§ 2.39 p.m.
§ Order of the Day for the Second Reading read.
§ THE MINISTER WITHOUT PORTFOLIO (THE EARL OF DUNDEE)
My Lords, there is an Industrial Property Union, consisting of 49 countries, one Of which is the United Kingdom, which tries to achieve as much international uniformity as may be possible in the laws relating to patents and copyrights in designs. Its last meeting was held in Lisbon in 1958, and in October of that year a new Industrial Property Convention was agreed to. It makes a number of improvements in existing practices, but the only one which needs legislation here is the proposed extension from three months to six months in the period of grace which is allowed for the application for a renewal of a patent or copyright protection for a design.
At present a patent is normally granted for a period of 16 years, and it has to be renewed every year. Application for renewal normally has to be made before the end of the year but if, for some reason, the holder of the patent does not make it in time, he is allowed, on payment of an additional fee, to make an application during an extended period of three months. In the case of designs, copyright protection is usually given for a period of 15 years and a renewal has to be made not every year, but every five years, and in the same way there is a three months' period of grace.
The International Convention extends this period to six months, and in order that we may ratify the Convention, which it is to our advantage that we should do, it is necessary that we should amend our own Patents and Registered Designs Acts accordingly. This is done in subsection (1) of Clause 1 of the Bill. Subsections (2) and (3) of Clause 1 correct a mistake which was inadvertently 526 made in our own Registered Designs Act, but not in the Patents Act, of 1949. According to the wording of that Act, as it is now in the Statute Book, it appears that the fee for a renewal application for a design may be paid during the three months' period of grace, but that the application for renewal may not be made during that three months' period and must be made before the end of the period. As the fee is always paid by affixing a stamp on the application notice, this is clearly nonsensical, but it was not noticed by anybody until the present Bill came to be drafted. During the last ten years about 300 applications for renewal of licence have been made in good faith by applicants and granted in good faith by the Board of Trade without anybody being in the least aware that it was not strictly in accordance with the wording of the Act. To put this right, subsection (2) corrects the mistake, and subsection (3) validates those 300 applications which in practice have been granted by the Board of Trade.
I do not expect that any of your Lordships will have many criticisms or comments to make on the proposals contained in Clause 1 of the Bill, but I know that there are one or two of your Lordships who are a little concerned about the only other thing which the Bill does. In Clause 2 it proposes to repeal the First Schedule to the Patents Act, 1949, which specifies certain maximum fees for the registration and renewal of patents but not designs and not trade marks. This Schedule in the Act of 1949 which we are proposing to repeal is exactly the same as the Schedule in the Patents and Designs Act, 1883: it is one of those things which has simply been repeated in one Act after another until now. Although, of course, in 1884the value of money was more than four times as much as it is now— £l now would buy only what 4s. 6d. would buy in 1884—the fact is that it has been the policy of the Government that the expenses and receipts of the Patents Office should balance each other. The Patents Office is not intended to make either a profit or a loss, and fees have been fixed with the purpose of bringing in just enough revenue to cover expenses and no more. The real protection of the 527 inventor against being charged exorbitant fees is our policy of not charging more than is necessary to meet expenses.
The scale of fees fixed in 1884 was far higher than was necessary at that time to meet expenses, and in fact this scale of fees has never at any time had any relevance to the amount of fees which have actually been charged in practice and which have been fixed in relation to the expenses of the Patents Office. Even in 1947, when we had had a great deal of inflation since 1884, the fees charged by the Patents Office were still less than the maxima laid down in 1884. In that year, 1947, there was a Departmental Committee on Patents and Designs known as the Swan Committee which stated that they had come to the conclusionthat a schedule fixing maximum fees is of value as setting a limit to the fees charged unless varied by further legislation.The Swan Committee did not give any reason for expressing that opinion, but possibly the reason was simply that, since even in 1947 the fees which it was necessary to charge had not yet reached the maxima laid down in 1884, it did not seem necessary to bother about making any change at that time. But since 1947, unfortunately, there has been further inflation, and now for the first time in 76 years the fees which the Patents Office have to charge to cover their expenses have at last exceeded the maxima of 1884. There is now a deficit of, I think, £132,000 in the budget of the Patents Office.
This could be dealt with in two ways. You could introduce a new statutory limit to replace the Schedule which it is proposed here to repeal. If that were done, and if we were to allow the same kind of latitude as was allowed in 1884, the maxima should be about four times, or rather more than four times now, what they were then. But in fact we do not propose to make anything like so large an increase in the fees as that, and it seems rather unnecessary to have a new Schedule which again is much above the limit of what we actually propose to charge and which has never in fact had much relevance to what was done in practice. As I have said, it is done only in relation to patents; it is not done for fees charged for the registration of trade marks or designs. These are all controlled by Statutory Instruments.
528 Before I conclude, I should tell your Lordships what increases in fees the Patents Office propose to make under the Statutory Instrument, which will have to be laid before both Houses of Parliament if this Bill goes through in its present form. The present fees being charged are £1 on the application for a patent (that is the maximum); £4 on filing of complete specification, and £3 on the sealing of a patent—that is less than the maximum which was fixed at £5. Then renewal fees vary from £5 in the first year to £20 in the sixteenth year, and most of these are still below the set maxima. The only increases which it is proposed to make are in the first two items: the application fee of £1 is to be increased to £2, and the fee for the filing of complete specification will be raised from £4 to £8. The reason for putting all the increases on to the first two items is, of course, that nearly all the expense of the Patents Office is in connection with filing the initial application and the complete specification, and comparatively little is in connection with renewals.
I think that is obviously the more sensible method of procedure and, of course Parliamentary control will still be retained, because it is possible to pray against the Statutory Instrument which will have to be laid in order to prescribe the new fees. In fact, from your Lordships' point of view, it is the more effective control, because if your Lordships were to insert in the Bill an Amendment providing for a new statutory maximum charge and the other place disagreed, then the Bill could still go through, in spite of your Lordships' Amendment, in one Session. But if your Lordships choose to pray successfully against a Statutory Instrument, the Parliament Act does not apply and so the Statutory Instrument will have to be withdrawn. It will fail whether another place agrees with your Lordships or not. But I think from every point of view it is more sensible and more convenient for everybody concerned that the maximum fees for patents should be controlled by Statutory Instrument, as already in the case of trade marks and designs. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(The Earl of Dundee.)529
§ 2.53 p.m.
§ LORD SILKIN
My Lords, I am sure the whole House will welcome the first part of this Bill. We all favour closer international co-operation in all kinds of matters, and in this question of patents we are very glad that it has been found possible to come to an agreement which we are now about to implement. I must confess that I was puzzled about subsection (3) of Clause 1. Nobody reading that subsection could possibly have guessed that the intention was to put right an error which had been made in the 1949 Act. I certainly could not make out what was the object. This was an error which was not noticed by the Parliamentary draftsmen, by the House of Commons or by this House. So much for the scrutiny we give to Parliamentary measures! Nor, indeed, has it been noticed, I gather, by anybody since. If the noble Earl had chosen to "lie doggo" nothing would have happened, and it could have gone on indefinitely. However, it is only right that we should amend these measures and formally put right mistakes as we discover them.
If Clause 1 were all that was in the Bill I could have sat down at this stage and welcomed the measure. But the Government have taken advantage of this measure to introduce something which is entirely out of keeping with the purpose of the Bill. Clause 1 is for the purpose of ratifying an international Convention. Clause 2 is for the purpose of increasing fees. I should have thought it would be more appropriate, if the Government had thought it necessary to increase fees, to do it by way of a separate measure. After all, it is increasing the difficulties for people who want to know the law. If you want to know what are the appropriate fees, or under what measures fees are being increased, you have to look at a Bill which has for its purpose the ratifying of an international patents Convention. Surely, there would have been no difficulty about introducing a one-clause Bill for the express purpose of dealing with this question of increasing fees. I am not going to dispute that there may be a justification for an increase of fees. Nor would I argue that, if there were a justification, the particular fees the noble Earl has in mind are wrong. I have no means of judging; but certainly the figures proposed do not seem to me to be out of the way. But I do wish to pro- 530 test most strongly about the way in which it is proposed to do it.
The noble Earl referred to a Departmental Committee which was set up in 1947 for the express purpose of advising on what amendments to the patent laws were necessary. In paragraph 252 (I think it is) of their Report, to which he has referred, the Committee specifically deal with the Schedule to the previous Act—which deals with the question of fees—and said that they thought it was not necessary to amend it. The noble Earl agrees that that was the position at the time—that fees were, broadly speaking, covering the costs—and that if any charge was necessary it should be done by specific legislation, and not by way of Statutory Instrument. That advice was accepted in the 1949 Act, which provides that the fees shall be as set out in the Schedule to that Act, as they have been in all the previous Patent Acts.
The noble Earl now desires to get away from that procedure, and in future to do it by way of Statutory Instrument which would be laid on the Table. The noble Earl tried to hold out to us the bait that in fact that gave this House more rights than if the fees were included in an ordinary Patents Bill. I am not sure whether or not he is right. I shall have to get advice from constitutional lawyers on the matter. I am not sure whether we should have a right to say that if a specific Bill were introduced laying down the maximum fees which should be charged in future, this House would have a right to say that those maximum fees are too high or not. No doubt the noble Earl has sought advice on this subject before holding out this inducement to us, but I am inclined to doubt whether we should have a right to object to such a measure.
Whether that be so or not, the alternative which the noble Earl offers us is, in my view, quite objectionable and unacceptable. He is offering us the alternative of a Negative Resolution. It would have been more tempting if he had put before us the offer of a Statutory Instrument which required an Affirmative Resolution of each House. In that way, we should have has a definite opportunity of reviewing the matter. It would come before the House, and the noble Earl, or whoever was in charge of the measure, would have to submit it, 531 argue it and justify it; and the onus would be upon him; and the House would then be in a position either to approve the resolution or not. But what he is offering us is to lay the Statutory Instrument on the Table, and then it is for the initiative of any individual Member to raise the matter if his attention happens to be drawn to it—and it is the easiest thing in the world to miss one of these things. So many Papers are laid on the Table that it is quite likely that nobody would take the initiative or notice it, and it would go through without any discussion at all.
I should therefore like to suggest, on Clause 2, either that the noble Earl should take that clause back and introduce a specific one-clause measure for the purpose of putting forward revised fees, or alternatively, if he thinks that course is not desirable, should provide that instead of this Statutory Instrument being subject to a Negative Resolution it should be subject to an Affirmative one. Apart from that—and it is quite a serious matter—I would welcome the Bill.
§ 3.2 p.m.
§ LORD CAWLEY
My Lords, I intend to speak only on Clause 2 of this Bill, because I think a very important question of principle is raised by it. I ought to say at the outset that I am afraid my noble friend has been misled on the subject of the Schedule. There has been an alteration in the Schedule. In 1907 a sealing fee of £1 was introduced, and that fee was raised to the sum of £5 in 1949 by the Patents Act, 1949. In my opinion, Clause 2 of this Bill is a determined attempt on the part of the Executive to free itself for ever from Parliamentary control, or, I should say, effective Parliamentary control, in a matter in which such control is vital.
Parliament has shown great interest in the importance of patents to industry in this country during the last 75 years. It has also done its best to protect the small patentee, the small inventor, from exploitation by officialdom—that is to say, by officialdom generally. But this has not always been so and I think I may be permitted to refer this House to a short story by Charles Dickens, with which some of your Lordships may not be acquainted. The short story is called 532 A Poor Man's Tale of a Patent. The author puts these words into the man's mouth:I have been twenty years, off and on, completing an invention and perfecting it. I perfected it last Christmas Eve at ten o'clock at night. Me and my wife stood and let some tears fall over the model, when it was done and I brought her in to take a look at it.Your Lordships can see how keen Dickens was on Christmas Eve.
To cut a long story short, this poor man was advised by one William Butcher, who is described as a "Chartist Moderate" to patent it. He made a declaration: fees paid, 1 2s. 6d. Then he took it to the Home Office for the Home Secretary's signature: fees paid, £12s.6d. He took it to the Attorney-General's Chambers: fees paid, 4 guineas. He took it again to the Home Office, and they made a copy of the patent called a warrant: fees paid, £7 13s. 6d. The warrant was sent to Queen Victoria and signed by the Queen and signed by the Home Secretary a second time. It was taken to the Patent Office. A draft of the Queen's Bill and docket of the Bill were made: fees paid, £5 10s. 6d. two copies of the Bill were then engrossed, one for the Signet Office and one for the Privy Seal's Office: fees paid. £1 7s. 6d.; stamp duty, £3. The Queen's Bill was then engrossed: fee paid £1 Is.; stamp duty, £1 10s. The Queen's Bill was taken to the Attorney-General again and signed again: fees paid, £5. It went to the Home Secretary and to the Queen a second time: fees paid, £7 13s. 6d. The Queen's Bill was then taken to Somerset House, where a Signet Bill was made for the Lord Keeper of the Privy Seal: fees paid, £4 7s.; and a Privy Seal Bill was made for the Lord Chancellor: fees paid, £4 2s. The Privy Seal Bill was engrossed by the Clerk of the Patents: fees paid, £5 17s. 8d.; stamp duty for the patent, £30. Boxes for the patent were bought for 9s. 6d. Fees paid to the deputy to the Lord Chancellor's Purse Bearer, were £2 2s.; to the Clerk of Hanaper, £7 13s., and to the Deputy Clerk of Hanaper, 10s. Last but not least, fees paid to the Deputy Sealer and Deputy Chaffwax, 10s. 6d.
The famous author puts these words into the mouth of his characters:I went through 35 stages. I began with the Queen on the Throne, I ended with the Deputy Chaffwax. Note: I should like to see 533 the Deputy Chaffwax. Is it a man or what is it? How hard on me and how hard on the country, if there is any merit in me, to put me to all that expense before I can move a finger. If the laws of this country were as honest as they ought to be you would have to come to London, register an exact description and drawing of your invention, pay half a crown or so for doing it and therein and thereby have got your patent.The Act of 1883 provided in Section 24 that a Schedule should be placed in the Act fixing the fees for the obtaining and keeping in force of a patent, and this I would call "the Poor Inventor's Chanter". There was a curious subsection to Section 24 which was this:The Board of Trade may from time to time, if they think fit, with the consent of the Treasury reduce any of these fees.That is a very unusual thing nowadays. In the 1907 Act, as I said before, the Schedule was retained but a sealing fee was included. Then after the war, the Schedules having remained for all that time, a very distinguished Departmental Committee was appointed and studied the evidence carefully. The Committee was under Sir Kenneth Swan, Q.C., very well known in patent law, and the members included Mr. J. Mould, Q.C., Mr. Hubert Gill, and Sir Harold Saunders. They came to the unanimous recommendation that it was a good thing to perpetuate this Schedule, and they said also that the sealing fee ought to be increased. Both those recommendations were accepted and put into the 1949 Act, and it is now sought to sweep them on one side.
The point has been raised that in the case of trade marks and designs the fees are fixed by Statutory Instrument. I think there is a very radical difference, however. The maximum fees for a patent, if the Patent Office charged all the maximum fees in the Schedule, would be £200 to keep a patent alive for sixteen years. The fees for trade marks, to keep a trade mark alive for 21 years, not counting the payment of the 21-year renewal fee, would be only £10. So your Lordships will see that there is a very considerable difference between those figures.
I fully support my noble friend Lord Silkin in saying that, up till now, if a change in these fees was regarded as necessary, the Board of Trade had to justify any increase in the maximum. If these fees are now put into a Statutory 534 Instrument then the onus will pass to the objectors in this House to prove that the fees are unjustified, and I should have said that the objectors would be at a serious disadvantage. In my submission, this clause as it stands flouts the advice of the Swan Committee and also the terms of what I have called "the Poor Inventor's Charter". I feel that if Charles Dickens were here to-day he would see that the Deputy Chaffwax no longer twittered as he feathered his own nest, but that a number of black-coated crows from Government Departments were waiting in a ring around us to-day awaiting the moment when this check on the Executive would be removed. I ask that the Government will reconsider this matter. It is perfectly easy for them to put before us a new Schedule. I fully agree that it is time, certainly in some cases, that the fees were raised. I am not going to dispute that fact at all. But cannot we have a new Schedule?
One other point has arisen. I understand that the Chartered Institute of Patent Agents have agreed to the clause in its present form. I can only say that I do not think they realised, when they had it before them, the full implications and extent of the abdication from Parliamentary control that this clause involves.
§ 3.12 p.m.
§ LORD FERRIER
My Lords, because of what other noble Lords who have already spoken have said, all I need say on the Bill is that Clause 1 is wholly necessary and entirely desirable, and, like other noble Lords, I will confine my attention to Clause 2. I would declare an interest, as it were, in that I am not only the chairman of a group of chemical companies—I was informed only to-day that in 1959 one-sixth of the patents registered concerned chemical formulæ—but also one of the little men, the small inventors, to whom the noble Lord, Lord Cawley, referred. I have two little patents of my own. I should not have gone on with them had it not been that I can say from my own personal experience that Charles Dickens, in his short story, which, like so much of his writing, was obviously a tract aimed at somebody, was successful, because I had little trouble in registering two simple patents. I have not looked up my papers, but my recollection is that the overall cost of my patents, including the fees of the patent 535 agents who handled my patents most expertly and had properly drawn specifications prepared from rough sketches, amounted to £14 for each. My only horror is that, in referring to the Schedule in connection with this Act, I am not sure that I have not let my patents lapse. But, be that as it may, the experience that I have had is that, from the little man's point of view, it is not so difficult or so expensive.
I am no expert on Patent Law, but, as I have told your Lordships, I am concerned, and I would remind your Lordships that a patent is in a way a two-way traffic. The patentee, in return for a franchise limited by time and in that respect to some extent by his pocket, discloses for all the world to see what his idea or his discovery may be. He therefore makes a sacrifice in return for this franchise. If I speak somewhat slowly from now on, it is only because I am skipping the notes I had made because many of my points have already been dealt with by noble Lords who have already spoken. Here is an item which I feel should add to your Lordships' consideration. It concerns the First Schedule on Patent Regulations. The fees which are not covered by the Schedule to the Act, but which are covered by the maxima, extend to some 100 items. So it should be remembered that there are a large number of fees out with the Schedule which are already dealt with by regulation.
If Clause 2 is to form part of this Bill, then all the fees will be fixed by the Board of Trade by regulation. Here I would support what has already been said by the noble Lords, Lord Silkin and Lord Cawley: that it is all very well saying that they will be laid before Parliament, but I think I am correct in saying that even if one did notice a figure against which one wanted to pray, a Negative Resolution would have to refer to the whole regulation and not to any individual item. I make this point because it occurs to me that administratively this might be unsatisfactory, particularly when there are so many items. the great majority of which are probably just about right; but in case of dispute a Negative Resolution has to be moved affecting an entire regulation in order to correct one item which is at variance 536 with what Parliament might decide to be the proper figure.
Turning to the existing Schedule to the Act, one finds that there are 15 maxima figures, most of which in fact exceed the fees which are charged. The actual fees charged are less than the maxima except in five cases. It can be held that certainly two fees—namely, the application and the filing fees—are inadequate in view of present conditions and the present value of money; but if we were to accept a multiplication by four as the noble Earl indicated, it would put up an application for patent of £1; and the filing of the specification of £4, multiplied by four would give us a £20 fee. The noble Earl was good enough to tell us that it was the intention of the Board of Trade that the £1 should be increased to £2 and the £4 to £8. That amounts to £10 in fees alone in respect of any one patent. To my mind, that makes it too expensive from the small man's point of view.
If this Bill is passed in its present form, of course the fees will be raised in this way. But the noble Earl indicated that one problem was the cost of the Patent Office and arranging that the fees collected under patents should meet the total cost of the Office. In this respect I would refer the noble Earl to the renewal fees which, as I have said, are, as to many of them, well below the maxima provided under the Schedule. The renewal fees which begin to apply in respect of the fifth year of the patent, if the patent is operable and is converted into a commercial proposition, go up from £5 for the fifth year, and £6 for the sixth year, by stages to a £20 maximum in the fifteenth and sixteenth years. The fees rise in that way because it is fair to assume that if a patent has been renewed over so long a period it is making money; and although it is, in a measure, taxation, I put it to the noble Earl that it would be at that end of the scale that it would be proper to raise money to meet the increasing costs of the Patent Office.
Most of the other points I would have mentioned have been made by noble Lords who have already spoken, but I feel it only proper to reinforce what has been said: that Parliament, as I submit, 537 should see to it that nothing is done to inhibit inventiveness by making the cost of registration so high that the little man with an idea fails to register it on the grounds of expense. After all, ideas are rapidly becoming one of our most valuable exports. Industries with large research departments probably can look after themselves, by watching the submission of regulations or by absorbing increased fees into their costs. Not so the little man, with a little idea but perhaps a bright one. Your Lordships will realise that it would be imprudent for the little man to disclose his idea to a potential manufacturer, no matter how reputable, before he has protected it by a patent; and therefore the cost of the original patent must fall on the pocket of the inventor.
Certainly it will be considered quite wrong by many people that a matter of this kind which can affect profoundly the cost of obtaining or maintaining in force patents for inventions should be brought into a Bill of this kind. This point has been made already, but I would repeat in a mischievous way, by referring to the Hansard record of the Committee in the other place to which reference has already been made. In Column 720 of the Report for July 14, 1949, Mr. Manningham-Buller is reported as speaking as follows:I myself would deplore the acceptance of the Parliamentary Secretary's proposal that we should take from the Statute the code which now exists, leaving nothing in it dealing with these, and leaving the scale of fees to be determined from time to time by regulation.Mr. Manningham-Buller deplored that idea in those days, and I hope it may be possible that he deplores it still. This Bill is, in fact, an attempt to introduce by legislation the very point that Mr. Manningham-Buller then deplored. I suggest that if the Board of Trade can satisfy Parliament that all, or any, of the existing maxima are too low, the proper procedure is amendment, not cancellation, of the First Schedule to the Act.
In expressing the hope that the noble Earl who is to reply will indicate that he will look into this matter again before the Committee stage, may I suggest that Her Majesty's Government might consult a number of trade associations representing those industries that might be affected by this regulation? And as a small inventor myself, may I again speak 538 for the little man and urge the Government to re-examine the point which I have made and which has, in a measure, been developed by the previous speaker, namely, that fees—and particularly the early fees—should be kept as low as possible so as not to discourage British inventors from taking out protection for their ideas?
§ LORD JESSEL
My Lords, before the noble Earl the Minister replies may I ask the noble and learned. Viscount on the Woolsack for his advice on a point of order? Was the noble Lord who has just sat down in order in quoting verbatim from a speech in another place?
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, my view is, of course, no more authoritative than that of any other Member of your Lordships' House, but I understood that it was a quotation from a debate in another place eleven years ago, and, secondly, that the noble Lord quoted only enough of the speech to support the point he was making. I have always been brought up to believe that there is no breach in quoting between the two Houses provided that the quotation does not relate to the current Session.
§ LORD JESSEL
My Lords, I thank the noble and learned Viscount. I was not criticising but was only seeking information.
§ LORD FERRIER
My Lords, if I have erred, I apologise; but I am grateful for what has been said by the noble and learned Viscount.
§ 3.26 p.m.
§ THE EARL OF DUNDEE
My Lords, I should like to try to meet, first, the arguments that have just been put forward by my noble friend Lord Ferrier. He suggested that in order to get enough money to meet the expenses of the Patent Office, those renewal fees which are not up to the maximum should be raised, rather than the fee for application. I think it is right to mention that 70 per cent. of the cost of the Patent Office is already met by renewal fees, although practically all the expenses are occasioned not by the business of renewal but by the business of application and registration. The amount which we estimate it will be necessary to charge on 539 application, in order to meet the expenses of the Patent Office, will be £2, as against the present fee of £1. I should not have thought that a fee of £2 in these days was enough to deter any inventor from applying to have his patent registered.
With regard to the fee for complete specification, my noble friend spoke of the position of the man who wished to exploit his own invention. Surely if he had enough resources to exploit his own invention, a fee on specification of £8 would not be a very serious item. I believe that the usual practice of the small inventor of various things is that he does not try to use them himself but gets some company who can use them to take them up. In order to do that he has to pay, first of all, the application fee: but the specification fee is paid later by whoever is actually going to use the invention. I cannot feel that the new fees which are proposed to be charged will be any hardship or deterrent to the small inventor, whom everybody is very anxious to encourage. In fact, I believe that only about 5 per cent. of applications are from the small inventor; but that is no reason why we should not wish to encourage him.
There have been two major proposals put forward in regard to this Bill, by the noble Lord, Lord Silkin, and by my noble friend Lord Cawley, who was supported in his proposal by my noble friend Lord Ferrier. One was that instead of having a Statutory Instrument subject to Negative Resolution, we should make it subject to Affirmative Resolution, so that it will have to be discussed to see whether or not anybody objects to it. The other proposal was that we should substitute a new Schedule in this Bill for the Schedule to the 1949 Act, which we are repealing, and continue to have the statutory maxima for patent fees.
My Lords, I know that these suggestions of your Lordships are put forward with the intention of helping and improving the Bill. I will, of course, convey them to my right honourable friend and discuss with him your Lordships' arguments. I think it right to say that I have not been convinced by what your Lordships have said about the desirability of having a new Schedule 540 in place of the one which we are repealing. It seems to me that the present proviso to Section 99 introduces a great many difficulties without any very clear advantages. If these passages in the Act are intended to check increases in fees, we can do that only by enumerating in the Schedule maximum fees which are very little above those required by the Patent Office to break even in existing circumstances. Every slight increase necessitated by a rise in expenses would involve Parliament in new legislation, which would consume valuable time. If, on the other hand, the maxima of fees in the Schedule are so high as to avoid any necessity for these revisions, then it seems to me that the function of the Schedule as a limit for fee raising becomes largely ineffective. And I think that that has been the position since 1884. I do not think anybody has paid much attention to the Schedule limiting fees. What has been done is simply to calculate the smallest fee which is necessary to meet the expenses of the Patent Office.
With regard to the proposal to have an Affirmative Resolution rather than the Negative Resolution procedure, I think it would perhaps be rather anomalous to have Affirmative Resolutions on patent fees alone. If all fees chargeable for administrative functions had to be debated in your Lordships' House, a great deal of Parliamentary time would be taken up. But I will, of course, consider what the noble Lord, Lord Silkin, has said, and also what was said by my noble friend Lord Cawley.
§ LORD SILKIN
My Lords, I just want to make the point that of course we can always save time by preventing discussion in your Lordships' House. But that is not our main function concerning legislation. The main function is to enable us to discuss things that ought to be discussed.
§ THE EARL OF DUNDEE
With great respect to the noble Lord, we are not preventing discussion at all. Anybody can raise a discussion on a Statutory Instrument subject to the Negative Resolution procedure and can pray against it. The position in regard to an Affirmative Resolution is that we are compelling people to discuss it, whether they want to or not. Of course, that 541 may sometimes be a good thing, but perhaps there would be rather a lot of them.
My Lords, I was just going to conclude by mentioning that my noble friend Lord Ferrier asked that we should discuss this matter with interested commercial bodies. We have already done so, and the organisations concerned have not offered any objection to the substitution of fees fixed by Statutory Instruments rather than a Schedule in an Act of Parliament. My noble friend Lord Cawley, I think, said that, although these bodies have agreed to the proposed change, they have done so under some misapprehension, and if they were consulted again they might take a different view. I will certainly make inquiries with regard to that point.
§ LORD CAWLEY
My Lords, I think I ought to say that it was the Chartered Institute of Patent Agents alone to whom I referred.
§ LORD CHORLEY
My Lords, may I, before the noble Earl resumes his seat, put this question to him? Have the Government considered whether it is really essential that the Patents Office should pay its way? I did not hear the noble Earl's opening remarks and it may be that he dealt with this matter. However, it has always seemed to me that this was one of the cases where there is a good deal of argument for the point of view that a patent is often a very valuable invention which may come from the work of a poorish man—a point made by the noble Lord, Lord Ferrier. These patents do not redound only to the wealth of the men who invent them; they are of national value, and some of the greatest British industrial and commercial exploits have depended upon them. It seems to me that it is a narrow point of view to lay it down as the law of the Medes and Persians that the cost of the Patents Office must always be paid for out of these fees. Would it not be a good thing to look at it from a wider point of view and perhaps decide that the value of these patents to the country as a whole is so great that we ought not to take the risk of preventing inventions from being registered by a niggling attitude of this kind?
§ THE EARL OF DUNDEE
My Lords, there are, I think, some countries which subsidise patents and pay the expenses of registration. The fact that we should balance our expenses exactly by raising enough fees to meet them is not a law of the Medes and Persians, but it happens to have been the policy of Great Britain for some time. It is rather a wider question whether we should abandon that policy and start a new policy of subsidising patents. The fees necessary to be paid are a very small matter. I dare say there is a great deal to be said for and against subsidisation of patents by the Exchequer. But the fact is that we try to balance the expenses by the fees we collect, and our legislation has been based on that principle.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.