HL Deb 17 November 1902 vol 114 cc1099-103

Order of the day for the Second Reading read.

LORD WOLVERTON

My Lords, in asking your Lordships to grant a Second Reading to this Bill, I propose, for the sake of lucidity, to divide the few remarks I have to make under two heads—firstly, the necessity for any change in the existing law; and, secondly, the proposals for the changes which are contained in the Bill. With regard to the necessity of some amendment of the Patent Acts, the President of the Board of Trade has long been aware that stringent criticisms have been passed in the country on the existing law, more especially on two grounds—first, that very often a patent granted by the Patent Office is practically valueless, because the Patent Office at the present time has no charge put upon it to inquire into the question of whether the invention that is presented to it has already been patented in that office; and second, that patents have very frequently been taken out by foreigners and others who had no intention whatever of working them in this country, or of granting licences to British manufacturers to use them in this country, and who, in fact, play a dog-in-the-manger policy. The President of the Board of Trade, having these two things in his mind, determined, as is the usual practice, to appoint a Committee to inquire into the whole of the Acts in question. He selected a very strong Committee, over which Sir Edward Fry presided. Among other eminent experts who sat on the Committee was the present Lord Chief Justice of England; and the Bill which is in your Lordships' hands is mainly founded on the Report of that strong Committee.

With regard to the changes proposed to be made in the existing law, put very briefly, they are as follow. There is to be a limited official inquiry into the anticipation of an invention in so far as that anticipation is disclosed by the records of the Patent Office during the period of fifty years preceding the application for the patent; and there is to be a transfer to the Judicial Committee of the powers of the Board of Trade in respect to the granting of compulsory licences. The limited official inquiry will be a great reform in the present patent laws, and will, we hope, give the patentee some security that he has obtained a good patent. I am assured by the Patent Office that, although they anticipate a very large increase in the business of the Department, they will still be self-supporting. I have, I think, said all that needs to be said on Clauses 1 and 2, and I now pass to Clause 3. The President of the Board of Trade has been very much impressed by the representations of very large bodies that have been made to him on the subject of this Bill, and the right hon. Gentleman has been convinced that patents are often taken out by foreigners in this country for obstructing British trade and the development of particular industries, such as the aniline industries in the North. The remedy he proposes is to be found in sub-Section (3) of Clause 3, which, with your Lordships' permission, I will read. It is as follows — Where any such petition is referred by the Board of Trade to the Judicial Committee, and it is proved to the satisfaction of the Judicial Committee that the reasonable requirements of the public with reference to the patented invention have not been satisfied, the Judicial Committee may order the patentee to grant licences on such terms as they may think just, or if the Judicial Committee are of opinion that the reasonable requirements of the public will not be satisfied by the grant of licences, they may, by order, revoke the patent. The rest of this Clause has, I believe, been generally approved of by the trading community of the country, and the Clause as a whole will no doubt enable British traders to obtain fair terms from foreign patentees. There is only one other subject of importance in the Bill—namely, the tribunal to which these cases will be referred. I am aware that Sir Edward Fry favoured the High Court as the final Court of Appeal, but in this Bill the President of the Board of Trade has, after due consideration, appointed the Judicial Committee of the Privy Council. In the presence of the noble and learned Lord on the Woolsack, it would be presumptuous for me to express any opinion upon this. The Bill, which passed through all its stages easily in the other House, has the approval of the trading community and the Board of Trade feel sure that it will effect a great amendment of the existing law. I beg to move that the Bill be read a second time.

Moved. "That the Bill be now read 2a."—(Lord Wolverton.)

LORD DAVEY

My Lords, I have only two observations to make on this Bill. In the first place, I wish to point out that it is a complete novelty—I might say a revolution—in the patent law that the question of whether a proposed patent has been anticipated by some earlier specification should be decided by an administrative officer, and not by a judge, with an appeal only to the law officer. It is proposed that the administrative officer—the examiner—shall— make investigation for the purpose of ascertaining whether the invention claimed has been wholly or in part claimed or described in any previous specification, and if he reports to the Comptroller that that is so, the Comptroller may absolutely require the patentee either to amend his patent or to insert a reference to the prior specifications, and the only appeal from the decision of the Comptroller to the law officer. If, therefore, the Comptroller is of opinion that the proposed patent is anticipated by a prior specification, there will be no means, so far as I can see, of bringing that question—and it is a very important question to the patentee—for decision to the ordinary courts of this country. The other observation I wish to make refers only to a matter of drafting. I observe that in sub Section 3 of Clause 3, which was read by the noble Lord who moved time Second Reading of the Bill, there is a phrase declaring that "the Judicial Committee may order" a patentee to grant licences on such terms as it may think just, and the Judicial Committee is empowered to make other Orders. Your Lordships are aware that the Judicial Committee is only a Committee of the Privy Council. It does not make Orders itself; what it does is to recommend that certain Orders be made by the King in Council. Though it is not a matter of very great substance or importance, I think it would be better that the ordinary procedure, which is for the Committee to "recommend," should be retained. I should be glad to know whether the noble and learned Lord on the Woolsack is of the same opinion. I am also informed that the Clause empowering the Judicial Committees to make Rules will require some slight amendment, but as that is purely a drafting matter I will not trouble the House with it.

THE LORD CHANCELLOR (the Earl of HALSBURY)

My Lords, with reference to the matter of substance raised by the noble and learned Lord, I think the question has been very fully considered, and I do not propose to go into it. With regard to the point of drafting, I quite agree with my noble and learned friend. I think it has been by an error on the part of the draftsman that the phrase declaring that the Judicial Committee may "order" was used instead of the word "recommend." As the noble and learned Lord has said, the Privy Council makes submission to His Majesty, and then an Order is made in pursuance of His Majesty's command. Therefore I think that when the Bill reaches the Committee stage it should be amended in the sense the noble and learned Lord suggests.

On Question, agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.