PATENTS BILL [H.L.] (Hansard, 22 November 1956)

§ LORD MANCROFT
My Lords, the purpose of this Bill is to amend the Patents Act, 1949, in order to allow more time in which to do the work necessary to put an application for a patent in good order for acceptance. This Bill, I think, is an interesting corollary to the important debate we had in the House yesterday on the subject of science, scientists and scientific training. Let me begin by briefly explaining what the present practice is. Before any inventor can obtain protection for his invention in this country he, or more usually his patent agent on his behalf, must, among other things, prepare and lodge at the Patent Office what is known as a complete specification. This document must describe the invention and the best method known to the inventor of performing it. It must end with a claim, or claims, defining the scope of the invention claimed.
After the complete specification has been filed, it is scrutinised by an officer of the Patent Office, known as an 530 examiner, whose duty it is to ensure that it complies with the detailed requirements of the Patents Act. Having examined the complete specification, and having satisfied himself that the invention has not previously been published in the United Kingdom, the examiner must communicate to the applicant's agent any objections to the specification. The applicant must, if he wishes to pursue his application, take action to amend it, so as to satisfy the examiner that all the requirements of the Act have been complied with. On receipt of the Amendments, the examiner must again consider whether the objections are met. If they are not, he must again take up the matter with the applicant's agent. If a specification has not been put in order for acceptance within the overall time allowed, the application becomes void.
I now come to the question of this time limit. Before the war the time allowed between the date of filing a complete specification and the application becoming void was between six and eighteen months, although it was possible for the applicant to extend this period by not more than a further three months on payment of a fee. When the Patents Act, 1949—known more familiarly in the trade as "Lord Lucas's Act"—was drafted, it was envisaged that, when normal peacetime conditions were restored, the Patent Office examiner would make his first report about three months after the filing of the complete specification., and that it would be reasonable to allow a further nine months for the remaining steps to be taken. It was hoped that the arrears of unexamined specifications which had accumulated during the war would soon be a thing of the past. Section 12 of the Act of 1949, therefore, adopted the average of the pre-war time limit and made the period twelve months with an optional further three months on the payment of a fee.
Unfortunately, however, the hopes of 1949 have not materialised. Owing to the general shortage of science graduates, the Patent Office is unable to recruit enough examiners to keep abreast with the intake of patent applications. This is nearly 40 per cent. higher than the average pre-war figures and is still increasing, reflecting the technical advances in industry which we discussed yesterday and. which we all welcome. Before the war, the average 531 annual intake of complete specifications was about 21,000. This was dealt with by an average number of about 310 examiners. In 1956, the intake will be more than 29,000.
The complexity and difficulty of most inventions is substantially greater than before the war. The present examining staff of about 340 cannot keep abreast of this intake. By special efforts the staff may, this year, dispose of nearly 26,000 complete specifications. Your Lordships will see, therefore, that the excess of intake over output will be at least 3,500. The result of all this is that there is a very large arrear of unexamined applications. It is unusual for the examiner's first report on an application to go out until over twelve months after the complete specification was filed. This leaves no time available to the applicant for meeting any objections raised by the examiner.
Again, patent agents need staff with the same qualifications as the Patent Office and have similar difficulties in recruiting it; consequently they also are in arrear. The nine months which it was envisaged that Section 12 would in normal conditions allow them has proved to be quite inadequate. Sometimes as much as twelve months elapses before an agent makes even a first reply to the examiner's objections. The net result is that, instead of twelve months, nearly three years are in general necessary in which to put an application in order for acceptance.
As I have said, these arrears began to accumulate during the war, when staff was transferred to more urgent work. In order to bridge the gap between the statutory period of twelve months and the actual time necessary and to prevent applications becoming void because of noncompliance with the statutory time limit, the Patent Office made use of the powers conferred on the Comptroller by Section 6 of the Patents, Designs, Copyright and Trade Marks (Emergency) Act, 1939. Under these powers, the Patent Office has granted, and is granting, extensions of the period specified in Section 12 of the Act of 1949 whenever (and this now applies in practically every case) it has proved impossible to put an application in order within the statutory period.
The present delays can be reduced only by the recruitment of a considerable 532 number of properly qualified staff. But, as your Lordships will not need reminding after yesterday's debate, there is a general shortage of the sort of men the Patent Office needs, and this shortage is likely to continue. I am told that the requirements of industry for scientists and engineers will amount to over 94,000 by 1959, compared with just over 71,000 employed to-day. The corresponding figures for central Government are 16,000 by 1959, compared with 14,000 to-day. As my noble Leader told the House yesterday, a minimum goal for the nation over the next ten to fifteen years should be an annual figure of "graduations" in pure and applied science of about 20,000, as compared with 10,000 to-day.
The present delays in the granting of patents must, therefore, persist for a considerable period. It is unsatisfactory that a situation which is likely to go on for some time should continue to be met by the exercise of powers which, although embodied in a permanent Statute, are in essence emergency powers —and in saying that I am certain that I shall carry at least the noble Lord, Lord Silkin, with me. It is equally unsatisfactory that the Comptroller should continue to exercise powers which give him a discretion unfettered as to time limits.
On the other hand, we are anxious to do all we can to reduce the time taken to grant patents. We do not, for that reason, wish to lay down a period which cannot be altered without a further amending Act. What this Bill does, therefore, is to provide that the Board of Trade shall have power to prescribe by Order, from to time, the period during which an application for patent must be put in order for acceptance, subject to the limits that this period must not be less than one, nor more than four, years. It is intended initially to lay down the period of three and a half years, which the Chartered Institute of Patent Agents agree is a reasonable period at present; and this will come into force as soon as the Bill becomes law. Should the measures which the Government have undertaken with a view to improving recruitment prove successful, amending rules can shorten this period. Should circumstances, unfortunately, demand that it be lengthened, it will be possible to do so without further legislation.
533 The Bill also continues the existing provision of the 1949 Act for allowing the applicant an additional three months on payment of a fee. I do not think I need dwell on the remaining provisions of the Bill. Clause 2 deals only with transitional matters—applications already made at the time the Bill comes into force. Clause 3, for the avoidance of doubt, makes it clear that the extensions of time which have been granted under the Emergency Act of 1939, to which I have just referred, were validly granted. Clauses 4 and 5 are formal. After the Bill becomes law, the Comptroller will, of course, cease to exercise his statutory powers under the Emergency Act to grant extensions of the new statutory time limits. This Bill, which has not yet been considered in another place, is, I am afraid, a slightly complicated Bill about a very complicated subject. I hope that I have convinced your Lordships as to its necessity, and I recommend it to your Lordships' House for a Second Reading. I beg to move that the Bill be now read a second time.

§ LORD SILKIN
My Lords, we are grateful to the noble Lord for the clear way in which he has explained this most complicated subject. I am sorry that my noble friend Lord Lucas of Chilworth is not here to deal with this Bill, because he is a master of the subject and I am not; but the speech of the noble Lord discloses a very disturbing set of circumstances. It is a serious matter that people who apply for patents may well have to wait for four years, and under this Bill three and a half years, before they can have their patents approved. In the meantime, as the noble Lord will appreciate, a great deal of valuable industry and valuable production may be lost. I recognise that in the present circumstances it is essential that that time should be extended, in order to regularise what the noble Lord has explained is a slightly irregular procedure and, even more important, that the Bill makes permanent matters which ought to have been made permanent long ago, instead of still being dealt with by Emergency Regulations.
534 We cannot be satisfied that this long period should be permitted for the purpose of approving patents. I should like to ask the noble Lord, Lord Mancroft, whether the Government are taking serious steps to increase the number of examiners, because that seems to be the crux of the whole matter. Three hundred and forty examiners seems a very small number out of the total number of scientists and technologists that we are hoping to be able to train. I should have thought that this was a matter of the highest priority. This is not the occasion, and I am not qualified, to ascertain what are the rates of remuneration of examiners. They are obviously men of the very highest skill, and it may well be that the existing remuneration is nor sufficient to attract people of that calibre. If so, I would suggest that the Government might examine this matter again to see whether these highly trained men could not be offered a sufficient inducement to attract the very limited number that we require.
The price that we might have to pay would be small in proportion to the benefits we should secure in getting these patents approved at an earlier date. Although there might be repercussions (that is a favourite word in the Civil Service, and one that is always used to frustrate any urgent action), I think the Government ought to be prepared to face up to the problem of repercussions in order to get people urgently for this purpose. I hope, therefore, whilst I appreciate that the noble Lord will not be able to give any assurances this afternoon, without reference to his masters, that he will make the strongest possible representations to ensure that we do get at the earliest possible moment the number of examiners necessary in order that this shocking period of three and a half years may be substantially curtailed. Subject to those remarks, I recognise that we have to approve this Bill, although, personally, I do so with considerable anxiety.

LORD SALTOUN
My Lords, I think the noble Lord, Lord Mancroft, must rather welcome the contribution of the noble Lord, Lord Silkin, to this debate. I have great sympathy with him in what he said. Anybody who makes a practice of attending exhibitions in this country must be struck by the extraordinary manner in which, at one moment, one 535 problem presents itself to an industry or profession and everybody makes a similar contribution in solving that problem. I should like to emphasise what the noble Lord, Lord Silkin, has said about the importance of paying sufficient money and so getting sufficient quality in the examiners, because the question of whether or not an idea is patentable is a difficult one and requires a high degree of judgment and knowledge. That, I think, is an important point. This is a financial point, and perhaps not one properly resolvable by your Lordships, but I hope that the noble Lord, Lord Mancroft will bear it in mind.

§ LORD MANCROFT
My Lords, per-haps I may reply briefly to the two helpful speeches made by the noble Lords, Lord Silkin and Lord Saltoun. I cannot quarrel with the words they have used. We are fully aware of the difficulties, and we are doing the best we possibly can to attract more men into this difficult and important work. Let me tell your Lordships, briefly, what we are doing. We have started a recruiting drive. Action has been taken to attract graduates and undergraduates to a career in the Patent Office. The Permanent Secretary to the Board of Trade has made this matter his particular responsibility. The Patent Office sends representatives on recruiting tours, and pamphlets are distributed describing the work of the Patent Office and the conditions of service there.

§ LORD SILKIN
Can the noble Lord tell us what is the remuneration paid?

§ LORD MANCROFT
Yes, certainly. The remuneration has certainly been revised. The new recruit starts at £605. This runs up to £1,345, in a scale which contains two advances; and one promotion will take him up to £2,000. Those salaries (here I speak subject to correction) are, I think, generally similar to those given by the Scientific Services for the same qualifications. It might be maintained that, at the lower ages, they were inferior to those offered by industry, although I believe that, for the average man, the long-term prospects in the Patent Office are probably better than those in industry.
There are also attempts to widen the field of recruitment. The academic qualifications required have been extended and 536 a supplementary competition arranged to appeal to candidates above the normal age. Consideration is also being given to the possible transfer of suitable officers with these necessary qualifications from other Government Departments. I hope that I have said enough, without elaborating the point, to show the noble Lord, Lord Silkin, that we are making our best endeavours to attract the right sort of men into this sort of work.
The only other point, upon which I should like to conclude, is this: it is important that we should not, if we can possibly avoid it, lower the standard of either the examiners or the patent procedure. I believe that, in the long run, that would be detrimental to everybody. We are aware of that, and we are doing the best we can to meet this difficult situation. I shall not make all the twenty-odd speeches that were made yesterday in the debate on the scientific advancement, but I think every point made in that debate applies cogently to the problem that faces us in this Bill. But this Bill is a practical attempt to meet the practical difficulty which faces industry and science at the moment.