HL Deb 24 February 1977 vol 380 cc370-9

3.30 p.m.

The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, that the House do again resolve itself into Committee.—(Lord McCluskey.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 29 [Register of patents, etc.]:

Lord McCLUSKEY moved Amendment No. 131: Page 22, line 43, at end insert (", except so far as the context otherwise requires").

The noble and learned Lord said: Clause 29(1) states the interpretation to be placed on the noun and the verb "register" wherever used in the Bill. They are to be taken as referring to the register of patents kept at the Patent Office in accordance with the clause. Elsewhere in the Bill, however, are references to another register; namely, the register of patent agents—and, for example, that is to be found in Clauses 102 and 103. The Amendment therefore limits the placing of the present interpretation on the word "register" to instances of its use in the Bill where it is intended to refer to the register of patents. Registered trade marks are also referred to in Clause 16(3). An almost identical Amendment has been tabled by the noble Lord, Lord Lyell, and the noble Lord, Lord Belstead. I am obliged to them for drawing the attention of the Committee to this point. I hope they will feel able to withdraw their Amendment, No. 132, and accept this Government Amendment.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendments Nos. 133 and 134:

Page 23, line 21, leave out ("and").

Page 23, line 23, at end insert ("and (g) the publication and advertisement of any thing done under this Act or rules in relation to the register.").

The noble and learned Lord said: Amendment No. 134 is intended to add to the list of specific matters set out in Clause 29(2) with respect to which rules make provision. The Amendment allows for the making of rules about the publication and advertisement of anything done under the Bill or rules in relation to the register. It is desirable that there should be power to make rules relating to such matters to ensure that adequate publicity is given to them. Amendment No. 133 is obviously consequential.

On Question, Amendments agreed to.

Lord BELSTEAD moved Amendment No. 135:

Page 23, line 23, at end insert— ("(g) registration of a transaction, instrument or event shall take effect from the date it was submitted for registration, unless the Comptroller otherwise orders").

The noble Lord said: If adjudication or stamp is required for the registration of any transaction, instrument or event, a considerable period of time can elapse and it is important for the patentee who is seeking to apply the proper stamp fee that he should be able to know that registration under Clause 29 takes effect from the date of submission for registration, and it is for that reason that I move the Amendment.

Lord McCLUSKEY

The purpose of the Amendment is clear and the Government accept it in principle. Indeed, we are indebted to noble Lords opposite for drawing the matter to the Committee's attention. However, the Government have themselves proposed an Amendment, No. 154, which is designed to have the same effect. It does in fact have that effect in relation to Clause 30 and the noble Lord, Lord Belstead, may feel that the Government Amendment achieves his purpose in a better place and perhaps therefore in a better way to give effect to this perfectly valid point. I have nothing to add to what the noble Lord said, but I would ask him in the light of the Amendment which I propose to move, No. 154, not to insist on this one.

Lord BELSTEAD

I am grateful to the Minister and with his assurance that his Amendment totally covers the one which I sought to move, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 29, as amended, agreed to.

Clause 30 [Requirement for registration or notice]:

Lord McCLUSKEY moved Amendment No. 136: Page 23, line 34, after first ("event") insert ("to which this section applies").

The noble and learned Lord said: With the permission of the Committee, I will speak at the same time to Amendments Nos. 138, 139, 140, 141 and 143. These are all Amendments to Clause 30 and they are related to one another. They are in fact minor drafting improvements and there is no change of substance in any of them. The Amendments which add the words "to which this section applies"—Nos. 136, 139, 140 and 143—have the effect of limiting the transactions, instruments and events to which the clause relates to transactions, instruments and events of the kind specified in subsection (4). Secondly, the word "incompatible" is thought to be better and more accurate than the word "inconsistent", and accordingly Amendment No. 138 makes that change in subsection (1).

The third type of Amendment, the one to subsection (2), should make it clearer that the rival claims with which we are concerned here must arise by virtue of different transactions. This change necessitates a consequential Amendment to subsection (2)(a), and that is Amendment No. 141.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 137: Page 23, line 36, after ("application") insert ("for a patent").

The noble and learned Lord said: This, too, is a short and technical matter. Several kinds of application are referred to in the Bill. The principal of these are of course applications for a patent and the Amendment is inserted to remove any possible ambiguity over what was intended in this context.

Lord BELSTEAD

The only point that surprises me, while we are giving such minute attention to the drafting of the Bill, is that "application for a patent" was not defined in Clause 118. That would have saved the Government from having continually to talk about "an application for a patent" because the other patents would not have come under such a definition.

Lord McCLUSKEY

I have no doubt that the draftsmen might have taken that into account, but "application" is used in different contexts under the Bill and that might not have been quite so easy as it might appear to the noble Lord and to myself.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendments Nos. 138 to 141:

Page 23, line 36, leave out ("inconsistent") and insert ("incompatible").

Page 23, line 38, after ("event") insert ("to which this section applies").

Page 24, line 8, leave out ("a transaction, instrument or event") and insert ("different transactions, instruments or events to which this section applies").

Page 24, line 12, leave out ("neither transaction, instrument or event") and insert ("none of the transactions, instruments or events").

The noble and learned Lord said: I spoke to these Amendments when moving an earlier one. I beg to move.

On Question, Amendments agreed to.

Lord McCLUSKEY moved Amendment No. 142: Page 24, line 31, leave out from ("transaction") to ("to") in line 22 and insert ("instrument or event to be made or").

The noble and learned Lord said: Again, this is a purely drafting Amendment. The wording at this point in subsection 2 (b) is thought to be somewhat unhappy, and the Amendment is designed to make the provision easier to read.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 143: Page 24, line 24, after ("event") insert ("to which this section applies").

The noble and learned Lord said: I have already spoken to this Amendment. I beg to move.

On Question, Amendment agreed to.

3.40 p.m.

Lord McCLUSKEY had given Notice of his intention to move Amendment No. 145: Page 24, line 26, leave out ("a patent or application") and insert ("from that transaction, instrument or event be entitled to that property or right").

The noble and learned Lord said: I am not quite sure why the noble Lord, Lord Lyell, did not move Amendment No. 144. Perhaps he thought that I was going to move Amendment No. 145. I regret to disappoint him. I believe that the position is that there was a typographical error in the Bill, and that noble Lords opposite sought to put it right and got it wrong. We too sought to put it right, but I have detected that our Amendment is also in error. Accordingly, a fourth attempt will be made at a later stage. At this point, I propose not to move Amendment No. 145.

The CHAIRMAN of COMMITTEES (Lord Aberdare)

I should point out that, if Amendment No. 146 is agreed to, I cannot call Amendment No. 147.

Lord McCLUSKEY moved Amendment No. 146: Page 24, line 28, leave out ("the application is sought") and insert ("to which the application relates or the successor in title of either of them").

The noble and learned Lord said: The purpose and effect of this Amendment are as follows: Clause 30(1) provides how, where two or more persons are claiming inconsistent rights to, in or under a patent or application for a patent arising by virtue of different transactions, instruments or events, it is to be decided which prevails over the other or others. Subsection (3) makes special provision in the case of a claim to such rights against an inventor.

At present, line 28 refers to an application for a patent being "sought". This expression is thought to be inexact and the first five words of the Amendment express the desired concept more accurately. This Amendment subsumes Amendment No. 147 tabled by the noble Lords, Lord Lyell and Lord Belstead. If the present Amendment is agreed to Amendment No. 147 will not be moved, but I would also say that, having regard to the second look that we shall have to take at this whole clause in the light of what has happened to the previous two Amendments, we may have to look at this matter again. However, we accept in principle what was contained in Amendment No. 147. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 148: Page 24, line 38, leave out ("any such") and insert ("a")

The noble and learned Lord said: This is a very minor drafting Amendment. It is identical to Amendments Nos. 150 and 151 so, with permission, I shall speak to all three at the same time. By referring, as the present wording does, to "any such patent" and so on, the reader is referred back to the patent previously referred to in the text of the clause. This should not be so. Subsection (4), which states the transactions, instruments and events to which the clause applies, should simply relate to patents and the like generally and not to any patent previously referred to in the preceding subsections. The Amendment rectifies this drafting error. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 149: Page 24, line 41, leave out ("an exclusive") and insert ("a").

The noble and learned Lord said: This, similarly, is a drafting matter which has been corrected. I feel that the purpose of it must be obvious to those who have read it and could not be explained by me to those who have not. In the circumstances, I beg to move.

Lord LYELL

I am sure that we shall accept the Amendment, but we were looking forward to a detailed exposition of the Bill by the noble and learned Lord and we hope to be able to obtain extremely detailed explanations of all these minor points. Nevertheless, in this particular case we are glad that the noble and learned Lord assures us that on both sides of the Committee we have read this technical point.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendments Nos. 150 and 151:

Page 24, line 42, leave out ("any such") and insert ("a").

Page 25, line 1, leave out ("any such") and insert ("a").

The noble and learned Lord said: With permission, I shall move Amendments Nos. 150 and 151 together, these being the two Amendments which, as I pointed out, go with Amendment No. 148. I beg to move.

On Question, Amendments agreed to.

Lord McCLUSKEY moved Amendment No. 152: Page 25, line 2, leave out second ("by") and insert ("of").

The noble and learned Lord said: Again, this simply rectifies a typographical error. The reference in line 2 of page 25 should be to an assent "of" personal representatives. Accordingly, I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 153: Page 25, line 5, leave out from ("authority") to ("any") in line 6 and insert ("transferring a patent or any right in or under it to any person or any such order or directions that an application should proceed in the name of any person or transferring any right in or under it to").

The noble and learned Lord said: Again, this is a drafting Amendment and, one hopes, an improvement. Subsection (4)(e) makes orders or directions of a court or other competent authority events to which the clause applies. As at present drafted, the wording is considered too narrow and the Amendment widens its scope so as to include more such orders or directions which could give rise to registrable rights. With that explanation, I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 154:

Page 25, line 8, at end insert— ("(4A) Any condition imposed by this section which requires the registration of a transaction, instrument or event shall, in a case where an application has been made for the registration of the transaction, instrument or event but it has not been registered, be treated as satisfied by the registration of the application.").

The noble and learned Lord said: This is the Amendment to which I referred when speaking on Amendment No. 135. I have already explained it. We accept the point made by noble Lords opposite in their Amendment, and I simply beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 155: Page 25, line 9, after ("(3)") insert ("above")

The noble and learned Lord said: I can move this Amendment formally. It is simply intended to make for consistency of drafting style with similar references elsewhere in the Bill. I beg to move.

On Question, Amendment agreed to.

On Question, Whether Clause 30, as amended, shall stand part of the Bill?

Lord LLOYD of KILGERRAN

This clause is not of very great significance, but it is important from an administrative point of view as regards the registration of patents and the giving of notices. When I and many of my professional friends first read this clause we simply could not understand what part of it meant. The noble and learned Lord has referred to parts of this clause as being "unhappy". Twenty Amendments have been put down and I, as a practitioner in this matter, cannot construe the Bill before having had the opportunity of studying where all these Amendments are to be put in the Bill. Therefore, we reserve our position as regards the right to produce an Amendment if that should be necessary when we see the whole text of the clause.

Lord McCLUSKEY

I can only commend to the noble Lord that he should do as I have had to do; that is, he should take a piece of paper and write out the Amendments and, by underlining various parts, slowly twist the meaning from the text.

Lord LLOYD of KILGERRAN

But the noble and learned Lord had an advantage over me in that he knew how many Amendments would be introduced. I had no knowledge about that until I heard the debate.

Clause 30, as amended, agreed to.

Clause 31 [Rectification of Register]:

3.49 p.m.

Lord McCLUSKEY moved Amendment No. 156: Page 25, line 17, leave out ("of patents").

The noble and learned Lord said: This is a short Amendment which follows from the Amendment which I moved in relation to the word "register" in Clause 29(1). We can now leave out the words "of patents". I beg to move.

On Question, Amendment agreed to.

Clause 31, as amended, agreed to.

Clause 32 [Evidence of register, documents, etc.]:

Lord McCLUSKEY moved Amendment No. 156A: Page 25, line 37, leave out from ("Office") to first ("any") in line 38.

The noble and learned Lord said: Clause 32 enables entries in the patents register and the contents of certain other documents kept in the Patent Office to be admitted in evidence on production of a copy of them purporting to be certified by the comptroller and sealed with the seal of the Patent Office without further proof. The certificate referred to in the second line of Clause 32(3) is the one to be issued by the comptroller to the proprietor of a patent in pursuance of Clause 21(2), stating that a patent has been issued to him. However, unlike Letters Patent issued under the Royal Prerogative, such a certificate has no legal effect. It is, of course, the register which has the legal effect. Under the Bill the question of who owns a patent or an interest in one is to be answered only by consulting the patent register. Thus there is no point in providing in the Bill for the admission in evidence of copies of such certificates, and this Amendment seeks to delete the relevant words which are seen to be unnecessary. I beg to move.

On Question, Amendment agreed to.

Clause 32, as amended, agreed to.

Lord STRABOLGI

My Lords, this may be a convenient moment to take the Statement being made in the other place, and I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.