HC Deb 25 July 1988 vol 138 cc225-6

10A.—(1) In the Patents Act 1977, after section 57 insert—

"compensation for loss of profit

57A.—(1) Where use is made of an invention for the services of the Crown, the government department concerned shall pay—

  1. (a) to the proprietor of the patent, or
  2. (b) if there is an exclusive licence in force in respect of the patent, to the exclusive licensee,
compensation for any loss resulting from his not being awarded a contract to supply the patented product or, as the case may be, to perform the patented process or supply a thing made by means of the patented process.

(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing or other capacity; but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing or other capacity was under-used.

(4) No compensation is payable in respect of any failure to secure contracts to supply the patented product or, as the case may be, to perform the patented process or supply a thing made by means of the patented process, otherwise than for the services of the Crown.

(5) The amount payable shall, if not agreed between the proprietor or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under section 58, and is in addition to any amount payable under section 55 or 57.

(6) In this section 'the government department concerned', in relation to any use of an invention for the services of the Crown, means the government department by whom or on whose authority the use was made.

(7) In the application of this section to Northern Ireland, the reference in subsection (5) above to the Treasury shall, where the government department concerned is a department of the Government of Northern Ireland, be construed as a reference to the Department of Finance and Personnel.".

(2) In section 58 of the Patents Act 1977 (reference of disputes as to Crown use), for subsection (1) substitute— (1) Any dispute as to—

  1. (a) the exercise by a government department, or a person authorised by a government department, of the powers conferred by section 55 above,
  2. (b) terms for the use of an invention for the services of the Crown under that section,
  3. (c) the right of any person to receive any part of a payment made in pursuance of subsection (4) of that section, or
  4. (d) the right of any person to receive a payment under section 57A,

may be referred to the court by either party to the dispute after a patent has been granted for the invention."; and in subsection (4) for "under this section" substitute "under subsection (l)(a), (b) or (c) above".

(3) In section 58(11) of the Patents Act 1977 (exclusion of right to compensation for Crown use if relevant transaction, instrument or event not registered), after "section 57(3) above)" insert ", or to any compensation under section 57A above,".

(4) The above amendments apply in relation to any use of an invention for the services of the Crown after the commencement of this section, even if the terms for such use were settled before commencement.'.

No. 297, in page 196, line 37, at end insert—

'Compulsory licensing: reliance on statements

in competition report

10A. In section 53(2) of the Patents Act 1977 (compulsory licensing: reliance on statements in reports of Monopolies and Mergers Commission)—

  1. (a)for "application made in relation to a patent under sections 48 to 51 above" substitute "application made under section 48 above in respect of a patent"; and
  2. (b)after "Part VII of the Fair Trading Act 1973" insert "or section 17 of the Competition Act 1980".'.

No. 213, in page 199, leave out lines 32 to 34 and insert— '(2) If the application, or the designation of the United Kingdom in it, is withdrawn or (except as mentioned in subsection (3)) deemed to be withdrawn under the Treaty, it shall be treated as withdrawn under this Act.'.

No. 214, in page 199, line 35, leave out 'cease to be treated as an application' and insert 'be treated as withdrawn'.

No. 215, in page 199, leave out lines 45 to 49.

No. 216, in page 200, line 12, at end insert 'having such date of filing as he may direct'.

No. 217, in page 200, line 21, leave out from 'begins' to end of line 27 and insert —

  1. (a) when the prescribed period expires, provided any necessary translation of the application into English has been filed at the Patent Office and the prescribed fee has been paid by the applicant; or
  2. (b) on the applicant expressly requesting the comptroller to proceed earlier with the national phase of the application, filing at the Patent Office—
  1. (i) a copy of the application, if none has yet been sent to the Patent Office in accordance with the Treaty, and
  2. (ii) any necessary translation of the application into English,
and paying the prescribed fee.'.

No. 218, in page 200, line 36, leave out from 'if to 'otherwise' in line 38 and insert

`—

  1. (a) when the prescribed period expires, any necessary translation of the amendment into English has been filed at the Patent Office, or
  2. (b) where the applicant expressly requests the comptroller to proceed earlier with the national phase of the application, there is then filed at the Patent Office—
    1. (i) a copy of the amendment, if none has yet been sent to the Patent Office in accordance with the Treaty, and
    2. (ii) any necessary translation of the amendment into English;'.

No. 219, in page 200, line 51, leave out from 'where' to second 'the' in line 52 and insert 'in accordance with the Treaty any extra days are allowed'

No. 220, in page 201, line 4, after 'application', insert— ', not having been published under this Act,'.

No. 221, in page 201, line 11, after 'application', insert— ', not having been published under this Act,'.

No. 222, in page 201, line 27, leave out 'an' and insert 'the'.—[Mr. Garel-Jones.]

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