HL Deb 06 December 1960 vol 227 cc48-58

4.52 p.m.

Order of the Day read for the Bill to be considered on Report.

THE EARL OF DUNDEE

My Lords, I beg to move that this Report be now received.

Moved, That this Report be now received.—(The Earl of Dundee.)

On Question, Motion agreed to.

Clause 2 [Patent Fees]:

LORD CAWLEY

My Lords, I tabled this Amendment at the Committee stage but I did not move it. I am now tabling it again, shorn of certain superfluous words. As my noble friend Lord Dundee has said that Her Majesty's Government now look favourably upon this Amendment, I need say no more; and I therefore beg to move.

Amendment moved—

Leave out Clause 2 and insert— ("2. Her Majesty may by Order in Council vary the maximum fees set out in the First Schedule to the Patents Act, 1949: Provided that no recommendation shall be made to Her Majesty in Council to make an order under this section unless a draft thereof has been laid before Parliament and approved by resolution of each House of Parliament.").—(Lord Cawley.)

4.53 p.m.

THE EARL OF DUNDEE

My Lords, on the Second Reading of this Bill several of your Lordships, including Lord Silkin, Lord Cawley and Lord Ferrier, urged strongly that future changes in patent fees should be approved by the Affirmative Resolution procedure in Parliament, instead of being approved by the Negative Resolution procedure which was proposed in the Bill—although other fees, such as for trade marks and designs, have always been approved by Negative Resolution procedure. I promised I would present what your Lordships had said to my right honourable friend and that it would be considered by the Government. The Government considered very carefully what your Lordships had said, and they reached the conclusion that a statutory limit of £2 on the initial application fee, which was the one about which your Lordships had expressed far the greatest concern and anxiety, together with the Negative Resolution procedure for the other patent fees, would be more acceptable to your Lordships than Affirmative Resolution procedure for the whole lot, which might involve in future a large number of trivial discussions on the small changes in any of the twelve annual renewal fees.

I put forward this proposal in Committee last week with the confident expectation that it would be received with loud cries of delight. I did not contemplate for one moment that any of your Lordships would want to have a Report stage at all. In fact, my proposal received only one very faint murmur of approval, which I thought was prompted by kindness rather than by conviction, and it was clear, from what your Lordships said afterwards, that your Lordships in all sections of the House would very decidedly prefer the alternative of an Affirmative Resolution. I do not know whether I could say that I think the difference between an Affirmative and a Negative Resolution is likely to have any practical effect on the future of patent fees, which will probably go on depending upon how much is needed to defray the expenses of the Patent Office. This is a question affecting future Parliamentary time, and I think that if Members of Parliament feel strongly, as your Lordships do, that we ought to have an Affirmative Resolution to approve changes in patent fees, then the Government ought to persevere in its hitherto unsuccessful attempt to satisfy your Lordships. Your Lordships have listened twice to the arguments against an Affirmative Resolution, and if, after hearing those arguments, your Lordships still consider that we should pledge the future time of Parliament to this very small extent, I do not feel that the Government would be justified in seeking to override your Lordships' wishes in this matter.

I made representations to that effect after our last debate. The two Amendments on the Paper in the name of my noble friend Lord Cawley were drafted last week in consultation with the Patent Office. I thought at first that I might put them down in my own name, but Parliamentary Counsel thought it more appropriate that they should be put down in the name of the noble Lord, because they were drafted in order to replace the Amendment which he kindly withdrew in Committee last week, and the Government are willing to accept these Amendments.

I did my best this morning to get hold of the noble Lord, Lord Silkin, and I again tried to get hold of him before Prayers in case there was anything he might want to ask me about our proceedings this afternoon. If I had not had two Parliamentary Questions, I would have crossed the Floor of the House and had a conversation with the noble Lord on the Front Bench, which I was thinking of doing when my Questions came dangerously near. I wish I had succeeded in being able to have a word with the noble Lord, because I am sure that if I had, any misunderstandings there may have been could easily have been removed.

With regard to the Weights and Measures Bill, all I can say is this. If, whenever I make a concession to the noble Lord, Lord Silkin, on the Weights and Measures Bill, and if, whenever I accept his views to the extent of 100 per cent., as I am doing now, or agree to any Amendments he may move, he is going to get up every time and make a long speech complaining that I ought not to have clone so, I am afraid the proceedings of the Committee may last well into next summer! All that has been done in this case is to meet the wishes of all, or nearly all, of your Lordships, including the noble Lord, Lord Silkin, to the extent of 100 per cent, and I hope that this will meet with the approval of your Lordships.

5.0 p.m.

LORD CONESFORD

My Lords, my noble friend said "the approval of nearly all your Lordships," implying, I think, that possibly I might differ, as I ventured to say a word last time in defence of the view which he then, put forward. May I say that I welcome this Amendment as much as anybody else in your Lordships' House? As I explained on the previous occasion, I think that one can exaggerate the difference between an Affirmative and a Negative Resolution. There is the difference of out of whose time the debate on it comes, and the difference, to which the noble Lord, Lord Douglas of Barloch, drew attention on the last occasion, of who starts, whether it is the critic of the proposed change or the Minister. The Minister must start, if it is an Affirmative Resolution. I differ from the noble Lord only in his apparent view that it is always a disadvantage to have the first word.

My noble and learned friend on the Woolsack will recall the view attributed by gossip in the Temple to a distinguished advocate who, whenever he had a point of law in a case which was certain to go to the House of Lords in any event and in which he believed he was right, was said to prefer to lose his case in the Court of Appeal in order that he should have the first word in your Lordships' House. So I doubt whether it is always a disadvantage to have the first word. Nevertheless, I am sure that, while we can exaggerate the difference between an Affirmative and a Negative Resolution, in the present case an Affirmative Resolution is the better, and I join with other noble Lords in welcoming the Government's concession.

LORD FERRIER

My Lords, as one who has opposed Clause 2 of this Bill throughout the Bill's progress in your Lordships' House I feel it only right that I too should welcome what the noble Earl has said. If I can be of any comfort to him, and if my memory does not play me false, he said on the previous occasion that one of the differences between an Affirmative and a Negative Resolution was that, in the case of an Affirmative Resolution, Parliament was compelled to discuss it. That indeed is one of the points which has led me all along to feel that the decision which the noble Earl has now taken is the right one. I welcome what he said.

5.3 p.m.

LORD SILKIN

My Lords, I had not thought it necessary to say much on this matter—and I do not propose to do so now—but in view of the statement of the noble Lord, Lord Conesford, I would point out that there is a great advantage in knowing the case you have to meet, in spite of the example he has given us. If we know that the Government are proposing to increase fees for a certain reason, we are at much greater advantage in dealing with that reason than if we had to make a case in the negative, before having heard the Government.

I promise the noble Earl that if, on another measure which is coming before us, he accepts the views of myself and my colleagues, I shall not complain. I do not expect him always to accept our views. What I do expect—and I hope that I am justified in expecting it—is that those views, so long as they are not silly, will be treated with respect. They are the result of careful consideration, and I think that, in the majority of instances, they are worthy of some respect and some consideration. I would say that quite honestly I was under the impression that the noble Earl had not given consideration in the way which I thought we were entitled to have; but if I am wrong, I apologise sincerely. If the noble Earl intended all along to give the consideration which he did in fact give, I must have been wrong and I apologise for having made a long speech, as he says, on this point.

That is all I propose to say. Of course, I am very grateful to the Government for having accepted this Amendment. There is a slight difference in wording between my Amendment and that of the noble Lord, Lord Cawley. I have the words, Her Majesty may from time to time by Order in Council … whereas the words "from time to time" are omitted from Lord Cawley's Amendment. I do not know whether there is anything in the point, but, as the noble Lord's Amendment reads, it would look as if the Government might make amendment in the Schedule once for all, whereas my Amendment makes it clear beyond any doubt that, having amended it, they might further amend it from time to time. I should have thought it would be desirable in the interests of complete clarity to have those words inserted. I should be grateful to have the noble Earl's view on this.

5.7 p.m.

THE EARL OF DUNDEE

My Lords, an that point, think that I aim right in saying that the words "from time to time" were included in the Amendment which my noble friend Lord Cawley put down at Committee stage and then withdrew, and that the Amendment now in the name of the noble Lord, Lord Silkin, is an exact reproduction of that Amendment. The reason why these words have been left out in the present Amendment of the noble Lord, Lord Cawley, is that when I asked the noble Lord if he would kindly discuss the matter with the Patent Office, they both agreed that, for drafting reasons, it was preferable to leave out from this Amendment the words, "from time to time" and put down a consequential Amendment, which now appears in the Marshalled List. That is the only reason why the words are left out.

LORD DOUGLAS OF BARLOCH

My Lords, may I revert for one moment to the procedural Resolution Which was moved earlier in the day? It would certainly have been a little more enlightening if the noble Earl had explained at that time that he proposed to accept the Amendment of the noble Lord, Lord Cawley. We should then have known the reasons why it was proposed to abridge the procedure and take all the remaining stages to-day. The noble Earl may have communicated that Ito somebody privately, but he did not indicate it to the House generally. However, that is by the way.

I should like to say that I think that the public generally, and applicants for patents in particular, should be grateful to the noble Lord, Lord Cawley, for raising this question and for the successful result of his intervention. I do not know whether this will be a last word or a first word, or an intermediate word; but I will take this opportunity of pointing out to the noble Earl, who I presume at a not distant date will be introducing an Affirmative Resolution with regard to this matter, that, so far as I have been able to discover it, the information available with regard to the finances of the Patent Office is not at all helpful. An Annual Report is produced, but it covers not only patents but also designs and trade marks, and it is impossible to see from it what the expenditure of the Office is upon the various branches of its activities. I would point out to him, and to the Minister in another place, that we want a little more information, other than to be told that there is a deficit of £133,000 a year. On that, at any rate, I have discovered, from the Report of the Comptroller of the Patent Office, that if the fees from application and on filing a complete specification were doubled, as apparently is in mind, the additional revenue would amount on last year's figures, not to £133,000 a year but to £180,000 a year.

I should further like to point out that it is a matter for consideration, if it is accepted that this deficit has to be met by increase of fees, whether those fees should be increased in respect of applications and the filing of complete specifications, or whether there are not other fields in which it would be more proper to make an increase: for example, in the charges made for publications of the Patent Office, the revenue from which Amounts to £246,000 a year. A very slight increase here might go a long way to bridging the gap between revenue and expenditure. I would point out, too, that the expenditure of the Patent Office includes expenditure on maintaining the Patent Office library, which is available to the whole world and, in fact, is of great utility. Is it proposed that the public revenue should not contribute to the maintenance of this public library in the same way as it contributes to the maintenance of public libraries all over this country, either through taxes or through rates? I think that that point deserves some consideration before a recommendation is made to Parliament with regard to increasing the fees charged to the patentees. I sincerely beg the noble Earl that some more inquiries should be made into all the aspects of this case.

5.11 p.m.

LORD CHORLEY

My Lords, I am emboldened by the speech of my noble friend Lord Douglas of Barloch to add a few words, and I hope your Lordships will not feel they are irrelevant at this stage when we have succeeded in getting a concession from the Government. Those of your Lordships who were here will remember that my noble friend Lord Douglas of Barloch and I took a line against any fees in connection with patents, because we felt —and the noble Lord, Lord Ferrier, supported us—that contribution to the national wealth is made in these patents. The noble Earl, Lord Swinton (I am sorry he is not here to-day), pooh-poohed all this and said that he knew all about it, because he had been President of the Board of Trade, and there was no case whatever for suggesting that these fees weighed in any way heavily on the inventors. I have had a certain amount of fan mail (your Lordships are probably accustomed from time to time to receiving a certain amount of fan mail), and one of my letters was from an experienced man in this line of country, a chartered patent agent. I was particularly interested to find that he does not agree with the noble Earl, Lord Swinton, at all about this matter. He says that these fees hit the inventor just when he is at his most vulnerable—and that, I think, is a most significant phrase.

I hope the noble Earl, Lord Dundee, and the President of the Board of Trade will take into account what has just been said. The noble Earl made great point of the fact that ever since the start of this business attempts have been made to make the Patent Office pay its way by the levy of these fees. I very much doubt whether that is really so in the light of some of the information which has come to me from this experienced gentleman. Obviously, for a long time the Patent Office was used by the Treasury as a substantial source of revenue. From time to time, as the noble Earl knows, new Bills were passed into law. The duty of searching, for example, was introduced in 1905, by virtue of an Act of 1902, over twenty years after the birth of what is now the First Schedule of the original Act; yet nothing was done, so to speak, to increase the revenues required for that, because in actual fact the revenues coming in were ample. Exactly the same thing happened when the novelty search was extended by the 1932 Act. That search was then estimated to cost an additional £60,000 a year, and only some £25,000-odd a year was in fact levied by increasing the complete specification fee by £1.

The truth of the matter is that for many years the Patent Office has been making a fine profit and the Treasury have undoubtedly used it as a sort of milch cow. There is plenty of evidence which bears this out. For example, the Joint Chemical Committee in 1944, in a memorandum which was issued on Patent Law Reform, said that during the last ten years the profits handed over to the Treasury by the Patent Office had amounted to no less than £2½ million sterling, obviously a substantial sum. A little later in the memorandum they refer to "the large profits at present shown." Sir Kenneth Swan, whom we all remember as one of the outstanding experts on this problem, was Chairman of a Committee, commonly called the Swan Committee, and in their Final Report, issued in 1947, they refer, in paragraph 251, to: There being at present a substantial surplus of revenue over expenditure". It was not until well into the 'fifties that the revenue began to be caught up by the expenses; and even in 1952 the Comptroller's own Report stated that frequently there had been a large surplus. It was only at that date, as I say, that the statutory fees were no longer sufficient to meet the increased expenditure.

I feel that we ought to have this in mind, and we should remember that for many years substantial profits have been made. The increased expenditure in modern times ought to be offset against the profits of the past before fees are put up in the way in which it is now proposed. I hope that the noble Earl and his right honourable friend, when they come to look at these things, will bear these points in mind, and also that they will remember the important point that has just been made by my noble friend Lord Douglas of Barloch, who points out that there are many facilities provided at the Patent Office which ought not to be met out of these fees but ought to be met out of the general revenues of the State. This applies in particular, perhaps, to the library, which, as my noble friend says, is used much more widely than by patentees, chartered patent agents or other people who are concerned in getting their patents registered. It is a general library which anybody can use.

I remember being told by a distinguished scientist, whose name is known to everybody in your Lordships' House and who is now head of a leading college at Cambridge, that when he was an undergraduate he used to find the Patent Office much the best place to carry on his studies; and I have no doubt that that is not an exceptional case. It is a fine library, which is very comfortable to work in, and it has a great attraction for all sorts of people not in the slightest degree concerned with patents. It is not right that the poor inventor who is called upon to pay these fees in connection with the registration of patents should have to pay for other people who are using the library and other of the facilities which are provided at the Patent Office. I hope that the President of the Board of Trade and his officials will bear these matters in mind when, having got this Bill—because we cannot obviously resist it any further—they come to look at the fees with the idea of putting them up. These are important matters, and I hope that these debates, which have been very interesting and valuable, will have a due effect on the civil servants and on the Minister when they come to look at these figures.

LORD CAWLEY

My Lords, I must express my personal gratitude to the noble Earl for the trouble he has taken on this Amendment. He appears to have had a pre-hearing from the noble Lord, Lord Douglas of Barloch, and the noble Lord, Lord Chorley, of what they are going to say when the first Order is placed before this House. There is only one other small matter, and that is the deletion of the words, "from time to time." The Parliamentary draftsman pointed out that these words were unnecessary by reason of the Interpretation Act. That is why they have been omitted.

On Question, Amendment agreed to.

LORD CAWLEY

My Lords, I beg to move the Amendment to the Title.

Amendment moved—

In the Title, line 7, leave out ("repeal") and insert ("provide for amending").—(Lord Cawley.)

On Question, Amendment agreed to.

Then, Standing Order No. 41 having been dispensed with (pursuant to Resolution), Bill read 3a and passed, and sent to the Commons.