§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Pakenham.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD STANMORE in the Chair.]
§ Clauses 1 to 3 agreed to.
§ Clause 4:
§ Inventions and designs made in Germany or Japan.
§ 4.—(1) An application for a patent or for the registration of a design may be refused by the Comptroller at any stage of the proceedings on the ground that the invention or design was, during the period beginning with the third day of September, nineteen hundred and thirty-eight, and ending with the thirty-first day of December, nineteen hundred and forty-five, invented or designed in Germany or Japan or invented or designed by a German national in any territory which was then enemy territory.
§ (2) The ground mentioned in subsection (1) of this section shall be an additional ground for opposing under section eleven of the principal Act an application for a patent, or for revoking a patent under section twenty-five or section twenty-six of the principal Act or for cancelling the registration of a design under section fifty-eight of the principal Act or (by way of rectification of the register) under section seventy-two of the principal Act, and shall also, on infringement proceedings, be an additional ground of defence or for a counterclaim for the revocation of a patent or the cancellation of the registration of a design.568
§ (3) The foregoing provisions of this section shall not apply in any case where—
- (a) the applicant, patentee, or proprietor of a registered design, as the case may be, proves that the invention or design was invented or designed in Germany before the third day of September, nineteen hundred and thirty-nine, or was invented or designed in Japan before the seventh day of December, nineteen hundred and forty-one, and has at no time since the said third day of September or, as the case may be, the said seventh day of December, been beneficially owned in whole or in part by a German or Japanese national or a German or Japanese company; or
- (b) the applicant, patentee, or proprietor of the design, as the case may be, proves that, before the invention or design was invented or designed in Germany or Japan or, as the case may be, was invented or designed by a German national in enemy territory, it was independently invented or designed outside Germany and Japan by a person, other than a German or Japanese national, through whom the applicant, patentee or proprietor claims.
§ (4) An appeal shall lie from any decision of the Comptroller under this section to the Appeal Tribunal, and the provisions of the principal Act relating to appeals to the Appeal Tribunal shall apply to appeals under this section.
§ 4.50 p.m.
VISCOUNT SWINTON moved to leave out subsection (1) and insert
(1) An applicant for a patent or for the registration of a design may be refused by the Comptroller at any stage of the proceedings on the ground that before the date of the application the applicant had access to information that the invention was, during the period beginning with the third day of September, nineteen hundred and thirty-eight, and ending with the thirty-first day of December, nineteen hundred and forty-five, in use or known in Germany or Japan or invented or designed in Germany or Japan or invented or designed by a German or Japanese national in any territory, which was then enemy territory.
§ The noble Viscount said: The Amendment standing in my name and the Amendment in the name of the noble Lord, Lord Pakenham, are both intended, I think, to deal with the same matter. On the Second Reading, I drew attention to the fact that, under the Bill as drafted, a British subject who had made an independent invention during the war and who might have applied already for a patent, the grant of his patent having been postponed for reasons of secrecy, would be—surely, this is an error in drafting—precluded from obtaining a patent in this country if it subsequently transpired that during the war a German or a Japanese (because the provisions 569 apply equally to Japan) had made a similar invention, although the British inventor did not and could not possibly have known anything about the discovery.
§ That, I am sure, is a fault we should all wish to remedy. The purpose of my Amendment is really to put—as I understand the law—the rights of an applicant for a patent exactly where they would be under the patent law of this country as it stands. If he knew about the German invention, or indeed, if he had means of knowing by publication in some scientific journal or otherwise, then, under the ordinary law, an applicant for a patent would not be entitled to get a patent in this country because he could, should or might have known about it. But what we want to safeguard is the position of a man who did not know and really could not have known what was happening in Germany and who made an independent invention on his own. That is what my Amendment seeks to do, and the noble Lord's Amendment also. On looking more closely at my own Amendment in conjunction with his, I am not sure whether if my Amendment were accepted, we should not have to put further consequential Amendments in the clause later on.
§ I should like two assurances from the noble Lord, if it is convenient to the Lord Chairman to discuss the two Amendments together. The first is that if we accept his Amendment, the British applicant will be protected, quite irrespective of the date when the invention was made in Germany. If he could not know about it, it does not make the least difference whether the German made his invention before or after the British subject made his invention. I want to be quite clear about that. The British subject ought to be protected, whatever time he made his invention. The second point is concerned with proof. I think under my Amendment the onus of proof would be upon the Comptroller and not upon the applicant: that is to say, it would be up to the Comptroller to show that a man had knowledge or could have had knowledge. I think that might be a variant of the 'ordinary law and I do not press it provided this is understood: that very strict proof by the applicant will not be required.
§ Quite obviously, if somebody was guilty of misrepresentation, then nobody 570 would wish to defend him at all on the matter of the patent, and the Comptroller ought out of hand to turn him down or to invite the Court so to do. I take it, however, if the noble Lord's form of Amendment is taken, that if the applicant produced the particulars about his patent and filed an affidavit that it was original and that he had no knowledge of it from any corrupt enemy source, then that would be accepted, and he would not be put to any special proof to show that he did not or could not have known what was happening in Germany. With those remarks I beg to move.
Leave out sub-section (1) and insert the proposed new subsection.—[Viscount Swinton.]
§ 4.52 p.m.
§ VISCOUNT MAUGHAM
May I add a word or two on this clause, which really does raise some very curious and, as I think, rather difficult points? If I may express the opinion, my noble friend Viscount Swinton has good ground for his proposed Amendment, and for this amongst other reasons: that unless some such Amendment is put in—and now I am referring rather to the second Amendment under his name—an invention or a design made, we will say, by a British prisoner of war in Germany, would be open to objection. I dare say there are not many such inventions, but I know that during the long years that some unfortunate people were imprisoned in Germany they had lots of time to make designs, if they were people with arty skill in designs. It is not, of course, intended by Clause 4 of the Bill to prevent such a person getting protection for his design in this country.
There are, however, inure points than that, which I invite the noble Lord who is in charge of this Bill to consider. Take one, the simplest of all: the one that rests on the words "within enemy territory," which my noble friend Viscount Swinton has adopted in his Amendment. I do not know whether those words have ever been used before in any Act of Parliament, but I cannot remember their being in use. I know in popular phraseology it is intended to include, and perhaps intended only to include, territories which were in enemy occupation. I am not quite certain whether the words will not lead to litigation, to find out precisely if that is all they mean or whether there should 571 be some other qualification. Take the case of France, for instance.
May I interrupt the noble Viscount, with great deference, to refer him to the clause concerning definitions—Clause 7—where a definition is provided of "enemy territory"? I do not know whether it satisfies him, but there is a definition there. I thought that would help the noble Viscount.
§ VISCOUNT MAUGHAM
I am afraid I had not noticed that point, and I must apologize to the House if I have raised a subject which is not necessary. Which is the clause?
§ VISCOUNT MAUGHAM
I must apologize; I had not noticed it. Then I need not trouble further with that. The other point I wanted to refer to was this. The second Amendment refers to a case where a patentee, or the proprietor of a design, or the applicant, proves that the invention or design was invented or designed by him while he was a prisoner of war. I am not quite sure whether my noble friend Viscount Swinton has gone quite so far as he wished to go.
§ VISCOUNT SWINTON
No, I was dealing with the first Amendment in my name and the Amendment in the name of Lord Pakenham, which did not touch the prisoner of war point but was intended to protect the man who was in this country and made an invention in this country although a German may have made a similar invention in Germany. I am going to move my other Amendment later.
§ VISCOUNT MAUGHAM
When you said you were referring to the second Amendment, I was not sure that it was not yours with which you were dealing.
§ VISCOUNT MAUGHAM
In that case I will not say anything more on that at the moment. I will only add this. I am not quite sure that the noble Lord in charge of the Bill has explained to us why the last words in Clause 4 (1) are confined to German nationals. The inventions or designs that we are dealing with here are inventions and designs in Germany or Japan in the first instance, and then it goes on to relate to inventions or designs by "a German national in any territory which was then enemy territory." I humbly apologize for what I said about enemy territory. But why only a German national? Why does it not include the Japanese? I am not sure that it should not include an Italian, because the territories which were then enemy territories will include Italy, Japan, and, I presume, France at one period, and a number of other countries in Europe, because there were thirteen of them which were in the hands of the Axis powers, particularly in the hands of the Germans. I assume, therefore, that they are enemy territories within the meaning of Section 15 of the Trading with the Enemy Act, 1939.
At any rate, that is my very clear recollection, and, if so, ought not the end of the clause which we are now discussing in Committee to be somewhat extended, so that it will cover these other cases? It would be curious if inventions or designs by German nationals were excluded but those by Japanese, Italians and others were not. However, I have not got an Amendment down on the paper with regard to this matter. All I can ask the noble Lord in charge of the Bill is to consider this point and see whether it does not need Be dealt with. In the meantime, I support my noble friend Viscount Swinton in his first Amendment.
May I first of all reply to the noble Viscount, Lord Maugham? Certainly the point he has just raised will be considered. I know there was some question of including a reference to Japanese inventions in enemy territory outside Japan, but it was thought hardly worth placing in the Bill. The other issues he raises under that same heading are rather wider, but since he has raised them, I will convey them to the authorities to see whether there is any disposition to widen the scope of the Bill. I should imagine not, in view of the fact that this Bill is intended to deal with German and Japanese inventions.
573 Coming to the first Amendment of the noble Viscount, Lord Swinton, I certainly feel it would be only proper to acknowledge with gratitude the part he has played in bringing this important question to light. Of course he is an old President of the Board of Trade, so he understands things from the inside. I have heard of poachers turning game-keepers, but here we have got a game-keeper turning poacher, and a very formidable phenomenon it is. We are all agreed in the broad objective that we are seeking under Clause 4; we are trying to make sure that German and Japanese inventions made during the war shall not be made the subject of patents in this country. We are, to put it in another way, trying to make freely available to British industry the fruits of German and Japanese war-. time inventions. That is the very broad object, but there is a second object which is, I think, very much clearer in our minds after the points made on the subject the other day by the noble Viscount, Lord Swinton. The object which he is seeking to realize by his Amendment and the object which we are seeking to realize by our Amendment—he will forgive me if I say that we prefer ours—
The noble Viscount has had a lot of experience in this field. We are trying to secure the same object, and I can give him straight away those broad assurances that he asked for in his speech. Although I do not know that I can promise that an affidavit will be accepted in all cases as sufficient proof, I am told it will be accepted in the case of any reputable citizen. If there is any reason to doubt the word of a citizen, further evidence might be required, hut, broadly speaking, in the case of any reputable citizen an affidavit will be sufficient. So we can give him those two assurances without any difficulty, and indeed
The application has got to be made before January r, 1946. As far as German and British inventions are concerned, it does not matter which was made first during the war period. The British inventor is protected. Now that we are clear about our 574 main objective, and what I might call our subsidiary objective, I think it only remains, on the subject of these two alternative Amendments, to deal with the question of proof. As the noble Viscount has said, it might be rather difficult under his Amendment. In fact, I am told it would be extremely difficult, and might well be impossible, for the Comptroller to prove that the British invention was derived from the German invention. I am sure the noble Viscount will take it from us that it will be much more convenient administratively, and will work very much better if the onus is put on the applicant, providing always that in all normal cases an affidavit will be sufficient to establish proof to the satisfaction of the Comptroller. I do not think at this stage I need say any more, except again to cypress thanks to the noble Viscount for raising the matter and to say I hope very much he will accept our Amendment as giving effect, perhaps more effectively and efficiently, to the purposes we both have in mind.
§ VISCOUNT SWINTON
I am much obliged to the noble Lord and to the Government. I am perfectly prepared to accept their Amendment. I know that when the Government get down to a thing they are much more likely to draft it in the right way. I imagine that the date January r, 1946, is right. I am not quite sure that I am in order in raising it on this. Obviously, we do not want to give any chance to people after the German knowledge has once become available to the world, because they aright pick it up and bring it back. On the other hand, there might be somebody who had made a perfectly genuine invention which he could show was invented before V Day, but who, for some reason or other—he might have been ill or he might have been out of the country—had not made his application formally before this date. That man ought not to be prejudiced.
I quite see that you have got to have some broad date laid down because otherwise you might have anyone picking up inventions and bringing them along. I do not ask the noble Lord to deal with this now, because I ought to have raised it in the form of an Amendment, but I would be grateful if he and the Board of Trade would look at this between now and the next stage, and see whether it would 575 not be fair to all parties to put in some proviso to the effect that if a man was out of time through no fault of his own, and if he established with very definite evidence that he had not profited by and knew nothing about, and really could know nothing about, a German or Japanese invention, and if he absolutely established that he had made his inventions before V Day, there ought to be locus penitentiae for him.
I am much obliged to the noble Viscount. I will certainly look into that. It is a point I have heard discussed, but no doubt he will give us time to have a further look at it.
§ Amendment, by leave, withdrawn.
LORD PAKENHAM moved, in subsection (3), at the beginning of paragraph (b), to insert
the application for the patent or for the registration of the design was made before the first day of January, nineteen hundred and forty-six, and".
§ The noble Lord said: I beg to move the Amendment standing in my name.
Page 4, line 24, at beginning insert ("the application for -the patent or for the registration of the design was made before the first day of January nineteen hundred and forty-six, and").—(Lord Pakenham.)
§ On Question, Amendment agreed to.
LORD PAKENHAM moved, in subsection (3) (b), to leave out
before the invention or design was invented or designed in Germany or Japan or, as the case may be, was invented or designed by a German national in enemy territory.
§ The noble Lord said: I beg to move the Amendment which stands in my name. It is a consequential Amendment.
Page 4, line 25, leave out from ("that") to ("it") in line 28.—(Lord Pakenham.)
§ On Question, Amendment agreed to.
VISCOUNT SWINTON moved, at the end of subsection (3), to insert
or (c) the applicant, patentee, or proprietor of a design, as the case may be, proves that the invention or design was invented or designed by him while he was a prisoner of war in Germany, Japan, or any territory which was then enemy territory.
The noble Viscount said: I beg to move the Amendment to which the noble and learned Viscount below the gangway was good enough to give his support when he spoke. I do not suppose there will be many cases of this kind, but if there is one man who, above all others, we should want to protect if he had a real case, it would be the man who was a prisoner of war. Supposing a prisoner of war did invent a patentable article or a design while he was in a prison camp in Germany or occupied territory, he would, under the Bill as drafted, be precluded from applying for or getting his patent because the invention would have been made in enemy territory—where he had no desire to be, and where he certainly had no access to German secret processes. I know that in all probability certain further work would have to be done when he got back; he probably would have to get his experiments done, and so on, and he might have done that. There is another possibility which really reinforces the point the noble Lord said he would look at about the possibility of locus penetentiae. One thing which kept up the morale of our prisoners more than anything else was the amazing work in which they kept themselves occupied. They did, for all I know, design work. It might very well be that a prisoner of war had got a design practically all complete in his hands when his imprisonment ended and that he put the finishing touches to it after his release. Such a man is obviously the sort of man we would all want to protect and it is in his interests that I move this Amendment.
Page 4, line 32, at end, to insert the said new paragraph.—(Viscount Swinton.)
§ VISCOUNT MAUGHAM
My noble friend has put his case about prisoners of war so clearly that I really do not think I need add anything to it. I would only say that of course you can work out an invention without any experiments if you really know your job. A skilled designer could develop an invention for, say, a new form of motor car engine entirely on paper, and make all the necessary drawings so that his invention might be complete at the end of the four or five years that he was a prisoner of war. So this clause really should cover invention and designs. As my noble friend has said, it is easier to do it in relation to designs than it is in relation to patent inventions. But I want to go a little bit 577 further—that is unless I have come upon another mare's nest. I hope I have not. It would certainly be something new for me to discover two in the course of one afternoon.
What I desire to point out is that the same thing could happen not only with regard to inventions or designs by prisoners of war but also with regard to inventions and designs by internees who are British subjects. I know that there were large numbers of internees in some of these countries, and an internee inventor should not be exposed to this risk to which my noble friend Viscount Swinton has drawn attention. If the noble Lord who is in charge of the Bill accepts this Amendment, I would venture to suggest that he should also seek to make arrangements to cover the case of internees. There is one thing more which I would like to add although it is not perhaps quite so likely to be useful. This relates to prisoners of war who managed to escape. I have known of cases of gallant soldiers who have been for months at large in enemy occupied territory, supported by inhabitants of that territory who were willing to help them. They, I think, could not be regarded as being prisoners of war any longer in those circumstances. I think that a person is only a prisoner of war from the point of view of legal phraseology while he is with in the prison walls. When he ceases to be within those walls lie automatically ceases to be within the category of a prisoner of war. Perhaps, therefore, Lord Pakenham would take the trouble to see in making a perfect Amendment so as to cover these people who ought not to be deprived of any of their rights that it covers people whom he really does not intend to affect adversely by the substantive provisions of Clause 4.
The principle stated by my noble friend Viscount Swinton and somewhat expanded by Viscount Maugham is not unacceptable to us. I would say, however, that cases such as those which they have described are regarded as very improbable indeed. After all, if a man has invented something as a prisoner of war in Germany and he comes back here and applies for a patent, the Comptroller is not going to try to stop him getting one, and there is only just a possibility that a friend might intervene and say, "Oh, but that 578 was published during the war." If, in fact, it was conceived in the man's head during that period he was not under any statutory obligation to disclose the fact immediately he came back here. So such cases are considered to be very unlikely. But, as I say, we admit the principle, and like both the noble Viscounts who have spoken on this Amendment we are most anxious not only to do no injustice but also to be quite clear before the world as doing no injustice to prisoners of war. Viscount Maugham has mentioned one or two other possible cases. Without exhausting my own intellectual resources I think that I could mention several more myself, but I will not inflict them upon the Committee this afternoon. I can assure the Committee that we do accept the principle while not necessarily accepting the precise words. With the permission of the House we will bring forward something to meet this at the next stage of the Bill.
§ VISCOUNT SWINTON
I am much obliged, for I think that something ought certainly to be put into the Bill in this connexion. Lord Pakenham has said that the Comptroller's attitude would naturally be friendly towards a man putting forward an invention or design in circumstances such as have been outlined. But may I suggest that we have got to be very careful about this. In this connexion, the Comptroller does not act as an administrative officer but as a judicial officer. When an applicant for a patent goes before him he has got to exercise the wide powers which are given to him in a strictly judicial capacity. It may be satisfactory as a matter of administration to say: "This is the way I am going to administer it," but the noble Lord cannot give any undertaking on the Comptroller's behalf as to the manner in which he will act in his judicial capacity. The Comptroller is bound to interpret the law with complete accuracy, so far as he can, and the applicant is bound to put all his cards on the table.
§ VISCOUNT SWINTON
I think he is. But here we will assume we are dealing with a thing which has been invented and there may be cases in which there is a German invention like it. The onus of 579 proof is on the inventor to show that he did not know anything about that. I would have thought that in putting his case absolutely frankly to the Court of the Comptroller he would have to say in his affidavit: "I did invent this thing when I was a prisoner of war"—or an internee as the case may be. I agree that internees should be included in this—"in Germany." He would further say "I was able to put the whole thing on paper, and I have put in my application as soon as I returned here." The Comptroller, kind hearted as one can assume that he will be and anxious as he undoubtedly will be to give the man the benefit of the doubt, will be strictly bound by the words in the Act. So I hope that this will be looked at and that something will be done to ensure that we may be perfectly certain that provision is made in accurate legal phraseology to protect these people.
I will not attempt, to bandy arguments with the noble Viscount on matters of legal knowledge but I assure him that we shall do our best to give expression to the principle which he is upholding. I would reiterate, however, that we think that cases of this kind are very unlikely to occur—in fact, we very much doubt if any such case ever will occur.
§ VISCOUNT MAUGHAM
May I add one word because I do not want the noble Lord to brush this aside when he comes to consider this clause? I have been told that at the beginning of the war the Germans captured many people of great scientific attainments and they would not let them leave Germany. Those people, therefore, have been in Germany throughout the five-and-a-half years or more that the war has continued. What they have produced in the way of inventions or designs I cannot say, but it might be that, in this connexion, there are one or two rather important matters which would come within the scope of Viscount Swinton's Amendment.
VISCOUNT ST. DAVIDS
There is a further point on this. There have been, as I know personally, a large number of inventions, particularly in the line of cooking stoves, evolved both in German and Japanese prison camps. In many instances the design of these stoves reveals 580 great ingenuity, and, indubitably, some of them are going to be patented in this country. Similar things may well exist elsewhere, and I think that this is a consideration which the Government might take into account also.
§ Amendment, by leave, withdrawn.
§ Clause 4, as amended, agreed to.
§ Remaining clauses agreed to.