Member raised about the time taken before the awards come out. We shall certainly look into that matter. So far as I know, apart from the time factor there are no complaints about machinery for dealing with awards to Civil Service employees.
429 That, I think, covers the point raised by the hon. Member on behalf of the hon. Member for Plymouth, Devonport (Dame Joan Vickers) about dockyard employees. They are covered. The hon. Member's fears about the way in which service contracts operate in the matter of inventions are unfounded. The type of standard contract which now applies in the nationalised industries has been built up on the basis of the Civil Service form of contract and works well. There is no need to make a separate contract. Every invention in that regard is covered by the same contract. If necessary we can look at this to see if it is satisfactory.
The Bill does not specify any time limit, but it applies to two parties. As the hon. Member will see, in Clause 1(4) there is a trust relationship. The ordinary rules applicable to trustees and beneficiaries will apply. Those rules have been developed on sound lines over many years. We see no reason to depart from them to deal with the special case of employees' inventions. If we discuss the matter at great length as I imagine he wishes to do in Committee, I think the hon. Member will find that this arrangement is satisfactory. I have questioned the legal advisers on this point and I am satisfied that the trust relationship will work satisfactorily in the case the hon. Member mentioned.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Motion made, and question proposed, That the Bill be committed to a Committee of the whole House.—[Mr. McCann.]
§ 1.18 a.m.
§ Mr. Peter Emery
There are quite a number of technical points which I have to put to the Minister of State. We on this side of the House are not trying to be difficult, but we feel that it is an impertinence on the part of the Government to suggest that we should deal with these highly technical matters on the Floor of the House at this hour of the night. I should have hoped that we would not have the Committee stage on the Floor of the House, but upstairs, so as to avoid having in the House technical debates which are bound to arise. I do not know whether this matter can be discussed through the usual channels.
430 I will not oppose this Motion the Government feel strongly about it, but the technical aspects and legal problems comprise the sort of thing that make it an imposition to ask that the House should deal with it in Committee of the whole House rather than by way of a Standing Committee.
§ Question put and agreed to.
§ Bill committed to a Committee of the whole House.—[Mr. McCann.]
§ Committee this day.