§ Amendments reported (according to Order.)
§ 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.
§ (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
847 by a German or Japanese national or a German or Japanese company; or - (b) 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 applicant, patentee, or proprietor of the design, as the case may be, proves that 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.
§ LORD PAKENHAM moved, in subsection (1), after "German" to insert "or Japanese." The noble Lord said: My Lords, the first Amendment standing in my name is one of several small Amendments to Clause 4, the clause which I may remind your Lordships is intended to bar from patents inventions of an enemy character, and made during the war period. This particular Amendment bars inventions which would not otherwise be barred by the Bill and which have been made by Japanese nationals on enemy territory. It is an Amendment in deference to a suggestion from the noble and learned Viscount, Lord Maugham.
§
Amendment moved—
Page 3, line 45, after ("German") insert ("or Japanese").—(Lord Pakenham.)
§ On Question, Amendment agreed to.
§ LORD PAKENHAM moved, in subsection (3) (b), to leave out "January" and insert "February." The noble Lord said: My Lords, this is an Amendment in deference to a suggestion thrown out by the noble Viscount, Lord Swinton. He suggested that we were not, perhaps, giving sufficient time for applications to be made under Clause 4 (3) (b), which your Lordships will remember deals with British inventions which have been duplicated in Germany or Japan. We have given another month which we hope will meet the noble Viscount. I do not think we can do more, because we shall run the risk, as he appreciated last time, of inducing people to go over to Germany and Japan, obtain inventions, bring them back, and secure patents. We hope a month will go some way to meet him.
§
Amendment moved—
Page 4, line 26, leave out ("January") and insert ("February").—(Lord Pakenham.)
§ VISCOUNT SWINTONMy Lords, I am much obliged to the noble Lord. I think this is a fair compromise. There is just 848 one point. We could not extend it too far, but, having extended the time by a month, there are certain other places in the clause where I think the January date occurs. Are any further consequential Amendments required?
LORD PAKENHAMNone that I have been informed of, but perhaps, if any are necessary, I may bring them forward on Third Reading. I have not been informed of any; so I take it that none are necessary.
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 4, line 28, leave out ("it") and insert ("the invention or design").—(Lord Pakenham.)
§ On Question, Amendment agreed to.
§
LORD PAKENHAM moved, in subsection (3) (b), to leave out all words after "national" and insert:
being either the applicant, patentee or proprietor or a person through whom he claims; or
(c) the invention or design was invented or designed by a prisoner of war in German or Japanese hands, unless it is shown that it was subsequently obtained from him by any German or Japanese national before the first day of January, nineteen hundred And forty-six.
§ The noble Lord said: My Lords, I formally move this Amendment and I will reserve my remarks until the noble Viscount has moved his Amendment to the one I propose.
§
Amendment moved—
Page 4, leave out lines 31 and 32 and insert: ("being either the applicant, patentee or proprietor or a person through whom he claims; or
(c) the invention or design was invented or designed by a prisoner of war in German or Japanese hands, unless it is shown that it was subsequently obtained from him by any German or Japanese national before the first day of January, nineteen hundred and forty-six.").—(Lord Pakenham.)
§ VISCOUNT SWINTON moved to amend the proposed Amendment by inserting after "prisoner of war," "or internee." The noble Viscount said: My Lords, the Amendment put down by the Government very fairly meets the case which was put forward by myself originally, and supported in all quarters of the House, that we ought to give the oppor- 849 tunity to a prisoner of war who, while a prisoner of war, had made a patent or design in enemy territory, and I think as regards prisoners of war the Amendment is completely satisfactory. But it really was my noble and learned friend Viscount Maugham, who last time raised the question of the internees, and said that, to his knowledge, certain men of science had been caught in Germany and interned in Germany, and that they had suffered the same hardships and the same disqualifications and disabilities as a prisoner of war, and if a civil internee had made an invention, he ought to be put in as equally good a position as the prisoner of war. Therefore I ventured to put this Amendment on the Paper in order that it might be ventilated.
§ I appreciate that an internee is not the same as a prisoner of war, and, of course, this clause as drafted does not just apply to British nationals. It would apply to any British prisoner of war or any Allied prisoner; he would be entitled to come here and claim his British patents. Prisoners of war are a defined class. The Allied Governments know who they were, and where they were imprisoned, whereas I presume there must be a great many persons of different races who were interned in Germany about whom very little is known—how long they were interned, where they were interned, and so on. Therefore, I do see that it is more difficult to deal with the internee than with the prisoner of war.
§ On the other hand, I should like—and I think we should always like—to protect the case of a British person. I am frankly more concerned to argue the case of a British man of science. If he has been interned in Germany throughout the war and has made an invention, there ought to be some means of letting him have the same rights as a prisoner. I appreciate that the case of the internee is a little more difficult to meet.
§
Amendment to the proposed Amendment moved—
After ("Prisoner of war") insert ("or internee").—(Viscount Swinton.)
§ VISCOUNT MAUGHAMMy Lords, I quite see that the word "internee" might lead to some difficulty in future, and I should obviously be quite content if the word "internee" were covered by the words "or a national of one of the 850 Allied countries." But if that will not do—like my noble friend who has just spoken, I am deeply concerned with the British internee—I would be willing to have a portion if I cannot have a little bit more. Of course, there were a number of British subjects in Germany in various occupations when war originally broke out, and the Germans have not been in the habit of doing what I think The Hague Convention suggests, of letting civilians out of a country on a declaration of war. Some were caught, but a good number of them probably escaped later because they went and hid themselves at the beginning; then may not have reached the stage of being interned. This only applies to those who were actually caught. If the noble Lord who is in charge of the Bill thinks fit to insert the words, "or British internee," I am perfectly content.
LORD PAKENHAMMy Lords, I am afraid that, after looking into this very carefully, from the point of view of those who would be most concerned with operating it (I have gone into it from every angle, with great sympathy at least) we must resist the Amendment put down in the name of the noble Viscount, Lord Swinton. I need not stress the general principle involved in the Amendment put down in my name. It was ventilated by both Viscount Swinton and the noble and learned Viscount, Lord Maugham, and I am glad it is acceptable to them, but they wish to extend the protection, extended last time, to internees. The trouble, as I think both the noble Viscounts appreciate, is that if it were simply the expression "internees" in the same way that we have got the expression "prisoners of war", it would include vast numbers of people of different nationalities upon whom it: would be impossible to check up. It would be more or less impossible to check their nationality and their date of internment, and even harder to establish the fact that they had genuinely made this invention independently of the Germans, or it may be the Japanese. So that the case as just put by the noble Viscount has confined itself to a narrow category of British or possibly Allied or other nationals. I must say to the noble Viscount, Lord Swinton, that it would be impossible to confine ourselves at the present time to British nationals, to make exceptions in the case of British nationals, 851 in view of the discussions going on over the whole patent field between ourselves and our recent Allies. There might be some possibility of using the expression "Allies" but I am afraid that would raise another objection; we should find ourselves at once confronted by a large crowd of people of miscellaneous nationalities over whom it would be impossible to exercise any effective scrutiny.
That is the broad position. To console the noble Viscount I would say that we do not honestly believe that any such cases will arise. No claims have come forward which, as far as we can judge, are made on behalf of internees. There is no obligation at the moment to state that one was an internee, so I do not state that as a definitive fact, but so far as I can judge no such applications have yet been made, and we doubt whether such applications will ever arise. Therefore I must ask noble Lords opposite, who tend sometimes to regard us as being afflicted by too much theory and to look upon themselves as more practical men, on this occasion to forgo completely theoretical perfection in order to arrive at a workable clause. I would beg the noble Viscount, after hearing that explanation, to see whether he cannot withdraw his Amendment to my Amendment.
§ VISCOUNT SWINTONIn the interests of practical convenience and getting on with the job I am ready to forgo the expression of ideology. I hope that may be a concession on my part which will be reciprocated elsewhere.
§ Amendment to the proposed Amendment, by leave, withdrawn.
§ On Question, original Amendment agreed to.
LORD PAKENHAMMy Lords, may I express our gratitude to the noble Lords who have helped us in such a constructive fashion to get this difficult Bill into a suitable order in which to send it to another place.