PATENTS AND DESIGNS BILL [H.L.] (Hansard, 2 June 1949)

§ LORD LUCAS OF CHILWORTH
My Lords, in asking your Lordships to give a Third Reading to this Bill, I do not think it necessary for me to inflict many words upon you. But I trust that it will not be thought presumptuous of me if I say that in my opinion this Bill—as is the case with all Bills of this description—will leave your Lordships' House as a thoroughly workmanlike document and something better than it was when it was introduced.
On the conclusion of the Report stage the noble and learned Viscount, Lord Simon, the noble Viscount, Lord Swinton, and the noble and learned Viscount the Lord Chancellor, were kind enough to pass some comment upon the way in which I had handled this Bill in your Lordships' House. If I may take their all too generous words to mean that I had discharged my duties to your Lordships' House in a manner which was acceptable to your Lordships, that knowledge is my reward. But I could not have done that, and this Bill would not have taken the form which it has, had it not been for the help which we on this side of the House have received at every stage from the noble and learned Viscount, Lord Simon, and the noble Viscount, Lord Swinton. We are deeply indebted to them.
May I also express our thanks to the noble and learned Viscount who sits on the Woolsack who, as Lord Simon said during the Report stage, is at all times only too willing to give us the benefit of his learning and advice; and we greatly benefit thereby. May I, on behalf of His Majesty's Government, also thank the President and Council of the Chartered Institute of Patent Agents for their help and assistance not only in the preparation of this Bill but through all its stages? With those words I beg to move that the Bill be now read a Third time.

§ LORD REID
My Lords, I should like to take the opportunity to raise a point of Scottish legal procedure. I think perhaps a word of explanation is due to 1370 your Lordships of why I should raise it at this late stage of the proceedings in this House. I have reason to believe that the point I have in mind has been receiving the attention of His Majesty's Government. It is a matter of some complexity, and I had hoped that perhaps an Amendment on the point would be forthcoming in the course of the proceedings in your Lordships' House. I make no complaint that such is not the case, because I readily agree that it is better, if there is to be an Amendment, that it should be well thought out, even at the cost of sonic delay. I do not ask to-day for any statement in precise terms, but I am hopeful that perhaps the noble Lord, Lord Lucas of Chilworth, may be able to make a favourable statement in general terms which may lead up to an Amendment in the course of the passage of this Bill through another place. In the hope that such a statement will be forthcoming, I shall endeavour to be brief. I shall omit any reference to minor points, and I hope that I may not be criticised for having dealt unduly shortly with such points as I propose to mention.
When one turns to Clause 47 of the Bill, one finds in subsection (1) that there is introduced what I think is a new form of appeal. In all cases appeal is to the Court of Appeal. It is familiar to your Lordships that that is purely an English court, with no jurisdiction in Scottish matters I wish to ask the Government whether they cannot introduce an Amendment whereby an appeal at this stage may be to the appropriate Scottish Court—the Court of Session. The Court of Session have always had a considerable jurisdiction in patent cases. That is recognised, of course, in the principal Act. Although we in Scotland cannot claim quite so much experience of patent matters as the courts down here, I think I may say that the decisions of the Scottish courts have always been recognised as decisions of high authority. I think I may also say that, so far as litigants are concerned, the procedure in Scotland has always been regarded as tolerably satisfactory. Perhaps I can say that with the more assurance because I have never had the good fortune to be engaged in a patent action while practising at the Scottish Bar, so I may be able to take an unprejudiced view of our procedure. It is not easy to devise an appropriate Amendment, because it is 1371 difficult in this matter to say what is a Scottish case and what is an English case, but I think that probably an appropriate Amendment could be devised. I do not propose to offer any suggestion as to the precise method of delimitation, because I feel sure that if the principle is accepted, the Government will discover a good way of carrying it out. I am sure we should all prefer an Amendment which would work well in practice, rather than one which would work well only in theory or on paper.
I would venture to raise two other matters at the same time. If there is to be a separation between Scottish and English cases at that stage, might it not take place at an earlier stage also? I agree that this is a matter which might well have been raised in Parliament during the passage of earlier Bills which have dealt with this subject, and in a sense I am asking that Parliament should go back upon earlier decisions. But perhaps I shall not be regarded as controversial if I say that Scottish affairs have not always received the detailed attention, either in your Lordships' House or in another place, which they have been receiving in more recent times. Therefore, perhaps one might be entitled to ask that previous decisions be reviewed. The proceedings to which I refer are those before the comptroller and before the Appeal Tribunal. With regard to proceedings before the comptroller, I recognise that this is primarily a matter of meeting the convenience of all concerned, and I would not ask for any rigid Amendment that would neglect that essential factor. But, making all allowances for that, I think there is room in appropriate cases for proceedings in Scotland by the comptroller. Again, if that principle is accepted, I think something can be devised which will give satisfaction and the least inconvenience in practice.
The Appeal Tribunal, of course, unlike the Court of Appeal, is in theory a United Kingdom Tribunal, and therefore there is not the same theoretical objection to Scottish cases being heard by the Appeal Tribunal. But the Tribunal sit in England, and where the parties are Scottish I think there is a strong case to be made for an Appeal Tribunal hearing appeals in Scotland. I do not base that view primarily on sentiment— 1372 although sentiment is a matter which ought to receive due consideration when we are dealing with the allocation of judicial work between the two countries. I base my view primarily on the questions of expense and convenience: where all the parties are substantially interested in Scotland, it will be cheaper and more convenient to them if they can appear before a Scottish Tribunal, rather than have to come down here. I would add that there is obviously no insuperable objection to such a course, because, in a limited way, the proviso to subsection (1) of Clause 47 provides for this very separation. What would be desirable, I think, is a rather broader separation than is there provided.
There are one or two other matters of a minor character with regard to which I will not detain your Lordships. I think I have said enough to raise the main issues, and if these points can be met by Amendments I feel sure that they will meet with considerable gratification, and will be of great assistance to the administration of justice in Scotland.

§ VISCOUNT SIMON
My Lords, as I have taken some little interest in this Bill, perhaps I may be allowed to say that I think what the noble and learned Lord, Lord Reid, has suggested is very convenient. I had heard that this question of Scotland's position was to be raised, but it seemed to me that it would be just as well, though the matter was mentioned in your Lordships' House at this stage, that consideration of what should be done to amend one or two clauses of the Bill in order to meet this claim should be reserved for the other place; there, no doubt, the Lord Advocate and others who know the subject will have something to say. It is really quite a limited point. Perhaps I may say, just for clearness, that there are three ways in which a Scottish interest might arise. An ordinary patent case, brought between a patentee and somebody who he alleges is infringing his patent, can today be brought as well in Scotland as in England; it is merely a question of where the proceedings are started. All that is already provided for. Inasmuch as Scottish people are both very inventive and sometimes very argumentative—I will not say very litigious—it follows that there is a certain amount of work of that sort which is discharged now 1373 by the Scottish courts, and which will continue to be so discharged. That sort of case, therefore, raises no difficulty at all.
There is then a case under Clause 47 of this Bill, owing to the fact that it contains a new provision. Up to the present, though the comptroller decided these matters in the first place, with an appeal from the comptroller to the Appeal Tribunal, there was not a provision for a final appeal, if necessary to the Court of Appeal. The Court of Appeal is, of course, an English institution. I must say that I entirely sympathise with the view that in proper cases there ought to be provision for an appeal to the corresponding Court of. Session in Scotland. It will not be easy to determine in which of the two compartments a particular appeal is to fall, because under Clause 47 the matter begins by a proceeding before the comptroller, who is the comptroller for England and Scotland and who therefore, quite naturally, may be regarded as administering the law on behalf of both countries.
There is one other point that arises under Clause 39 of the Bill, which is a clause of considerable interest to people who do not care much about the technicalities of patents. That clause deals with the disputes which sometimes arise between an employer and a person whom he has employed when it is the employed person who has made the invention. Everybody will sympathise with the view that, in a case like that, where the workman is responsible for the invention, though he is in the service of the employer, it is right to see, if necessary by judicial proceedings, what the workman's remuneration should be. That, I think, is already a matter which in certain cases can be decided by going ultimately to a Scottish Tribunal. In the first place, the comptroller considers it, and then, as my noble and learned friend, Lord Reid, has said, if either party is not satisfied with what the comptroller decides in such a matter, Clause 47 provides that … an appeal … where the parties to the dispute are resident in Scotland shall, at the request of any of the parties, lie to the Court of Session instead of to the Tribunal. Therefore, the matter is in quite a small compass. However, it is important, and I think my noble friend opposite will agree that it should be left to be dealt with in another place. We shall then have an opportunity of considering the Amend 1374 ment made, and I do not anticipate that there will be any acute controversy about it.
That leads me to make the last of the many observations I have made on this Bill—and it is a pleasant one. I am grateful to the noble Lord, Lord Lucas, for what he so kindly said about my colleagues and myself on this Bench who have done what we can to contribute to improving this Bill. I entirely agree with the noble Lord that in its present state—I think, on the whole, a very satisfactory state—the Bill is an admirable example of what this House can do for the benefit of the public. Under existing conditions it is very difficult to think that the other place could really have discharged this particular detailed piece of work. I know that sometimes it has appeared to noble Lords who have been listening to be a very technical matter, and certainly it requires rather close fitting of clause to clause. But it is also a very important matter, because we are dealing here with the rights of people who are entitled to have their inventive capacity and knowledge fairly And suitably recognised and rewarded. It is a duty of Parliament to do what is right for the man who has a fair claim. I think that as a result of our long discussions on this matter we have made that provision in a far more satisfactory way.
The Amendments made to this Bill so far must amount to some thirty or forty in number and many of them have come from suggestions put to the Government. I must end by acknowledging once again that the spirit in which those suggestions have been received, the discretion with which they have been further considered, and in proper cases adopted, redounds very much indeed to the credit of the noble Lord who has been in charge of this Bill. We one and all are greatly obliged to him.

§ LORD LUCAS OF CHILWORTH
My Lords, I am indebted to the noble and learned Viscount, Lord Simon, for his comments. With regard to the comments of the noble and learned Lord, Lord Reid, we are grateful to him for having put his observations before us. As the matter of the jurisdiction of the Scottish courts under this Bill is at the present time receiving the close attention of my noble and learned friend on the Woolsack, 1375 the Law Officers of the Crown, my right honourable friend the President of the Board of Trade and the Patent Office, I cannot in any way anticipate what the result will be, or what action will follow upon them. I trust that the noble and learned Lord will be content with the fact that they are receiving every consideration. I will undertake to convey his observations to the appropriate quarters.