§ 3.44 p.m.
§ Order of the Day for the House to be put into Committee read.
§ THE MINISTER WITHOUT PORTFOLIO (THE EARL OF DUNDEE)
My Lords, I beg to move that this House do now resolve itself into Committee on this Bill. In doing so, I have to correct a statement which I made to your Lordships on Second Reading, towards the end of my speech, in a purely hypothetical and extremely trivial context. I mentioned, in passing, that if another place were to disagree with some hypothetical Amendment which your Lordships might make to the Bill, the other place might then pass the Bill under the Parliament Act without the Amendment. I have since learned what I did not know then: that the Parliament Act does not apply to Bills introduced in your Lordships' House. What would happen in the event of disagreement (which of course will not happen) would be that the Bill would have to be dropped at the end of the Session. However, it could then be re-introduced in the next Session in another place, and then the Parliament Act would apply: so my statement would then become correct, after an interval of one Session. I beg to move.
§ Moved, That the House do now resolve itself into Committee.—(The Earl of Dundee.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 1 agreed to.
§ Clause 2:
§ Patent fees
§ 2. Section ninety-nine of the Patents Act, 1949, shall apply to the fees payable in respect of an application for a patent, the filing of a complete specification. and the sealing or renewal of a patent as it applies to fees payable in respect of other matters relating to patents, and accordingly the proviso to that section and the First Schedule to that Act (which specify certain maxima for fees) are hereby repealed.1022
§ LORD DOUGLAS OF BARLOCH moved to leave out Clause 2 and insert instead:
§ ("2. The First Schedule (Maximum Fees) to the Patents Act, 1949, shall be amended by omitting the words
|'On application for patent||1||0||0|
|On filing of complete specification||4||0||0'").|
§ The noble Lord said: I beg to move the Amendment standing in my name on the Order Paper. This is the only clause in the Bill to which any objection was taken upon Second Reading, and had I not been unavoidably prevented from being present I should have joined with those who criticised it.
§ Under the existing law as contained in the Patents Act, 1949, power is given to the Board of Trade, with the assent of the Treasury, to make regulations with regard to the fees to be charged in the Patent Office for matters transacted there, but that power is subject to a limitation that any such order shall not increase certain fees specified in the Schedule to the Statute beyond the amount there stated. The clause we are now considering proposes to abolish that limitation and, therefore, to give the Board of Trade unlimited power to alter the whole of the fees which may be charged in the Patent Office for business transacted there. The fees which are at present subject to a statutory maximum are: the fee on applying for a patent, the fee on filing a complete specification, the fee on the letters patent themselves and the annual fees which have to be paid for renewal in order to keep the letters patent in force, Now these fees are of fundamental importance.
§ The noble Earl who is in charge of the Bill said on Second Reading that the object in view was to make the expenditure and the revenue of the Patent Office balance: that it was a principle that the Patent Office should be self-supporting. As taxpayers, no doubt most of us will be attracted at first sight by that doctrine but there are some other considerations which ought to be borne in mind. The Patent Office exists in order to perform a public function of very great importance. It exists not merely for the sake of encouraging inventors by giving them a temporary monopoly of the subject-matter of their invention. It exists also for the purpose of ensuring that the nature of those inventions shall 1023 be communicated to the public, because no inventor can get the statutory monopoly granted by letters patent unless he discloses, fully and sufficiently, the nature of his invention. That disclosure helps to encourage technological progress, and to encourage other inventions, whereas if this system did not exist and people were not entitled to patents for their inventions, naturally inventions would be concealed so far as possible and progress in technological matters would be impeded.
§ Consequently, the Patent Office exists not merely for the benefit of inventors themselves but also for the benefit of the general public and for the encouragement of manufacture and invention generally. On those grounds I do not accept the doctrine that it is essential that the revenue and expenditure of the Patent Office should necessarily be brought into balance. But even if it be granted that that should be done, I still do not accept the proposition that the statutory limit upon the amount of fees which may be made payable should be entirely removed, as this Bill provides. We must remember that, in effect, this constitutes a bargain, or at any rate an undertaking, which is held out to inventors, not only in this country but in other countries as well, because foreign inventors can, and do, take out patents in this country, to the complete advantage of this country. At present they have an assurance that the fees which will be charged—and I am referring particularly to the fees for the renewal of a patent payable year by year—will not exceed the sums which are at present stated in the Statute. If this clause is passed as it stands, it will mean that the expectations of people who have taken out patents can be defeated, and that they can find that the fees which will be charged to them for renewals in the future, after their existing patents have been granted on the faith of the Statute as it stands, can be increased—and, indeed, might be considerably increased because there will be no limit whatsoever.
§ I understand that in another place the Minister stated that the only step which it was intended to take was to increase the first two of the fees which I have mentioned—namely, those upon filing an 1024 application for a patent and those upon filing the complete specification, disclosing the nature of the invention. Therefore, in the Amendment which I am moving, taking that declaration as its basis, I suggest that the only alteration that should be made is to remove the limit upon those two fees, and that the Act should otherwise be left as it stands at the present moment. I venture to suggest that that is only right and fair. After people have obtained their letters patent they should not be threatened with the prospect of an order being made by the Board of Trade altering the fees which have to be paid year by year for its renewal. I should feel still happier if the Amendment which is in the name of my noble friends, Lord Silkin and Lord Chorley, could be adopted—namely, to leave this clause out of the Bill entirely; but failing that, I think that what I am suggesting is the maximum which ought to be done. I beg to move.
Leave out Clause 2 and insert—
§ ("2. The First Schedule (Maximum Fees) to the Patents Act, 949, shall be amended by omitting the words
|'On application for patent||1||0||0|
|On filing of complete specification||4||0||0'")|
§ —(Lord Douglas of Barloch.)
§ LORD SILKIN
I wonder whether it would be for the convenience of the Committee if we discussed the three Amendments that are on the Paper together.
§ THE EARL OF DUNDEE
I was certainly going to suggest that the second two should be taken together. I thought that might be more to the convenience of your Lordships, because they seem to raise entirely the same points, whereas the present Amendment draws a distinction between the two classes of fees under the old Schedule. Could I reply to this Amendment now, and then could we take the other two together? I think that would be best.
§ LORD CAWLEY
I do not think I could possibly support this Amendment, because these two fees are the two fees which affect the small inventor. The renewal fees become payable only at the fifth year and onwards, and I could not accept an Amendment which would allow the Board of Trade carte blanche to raise 1025 the fees affecting the small inventors but restrict the Board to a maximum in those fees which affect the inventor who has "made a go" of his invention and is keeping it alive for the remainder of his life.
§ THE EARL OF DUNDEE
My noble friend behind me has relieved me of part of the task of answering the noble Lord's Amendment by making the point which I was going to make in reply. The effect of the noble Lord's Amendment would be to remove statutory protection against the raising of the application fee and the raising of the filing fee on specification, but to leave statutory protection for the sealing fee and all the renewal fees. As it happens, that would have the effect of enabling the Government to do exactly what we are proposing to do. Because, as I told your Lordships on Second Reading, we propose to raise the application fee to £2 and the specification fee to £8, and to leave all the other fees as they are, although some of them, in fact most of them, are at present below the old statutory limit. The sealing fee is only £3 whereas the limit is £5; and of the twelve annual renewal fees, nine out of the twelve are actually below the limit fixed in 1884.
But in spite of this I would suggest respectfully to the noble Lord that he is putting the emphasis in the wrong place, because I think the main purpose of having in mind a statutory limit on fees is not to protect renewal fees but to protect the inventor, on getting his patent, against undue trouble and expense. Therefore, although it would fit in with what I told your Lordships the Government were proposing to do about the fees, I would suggest to the noble Lord that he should not press his Amendment.
§ LORD DOUGLAS OF BARLOCH
My Lords, in view of what the noble Lord has said, I am not disposed to press my Amendment. I gathered that he sympathised with the noble Lord opposite who objected to arty increase in the fees on application, although his colleague in another place is proposing to more than double them. Therefore I should feel a great deal more happy if the Amendment in the name of my noble friend Lord Silkin were carried, and consequently propose to withdraw this one.
§ 4.0 p.m.
§ LORD SILKIN
Before the noble Lord actually withdraws his Amendment, may I say that it seems to me that it would be logical to discuss Amendment No. 3 before we discuss this one. If, by some chance, the Committee were to agree to leave out this clause, then, of course, any question of amending it would not arise. I presume that it is in accordance with precedent that an Amendment to leave out the clause comes last, after all the Amendments have been considered, but, with great respect, it seems quite illogical. It seems to me that we ought to decide first of all whether the clause stands part of the Bill or not, and then, having disposed of that question, we can begin to think about Amendments. Therefore I think it might be convenient if I said a word at this stage on the general question of whether we should allow this clause to become part of the Bill or not, while, of course, I will move my Amendment when it is called.
§ THE EARL OF DUNDEE
I am most ready to agree to whatever is most convenient to your Lordships. I am not responsible for the order in which the Amendments are put on the Marshalled List and do not care how your Lordships choose to discuss them. I should be delighted to fall in with any arrangement. It seems to me that if the noble Lord wishes to discuss this Amendment together with his, then we should discuss the Amendment of the noble Lord, Lord Cawley, at the same time, and not give leave for this Amendment to be withdrawn. If that would be most convenient and aceptable to your Lordships, I should be very willing to agree.
§ LORD SILKIN
We are really discussing the same thing in different ways. I do not want to detain the Committee very long, because I said what I wanted to say on Second Reading, but I think that here we have a Bill which has for its primary purpose the ratification of the Convention which was agreed to in Lisbon. But for that Convention this Bill would never have been introduced. So we have Clause 1 ratifying the Convention. I am glad that we are carrying out this task. But then the Government tack on to that something which has nothing to do with the ratification of the Convention—a clause altering the fees which have been in existence since the 1027 1880's. If the Government want to do that, why cannot they introduce a separate Bill, which we can then discuss on its merits, without tacking it on to something to which it bears no relation at all?
Speaking from the point of view of a practitioner, I would point out that if a practitioner wants to look at the question of the ratification of the Lisbon Agreement, he would not think of looking in a Bill called the Patents and Designs (Renewals, Extensions and Fees) Bill. That seems to me to be quite remote. I should have thought that the proper thing was to have a Bill which would express in its Title what it was intended for and, even side by side with that Bill, a separate Bill of this kind. After all, a Bill ratifying the Lisbon Agreement could have gone through "on the nod"; nobody would have said a word about it except to bless it. It is Clause 2 which raises the controversy.
Having said that I hope the Government may think again about tacking this clause on to a wholly inappropriate Bill, I hope that if I say a word on its merits that will not be regarded in any sense as weakening my contention that Clause 2 ought not to be in the Bill at all. If the Government, in their wisdom or lack of wisdom, decide that it has to be in the Bill, then I think that the Amendment of the noble Lord, Lord Cawley, ought to be accepted. If the Government think that they must make provision in this Bill for the amending of the fees and that in future it should be done by a regulation of the Board of Trade, which will enable them from time to time to alter the fees in accordance with the circumstances of the time, then that should be done in such a way that your Lordships can express their view. The onus should be on the Government and they should do it by means of a specific Resolution of each House of Parliament, so that the matter would come before your Lordships and be dealt with in a straightforward way and not left to the chance of a Negative Resolution.
I agree with my noble friend Lord Douglas of Barloch that the question of fees in respect of patents is a highly important one, not merely from the point of view of the inventor but also from the point of view of the general public. 1028 I am inclined to agree with him that the balancing of expenditure by receipts should not necessarily be taken for granted. On the other hand, I feel that the onus of proof should be on those who say that they should not balance and that there should be some contribution from the Exchequer. Unless a case can clearly be made out that this is a service and ought to be subsidised, I should have thought that the fees should balance; but I should be very willing to listen to a case that it would be in the public interest to have some kind of contribution from the Exchequer.
Coming back to my first point, I would add that there is a good deal in having legislation which is appropriate, which is inserted in the right kind of Bill and which specifies in its Title what it is intended to do. I would ask the Government whether they would not seriously take back this clause and put what they want to do in another Bill. If they do, then would ask them to make any regulations they want to provide for subject to the conditions set out in the Amendment of the noble Lord, Lord Cawley—that is, subject to an Affirmative Resolution.
§ LORD CAWLEY
The evil which arises from this clause as it stands is not a present evil; it is an evil in the future. I am certain that the Board of Trade are acting perfectly properly and bona fide by asking for some increase in fees, but one must consider the future and the fact that (as I stated on Second Reading) there is a ring of black crows waiting to hop down and make this a source of revenue. I was not then referring to the Board of Trade; I was referring to the Treasury in the future. If the Negative Resolution procedure is adopted, it would be only too easy for the Treasury to prevail upon the Board of Trade to increase fees in order to pay them a dividend. I think that that would be very undesirable. I hope that never in another place in future will one of the Treasury Ministers get up and say, with reference to raising the fees in the Patent Office, that it is the duty of inventors to shoulder some of the burden of general taxation. We do not want a Patents Funds which can be raided in the same manner as the Road Fund has been raided in the past. If we have an Order which is subject only to Negative 1029 Resolution, that is what I feel may happen in future. It may not, but the road is open and ready for that to occur.
My Amendment is a compromise and, as I think, a good compromise. The objection to alteration of the maximum fees by Statute is fairly obvious. It requires Parliamentary time; it requires three Readings—Committee stage, Report stage and so on—in each House, and I can see the objection. However, I can see little objection to making these changes in the maximum fees subject to a Special Order. Special Orders are not very common. I am on the Special Orders Committee and we are not overworked at present. Your Lordships have seen this afternoon what happens when a Special Order does come before this House and is debated. I think it is a healthy thing that any raising of the patent fees should be debated by the House. I feel certain that the Special Orders Committee—of course, one cannot commit them—if they saw that an Order unnecessarily raising the maximum for patent fees was going to be placed before Parliament, would exercise their powers to warn Parliament that particular attention ought to be drawn to the Order. Therefore, I feel that my Amendment would meet all the conditions that are necessary to make this Bi11 a suitable Bill to pass.
§ LORD CHORLEY
I do not wish to repeat the arguments which have been so cogently put before your Lordships this afternoon by my noble friend Lord Silkin, but I was glad to add my name to the Amendment which stands in his name because I was so dissatisfied with the answer the noble Earl gave to my suggestion that the time had now come in the industrial history of this country when we should abolish altogether these fees in connection with patents. I was glad that my noble friend Lord Douglas of Barloch adverted to this suggestion, in a rather wider and perhaps a more cogent way than I was able to do in my intervention. The noble Earl, Lord Dundee, took up a typically conservative attitude, if I may say so, without necessarily a capital "C"—namely, that we had done this ever since we started, and that was a very good reason for going on with it. That, in my view, is the sort of attitude which is going to lead to this 1030 country's falling behind in the industrial race.
The situation is quite different in regard to this country, as an industrial competing country, from that when the original Patents Act was passed in the last century. We were then well ahead of all our competitors, and really there was no particular point in encouraging inventors in connection with our overseas exports by remitting fees in connection with patent specifications and that sort of thing. But we are now—although we may not quite realise it at the moment—on the point of having to fight for our lives, and we just cannot afford to take this ostrich-in-the-sand attitude in regard to matters of this kind.
The small inventor, in particular, is still well worth encouraging. I know there is an idea about that nowadays all inventions require team work; that that team work is supplied by the great industrial and commercial corporations, who can put up the money quite easily, and a few pounds here or there will not make any difference to them. That is no doubt perfectly true. But when one thinks of inventors like Sir Frank Whittle, working month by month in a small garage, with perhaps a boy to help, and producing one of the great inventions of the century, surely it is obvious that the small private inventor still has a great contribution to make. I think there is no country in the world which produces that type of individual better than this country. I am not the sort of person who continuously, on every occasion, says that our country is better than all other countries in the world—that is a narrow and absurd attitude—but there are certain ways in which I think our own people have shown in the past that they have a particular advantage. This ability to bring to bear and combine both intellectual calibre and practical experience has been a peculiarly English excellence and Sir Frank Whittle affords a good example of the sort of way in which it has been done. And, of course, it has been done down the ages.
It is in this way that we can help. I object to its being regarded as a subsidisation of the inventor. These inventors are fulfilling a national purpose of the highest quality and of the greatest advantage to this nation, and it is really up to us to encourage them in every way 1031 we can. We are now, through the D.S.I.R. and in other ways, giving a great deal of help. It seems to me rather absurd to provide help in those ways and at the same time to withdraw it in a niggling way by insistence on fees of this kind. Therefore I should like to see this clause dropped out of the Bill in order that the matter can be looked at again from the point of view of giving greater assistance to inventors, and possibly with the object of removing all these fees, which at the present time to a certain degree press upon the smaller inventor.
§ 4.17 p.m.
§ THE EARL OF SWINTON
I should like to add a word or two, having as President of the Board of Trade had to administer the Patents Office for a good many years. I think we ought to have a little sense of proportion in this matter. In all the years I was President of the Board of Trade I never heard any corn-plaint that inventions were handicapped because the man who took out a patent had to pay a fee. I should think there is something to be said for keeping those fees under the control of Parliament; they have hitherto been laid down by Statute, and that, I feel, is not a bad thing. But I think the general experience of inventors (Lord Silkin's practice is more recent than mine) would be that the fees which are paid, not unreasonably, to patent agents, whom every inventor has to employ to go and search the whole of the register to see whether there are patents and that the application for the patent and the specification is properly drawn up—and they are very able and necessary people—amount to a good deal more than the fee paid to the Patent Office.
Generally, I do not think we ought to have an indiscriminate reduction of fees —that is not a good way of giving help to inventors. I believe that the way the Government are giving help to inventors in desirable cases at the present time is a much better way. If you just abolished the fees, or failed to raise them to what in the costs of to-day would be a reasonably economic level, you would, believe, be wasting a great deal of the taxpayers' money. That would give it to the just and the unjust; it would give it to applicants for patents who were poor and who were rich; it would give it whether the patent applied for was a 1032 valuable patent or something of no great value. We had better have a little sense of proportion in this matter, if I may respectfully say so to the noble Lord, Lord Chorley, and continue to charge our fees.
§ 4.20 p.m.
§ LORD FERRIER
Perhaps it would suit your Lordships if I were to refer to what the noble Earl has just said in his reference to fees, based, as I told your Lordships in the debate on Second Reading, on experience. The noble Earl is correct in saying that a sense of balance is necessary because a patent agent's fees may exceed the fee for registration. On the other hand, that depends largely upon what the patent agent has to do: the extent of the searches he has to carry out, the necessity for extra drawings to fit in with requirements of the Board of Trade, and the like. Nevertheless, I feel that, whatever the proportion may be between the fees and the cost of the patent agents, it is important that the overall cost should be kept at the absolute minimum. I agree with the noble Lord, Lord Chorley, that ideas are one of our most valuable exports to-day, and that everything possible should be done to encourage the registration of ideas which may be national assets if they can be produced in patent form and protected throughout the world, all of which costs additional money.
But in expressing the view that I should also like to see Clause 2 removed from this Bill altogether, I feel that it is not necessary to go over the points that have been made by noble Lords. I would, however, emphasise one point that has not been made during this debate in Committee as strongly as it was in Second Reading—namely, that it is the duty upon Parliament to keep an eye upon what Lord Hewart described as "the new despotism". It is so easy to recognise small matters of this sort as being minor engagements in what can never be a battle on a broad front but which, though little enough in themselves, when put together build up an increasing power with which Parliament is not able to interfere; or, if able to interfere, has only the cumbrous method of objecting to the regulations in toto under the Negative Resolution procedure.
With those sentiments, I would express my support for the idea that the whole 1033 clause should be taken out. I think that, if possible, the Government should con-skier another small Bill to deal with the question of the fees, though it is just possible that there are one or two i's to be dotted and t's to be crossed in patent affairs, and that provisions to this end might be included. On the other hand, if the Government find it impossible to do what I and other noble Lords consider to be right, which is to cut this clause out of the Bill the Title is definitely one to accord with an International Convention—then I would support the via media suggested by the noble Lord, Lord Cawley. But I could not support the Amendment proposed by the noble Lord, Lord Douglas of Barloch, because, as the noble Earl who is to reply said, it seems to be on a different level from the other two Amendments, which I support in that order.
THE CHAIRMAN OF COMMITTEES
Does the noble Lord, Lord Douglas of Barloch, wish to withdraw his Amendment?
§ LORD DOUGLAS OF BARLOCH
Not at this stage. I should like to hear what the noble Earl has to say on this discussion.
§ 4.25 p.m.
§ THE EARL OF DUNDEE
I am glad to have had this arrangement which has enabled me to hear what everybody has to say before replying. The noble Lord, Lord Silkin, is, of course, quite right in saying that Clauses 1 and 2 of this Bill do different things. But, after all, the different things which they do are both about patents. I would say that it seems a little unnecessary to have two different Bills about the same subject because there are two different aspects of the legislation you want to enact. It would take up much more Parliamentary time and, as everybody is entirely agreed to let Clause 1 go through on the nod, surely this could be regarded as a second Bill introducing Clause 2.
Most of your Lordships, with the exception of the noble Lord, Lord Chorley, have been inclined to agree that it is not a serious deterrent to inventors that some fee should be charged for patents. I think that every country except the United States and Canada does the same as we do—that is, try to balance the expenses of the Patent Office by the fees; and I believe that 1034 Canada is now changing her policy and is going to charge fees. As the noble Earl, Lord Swinton, said, the theme that these small payments may be a serious deterrent to inventions can be greatly exaggerated. I should like to remind your Lordships very briefly of what I said on the Second Reading in justifying Clause 2. The maximum fees which are laid down, with one small exception, which my noble friend Lord Cawley pointed out, have been the same since 1884. No one has paid much attention to these maximum fees in deciding how much should actually be charged, because the criterion of the fees has been not what is the amount or even the maximum laid down by Act of Parliament, but how much the Board of Trade need to collect in order to meet their expenses. Since the maximum scales laid down 76 years ago were far greater than was necessary to do that, the Board of Trade have never found it necessary to charge as much as the maximum fees. Even in future we are still proposing to charge less than the maximum in the case of the sealing fee and most of the renewal fees.
With the change in the value of money, the maximum fees for application and for filing a specification have, for the first time since 1884, become inadequate to meet expenses. What we felt was that if we had chosen to have a new statutory Schedule for the whole lot, in order to allow flexibility following the example of 1884, it would have had to be much higher than was necessary and would not have afforded any protection; whereas if we were to have a scale of fees which were just enough that might have involved continual new legislation. We felt, therefore, that the right way to deal with the matter was by a statutory instrument which was subject to a Prayer—that is, to the Negative Resolution procedure in both Houses of Parliament. I do not feel that in modern times there could be much danger that the Board of Trade would seek to charge exhorbitant fees; and if they did do so, do not think there is much chance that they would get away with it, because in a matter of this kind, even if a Member of Parliament did not happen to observe the statutory instrument, somebody would call his attention to it. There is no possibility of anything like the analogy which Lord Cawley gave of 1035 the Road Fund, because it is not proposed to accumulate any surplus. The policy of the Board of Trade is to charge just as much as will meet their expenses, and no more.
But I was impressed on Second Reading by those vestigial memories, which have survived from the days of the Deputy Chaffwax, which were so forcefully presented by your Lordships. I do not think I could agree to putting any statutory limitation on the renewal fees or on the specification and sealing fees. I think that would be unnecessary. I think they are far more appropriately and more flexibly dealt with by a statutory instrument. It seems to me that your Lordships' main concern, both this afternoon and on Second Reading, has been for the small impecunious inventor who, in order to get his patent and be entitled to find someone who will exploit his invention, must first pay this application fee.
Looking at the pathetic the which my noble friend Lord Cawley quoted from Dickens of the man who, before he could get even that length, had to go through 35 stages, interview 35 people, from the Queen on her Throne to the Deputy Chaffwax, which took so many years, it reminded me rather of what I had to do in recovering my Peerage. All this had to be done in order to get to the first stage; that is, to get the patent registered and the right to ask somebody to take it up. I think perhaps that there may be still some psychological fear that the circumstances which prevailed in the time of the Deputy Chaffwax might recur, although I do not myself see them recurring in the twentieth century. I have no doubt that was what the Act of 1883 was designed to stop.
If it would meet your Lordships' wishes I should be prepared to undertake to introduce a new Amendment on the Third Reading of this Bill which would limit by Statute this application fee to a sum of £2. I would just remind your Lordships that, if you allow for changes in the value of money, £2 now is equal to 9s. in 1884, when the fee was fixed at £1; so that our new fee of £2 will, in terms of money, be less than half the maximum imposed in 1884. Or, if you prefer to put it the other way round, 1036 a fee of £1 in 1884, allowing for the change in the value of money, could be used to justify a fee of £4 8s. now, instead of our actual proposal of £2. I think the course I suggest would perhaps be more satisfactory to my noble friend Lord Cawley than an Affirmative Resolution. He mentioned that an Affirmative Resolution would take up some time. This, if it had to be changed, would take up even more time, because a new Act of Parliament would have to be brought in to alter this new statutory limitation. I think that it would give some psychological reassurance, perhaps, to the small inventor, whom all your Lordships, and certainly the Government, are most anxious to encourage, and I hope your Lordships will agree to accept the proposal which I am putting before you.
§ LORD SILKIN
I hope the noble Earl will look at this again. What he is suggesting is all very well, but he is rather assuming that all small inventors are impecunious. He referred to small impecunious inventors. They are not all impecunious, and I do not think the bait he is holding out is all that attractive. On the assumption that Clause 2 remains in the Bill—and I shall have one short word to say about that later—I think that what most of us want is Parliamentary control over these fees. We want them to come before Parliament for Parliament to judge whether any Amendment is reasonable or not. I cannot see what possible objection there can be to that. The question of Parliamentary control is one which appeals to every Member of this Committee and the House.
If the noble Earl will seriously consider putting something in the Bill or, better still, accepting the Amendment of the noble Lord, Lord Cawley, which I think is drafted in the correct terms for that purpose, so that whenever there is a change of fee (we do not want to restrict Parliament, and we do not want a new Act of Parliament, if it becomes necessary to increase fees, we quite see that), whether it is an increase or reduction, if such a thing is conceivable, it will come before the House, I think that most of us will be satisfied. I feel that in asking for that we are asking for something that is perfectly reasonable. I would ask the noble Earl to have 1037 another look at it. Furthermore, he did refer to doing this on the Third Reading, but there is such a thing as Report stage.
§ THE EARL OF DUNDEE
With respect to the noble Lord, there is no Report stage if there are no Amendments in Committee.
§ LORD SILKIN
With respect to the noble Earl, there is. The procedure was changed not long ago; and there is a Report stage, although it can be dispensed with. I hope that my version of the Standing Orders is correct. I gather that is so. There is a Report stage.
§ THE EARL OF DUNDEE
To be quite accurate, there would be a Report stage if I did not move "That this Report be now received" at the end of the Committee. Of course if the noble Lord would prefer me not to do that, and would prefer to have a separate Report stage later, that will be a matter to be discussed through the usual channels. I should have thought that, as a matter of procedure, if there were no further Amendments it would be more convenient that I should introduce my Amendment on Third Reading. But I did not mean to lay down that there could not be a Report stage if your Lordships desired one.
§ LORD SILKIN
If the noble Earl is going to consider favourably the Amendment that I have in mind, then I do not mind whether he does it on Report stage or Third Reading; but if the reply is going to be a negative one, I think we should have the usual Report stage and Third Reading. I hope that he will at least say that he will give the matter further consideration, because that, I believe, is the feeling of those noble Lords who have taken part in the discussion and have been interested in this Bill.
§ THE EARL OF DUNDEE
I assure the noble Lord that I have given this matter very profound consideration between Second Reading and now, and I have, I think, both to-day and on Second Reading, given the fullest answers which I can give to what the noble Lord has just said. I do not feel that the method of statutory instrument, which does allow a discussion when any variation is made in the fees, is taking away reason- 1038 able Parliamentary control. What I am suggesting is that, in addition to this Parliamentary control by means of a Prayer against the Order, a statutory limitation for the application fee should be inserted. I do not think it would do any harm, although I would not admit that it is really necessary. I am suggesting that it should be inserted in order to satisfy the concern of those of your Lordships who have so strongly expressed your views both this afternoon and on Second Reading.
It is not entirely a question of inventors being impecunious. I think that the first of these fees is really the one about which your Lordships have been principally concerned, and it is the only one in regard to which I have honestly felt that I should be justified in making any departure from what we had intended to do on Second Reading. I hope that your Lordships will be agreeable to this course and will accept the proposal I am making, which I have not made on the spur of the moment but is the result of most careful and thorough consideration of all the merits of the case.
§ LORD CONESFORD
May I say a few words in support of what my noble friend the Minister has just said? Subject to anything that my noble friend Lord Cawley may say, I should have thought that the Minister's present offer was rather better than Lord Cawley's Amendment taken alone without the proposed statutory safeguard. I think one can exaggerate the difference between an Affirmative and a Negative Resolution, though there is one important difference—more important in another place than it is here—that for an Affirmative Resolution the Government of the day have to find time. There is some difference as regards finding time. I think that I am right about that; certainly there used to be. But I should have thought that with a Negative Resolution available on the other matters, and the statutory safeguard indicated by the Minister on this one matter, the point that I think Lord Cawley has in mind will be rather better safeguarded than it would be but for the Minister's last proposal.
§ LORD SILKIN
I do not want to weary the Committee but there is a big difference between a Negative and an 1039 Affirmative Resolution, as those who have been in another place well know. A Negative Resolution is taken at some unearthly hour when everybody is most anxious to go home, and in practice it does not give anyone who prays a reasonable opportunity. An Affirmative Resolution has to come before the House on a Government Motion, and not on the Motion of the person who prays, and it gets proper consideration. In an important matter of this kind I should have thought it would be desirable that the Government should, where they want to change the basis of fees, find time to have the matter properly discussed.
§ THE EARL OF DUNDEE
No; if my proposal is accepted vie cannot change the application fee without Act of Parliament.
§ LORD SILKIN
I am referring to the remaining fees, which of course will be subject to a Negative Resolution. I am suggesting that if Parliament wants to alter the remaining fees they should come before the House. I gladly accept the offer of the noble Earl. I do not want to appear ungrateful for small mercies. Of course I accept that. But I am referring to the remaining fees, which will still be subject to an unsatisfactory Negative Resolution. I would ask the noble Earl, in spite of what he has said, to give further consideration to that point, and I would also ask that there should be a Report stage.
§ LORD CONESFORD
May I say, in answer to the last point, that perhaps I have a little more recent experience than the noble Lord, Lord Silkin, because between the years 1951 and 1955 I had to move several Affirmative Resolutions, and I assure him that in another place they come on at the end of the day, at almost precisely the same hour as the Negative Resolutions.
§ LORD DOUGLAS OF BARLOCH
There is, however, a most important difference between the two forms of pro- 1040 cedure. It is simply this: that on the Affirmative Resolution procedure the Government of the day have to justify the proposal which they are making and put before the House the facts which, in their opinion, are the foundation of the policy that they are putting forward; whereas upon the Negative Resolution procedure the Private Member is left to try to ferret out some facts, probably with great difficulty, in order to support the case. That is a most important difference.
I certainly welcome the suggestion which the noble Earl has made, that the maximum fee to be paid on application for a patent should be controlled by Statute and should not be left to the discretion of the Board of Trade; and certainly it should not be more than £2, because at that stage the Patent Office do no work worth speaking about. All they do is to receive the application, give it a serial number and so on. It is not examined in the Patent Office at that stage; nothing whatever is done, and a fee of £2 is ample for the merely mechanical processes which are gone through at the time when the application is first filed. Afterwards, when the complete specification is filed, I agree that the Patent Office have more to do and that their work is skilled and important.
On the other hand, do not let us confuse this discussion by comparing the fees which are paid to the Patent Office with the fees which are paid to a patent agent for the work which he does, which in many cases is a great deal more extensive and more difficult and indeed forms the foundation upon which the official in the Patent Office begins his work. One might just as well compare the fees which are paid to solicitors and counsel in cases in the High Court with the fees which are paid to the Court itself. That is an entirely fallacious comparison, if I may say so with all respect to the noble and learned Earl, Lord Swinton.
However, to come back to this point, I would say that we are still (and this enforces what my noble friend Lord Silkin said) in the position that the noble Earl has not told us, so far as I can recollect, anything at all about the justification for this proposal; nothing about the income and expenditure of the Patent 1041 Office. All he has said is that it is an inflexible principle that the revenue and the expenditure ought to balance; but he has not in fact given any information which would show what level of fees might be reasonable at this stage to cover that principle.
§ THE EARL OF DUNDEE
I did tell your Lordships on that subject—I do not know whether the noble Lord was here —that there was a deficit of £133,000 in the accounts of the Patent Office, owing to the fact that the existing maxima were out of keeping with modern prices.
§ LORD DOUGLAS OF BARLOCH
Yes. I wonder whether the noble Earl has in his mind the number of applications which are filed in the Patent Office in the course of a single year. I should think that doubling the application fees alone would make a considerable inroad into that £133,000. But to quote a figure like that is not sufficient, because it may be a balance on a total expenditure of £100,000, £500,000 or £1 million. We just do not know, and these things have to be put into perspective. That is why my noble friend Lord Silkin is entirely correct in saying that the obligation is upon Her Majesty's Government, and clearly laid down, to justify proposals of this kind so that we may have the facts of the case.
§ On Question, Amendment negatived.
§ 4.51 p.m.
LORD CAWLEYhad given Notice of his intention to move to leave out Clause 2 and to insert:
2. Her Majesty may from time to time 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."
§ The noble Lord said: The noble Earl has said that somebody was bound to bring a Negative Resolution. I think I may say that it is only because I am a practitioner in this branch of the law that the provision in this Bill has been debated. I believe that that would show how necessary it is that the increases in maxima should at any rate come before the House. I have made my protest. I have no doubt it will come up in another 1042 place, and so I do not propose to move my Amendment.
§ LORD SILKIN
If the noble Lord does not do so it will be put down again on the Report stage, because I feel it is a matter which requires more consideration than we have given it to-day. I firmly believe that a matter of this kind, which up to this moment would have required legislation, should not be dealt with in the way in which Her Majesty's Government now propose to deal with it, by means of an Order subject to a Negative Resolution. While, therefore, I will not object to the noble Lord's not moving his Amendment, I give notice that it will be put down again.
§ Clause 2 agreed to.
§ Remaining clause agreed to.
§ House resumed.