HC Deb 25 July 1988 vol 138 cc221-3

Amendments made: No. 144, in page 164, line 14, at end insert— '8A. Restoration of lapsed right in design. 8B. Effect of order for restoration of right.'.

No. 145, in page 165, line 42, leave out from 'not' to 'and' in line 43 and insert 'normally taken into account to a material extent by persons acquiring or using articles of that description'.

No. 146, in page 166, line 43, leave out from 'fit' to end of line 51 and insert— '(3A) The registrar may, in such cases as may be prescribed, direct that for the purpose of deciding whether a design is new an application shall be treated as made on a date earlier or later than that on which it was in fact made.'.

No. 147, in page 170, line 38, at end insert— '(6) The right in a registered design is not infringed by the reproduction of a feature of the design which, by virtue of section l(l)(b), is left out of account in determining whether the design is registrable.'.

No. 148, in page 170, line 41, leave out from 'design' to 'if in line 1 on page 171 and insert— '(2) The period for which the right subsists may be extended for a second, third, fourth and fifth period of five years, by applying to the registrar for an extension and paying the prescribed renewal fee. (3) If the first, second, third or fourth period expires without such application and payment being made, the right shall cease to have effect; and the registrar shall, in accordance with rules made by the Secretary of State, notify the proprietor of that fact.

(3A)'.

No. 149, in page 171, line 27, at end insert—

'Restoration of lapsed right in design

8A.—(1) Where the right in a registered design has expired by reason of a failure to extend, in accordance with section 8(2) or (3A), the period for which the right subsists, an application for the restoration of the right in the design may be made to the registrar within the prescribed period.

(2) The application may be made by the person who was the registered proprietor of the design or by any other person who would have been entitled to the right in the design if it had not expired; and where the design was held by two or more persons jointly, the application may, with the leave of the registrar, be made by one or more of them without joining the others.

(3) Notice of the application shall be published by the registrar in the prescribed manner.

(4) If the registrar is satisfied that the proprietor took reasonable care to see that the period for which the right subsisted was extended in accordance with section 8(2) or (3A), he shall, on payment of any unpaid renewal fee and any prescribed additional fee, order the restoration of the right in the design.

(5) The order may be made subject to such conditions as the registrar thinks fit, and if the proprietor of the design does not comply with any condition the registrar may revoke the order and give such consequential directions as he thinks fit.

(6) Rules altering the period prescribed for the purposes of subsection (1) may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient.

Effect of order for restoration of right

8B.—(1) The effect of an order under section 8A for the restoration of the right in a registered design is as follows.

(2) Anything done under or in relation to the right during the period between expiry and restoration shall be treated as valid.

(3) Anything done during that period which would have constituted an infringement if the right had not expired shall be treated as an infringement—

  1. (a)if done at a time when it was possible for an application for extension to be made under section 8(3A); or
  2. (b)if it was a continuation or repetition of an earlier infringing act.

(4) If after it was no longer possible for such an application for extension to be made, and before publication of notice of the application for restoration, a person—

  1. (a)began in good faith to do an act which would have constituted an infringement of the right in the design if it had not expired, or
  2. (b)made in good faith effective and serious preparations to do such an act,
he has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the restoration of the right in the design; but this does not extend to granting a licence to another person to do this act.

(5) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (4) may—

  1. (a)authorise the doing of that act by any partners of his for the time being in that business, and
  2. (b)assign that right, or transmit it on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or the preparations were made.

(6) Where an article is disposed of to another in exercise of the rights conferred by subsection (4) or subsection (5), that other and any person claiming through him may deal with the article in the same way as if it had been disposed of by the registered proprietor of the design.

(7) The above provisions apply to the use of a registered design for the services of the Crown as they apply in relation of the infringement right in the design.'.

No. 150, in page 174, line 49, leave out '(3)' and insert (3A)'

No. 209, in page 181, line 48, leave out from 'of to end of line 50 and insert—

  1. (a)one or more judges of the High Court nominated by the Lord Chancellor, and
  2. (b)one judge of the Court of Session nominated by the Lord President of that Court.'.

No. 210, in page 182, line 18, after 'costs', insert 'or expenses'.

No. 211, in page 182, line 20 leave out from 'be' to end of line 21 and insert 'enforced—

  1. (a)in England and Wales or Northern Ireland, in the same way as an order of the High Court;
  2. (b)in Scotland, in the same way as a decree for expenses granted by the Court of Session.'.

No. 212, page 182, line 43, at end insert 'or the Court Session'.

No. 246, in page 187, line 43, leave out from 'a' to end of line 44 and insert 'a Northern Ireland department, and in relation to a Northern Ireland department references to the Treasury shall be construed as references to the Department of Finance and Personnel'.

No. 247, in page 191, line 50, at end insert—

'COMPENSATION FOR LOSS OF PROFIT

2A.—(1) Where Crown use is made of a registered design, the government department concerned shall pay—

  1. (a)to the registered proprietor, or
  2. (b)if there is an exclusive licence in force in respect of the design, to the exclusive licensee
compensation for any loss resulting from his not being awarded a contract to supply the articles to which the design is applied.

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

(3) In determing 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 capacity was under-used.

(4) No compensation is payable in respect of any failure to secure contracts for the supply of articles to which the design is applied otherwise than for the services of the Crown.

(5) The amount payable under this paragraph shall, if not agreed between the registered proprietor or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under paragraph 3; and it is in addition to any amount payable under paragraph 1 or 2 of this schedule.

(6) In this paragraph— "Crown use", in relation to a design, means the doing of anything by virtue of paragraph 1 which would other-wise be an infringement of the right in the design; and

"the government department concerned", in relation to such use, means the government department who or on whose authority the act was done."

No. 248, in page 191, line 52 [Schedule 4], leave out from 'to to 'may' in line 2 on page 192 and insert—

  1. '(a) the exercise by a Government department, or a person authorised by a Government department, of the powers conferred by paragraph I of this Schedule,
  2. (b) terms for the use of a design for the services of the Crown under that paragraph.
  3. (c) the right of any person to receive any part of a payment made under paragraph 1(3), or
  4. (d) the right of any person to receive a payment under paragraph 2A,'—[Mr. Garel-Jones.]

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