PATENTS AND DESIGNS BILL. [H.L.] (Hansard, 26 April 1932)

§ LORD TEMPLEMORE

My Lords, the object of this Bill to which I ask your Lordships to give a Second Reading tonight is to give legislative effect to the recommendations of the Departmental Committee appointed by the President of the Board of Trade in May, 1929—that is, in the Government of my right hon. friend Mr. Baldwin, just before they left office—to consider and report whether any, and if so what, amendments in the Patents and Designs Acts or changes in the practice of the Patent Office, were desirable. The last occasion on which the patent law was extensively revised was in the year 1919, when the Patents and Designs Act of that year was passed to amend the Patents and Designs Act, 1907, which is the principal statutory provision dealing with patents and designs. The working of the Act of 1919 had shown that a number of amendments in the law were necessary, and representations had been made to the Board of Trade from time to time by various interested bodies that such amendment should be undertaken.

The British Science Guild had themselves appointed a committee to consider the existing patent law and the report had been submitted to the Board of Trade with representations that changes in the law should be made. Accordingly, the then President of the Board of Trade, Sir Philip Cunliffe-Lister, in May, 1929, appointed the Departmental Committee I have mentioned under the chairmanship of the right hon. Sir Charles Sargant, a former Lord Justice of Appeal. Sir Charles Sargant when a 197 Judge of the High Court was for several years the special Judge nominated by the Lord Chancellor to hear appeals to the Court in patent cases and possesses, of course, a wide and intimate knowledge of patent law. He was assisted by an expert Committee eminently suited to deal with the technical matters involved in its terms of reference.

The Committee sat on forty-three occasions and heard evidence from representatives of industries and science as well as from patent agents and lawyers conversant with patent law, and also from the Patent Office itself. Its recommendations were unanimous. They are contained in the Report dated March 14, 1931, which was presented to Parliament and issued as Command Paper No. 3829 in March, 1931, just over a year ago. The Report was considered by His Majesty's Government, then the Labour Government under Mr. MacDonald, and, as was to be expected having regard to the constitution and unanimity of the Committee, its recommendations were substantially accepted. The present Bill is designed to make the necessary changes in the law in order to give effect to those recommendations.

The Bill of necessity consists of detailed amendments in the existing law and, admittedly, is not very easy to follow. The more important recommendations have been dealt with in the body of the Bill, whilst a large number of minor recommendations dealing with technical details in the administration of the law of patents and designs are included in the Schedule. In order to assist the House in following the changes which are to be made a White Paper has been prepared and will be available to members, I fancy from to-morrow, showing what those changes are. In this White Paper the provisions of the existing law which are to be deleted are shown in italics. The provisions of the existing law which remain unaltered are shown in ordinary type; while the additions to the existing law are shown in heavy type. In addition to this the numbers shown in square brackets in the margin of the Bill indicate the recommendation in the Report to which the particular provision in the Bill relates. This is the arrangement already prescribed for in the printing of the existing Patents and Designs Acts, 198 and by Clause 14 of the present Bill it is proposed to continue the practice in the reprinting of the principal Act as amended by the present measure when duly enacted. This provision will enable those affected by the measure, and practitioners in patents and designs to see what changes have been made without reference to a series of complicated amending Acts. I do not think it would assist your Lordships at this stage if I were to go into its provisions in detail, but I would call attention to a few of the more important recommendations and the statutory provisions designed to give effect to them.

Turning first to Clause 2 of the Bill, it will be appreciated that an application for a patent may be refused by the Patent Office upon the ground that the invention has been previously described in British patent specifications covered by applications lodged at the Patent Office within the previous fifty years. Section 7 of the existing Statute places an obligation upon the Patent Office examiner to search through these British specifications in order to ascertain whether there has been any such anticipation. The attention of the Committee which sat to consider the matter was called to the fact that in some countries, for example, Germany and the United States, a search of unrestricted scope was undertaken with the result that the patents issued in those countries were said to have a higher reputation and value than British patents. On the other hand, the Committee came to the conclusion that an unrestricted search was quite impracticable and that it would be better, if the British search were to be extended, that it should only extend over such an area as the Comptroller of Patents might, think useful in any particular case: for example, to search in the specifications of another country or to search in certain groups of technical publications. At the same time the Committee realised that an extension of the search would probably mean increased expenditure and they, therefore, made their recommendation subject to financial considerations. These considerations must, of course, be specially paramount at the present time. Accordingly, it is proposed that the extended area of search shall be within the complete discretion of the Comptroller and that any expenditure in- 199 volved shall be covered by an increased fee on the filing of the complete specification.

Then there is Clause 6, which is designed to carry out the Committee's recommendation with regard to defects in the existing law relating to unjustifiable threats of legal proceedings with regard to patents. It is obvious to everyone that considerable damage may be done by a person threatening the retail customers of a manufacturer with legal proceedings upon the ground that the manufacturer's goods which the retailers are selling constitute an infringement of patent. Then there is Clause 11, which enables the Comptroller of Patents to refuse an application for a patent if the alleged invention is so obviously contrary to well established natural laws as to be frivolous, as, for example, to take an extreme absurdity, a machine for the production of perpetual motion. Hitherto the Comptroller had no such power, and the Patent Office have been consequently compelled to grant patents, and thus increase the risk to the investing public, although the invention was obviously impracticable and contrary to natural laws.

Clause 12 deals with a very important matter—namely, the tribunal to hear appeals from the decisions of the Comptroller of Patents. At the present time all appeals in patent matters down to the time of the actual grant of the patent are heard and finally decided by the Law Officer. In all matters subsequent to the grant any appeal lies to the High Court. For many years the question has arisen as to whether this arrangement is entirely satisfactory. The Committee considered the matter very carefully, and came to the conclusion that a Judge conversant with patent matters would be a more satisfactory tribunal for hearing those appeals than a Law Officer. On the other hand, the Committee were impressed by the fact that the transfer of these appeals to the High Court, as High Court proceedings, might result in increased expense to the parties, and in order to obviate that possibility they have recommended that while the appeals should go to a Judge the persons who now have a right of audience before the Law Officers should have audience before the Judge, and the proceedings should not be treated as High Court proceedings. It is probably correct to say that most Law Officers within recent years have been in favour 200 of this change, and it is hoped that Parliament will accept the proposal.

The matters which I have mentioned are, it is thought, the more important points covered by the Bill, although no doubt some may take the view that other provisions of the Bill are equally important. However this may be, it is not thought necessary to comment at the present moment on any of the numerous amendments which are set out in the Schedule, as these no doubt can be considered by your Lordships in detail if desired at a later stage of the Bill. As I have said, this is a complicated Bill, and in order that there may be no complaint in the minds of any noble Lords as to undue haste over the matter the Government would propose to allow a rather longer time between the Second Reading, if it is carried tonight, and the Committee stage than is usual in these matters. I beg to move.