§ 191 Schedule 1, page 105, line 6, at end insert "(but not in relation to patents and applications for patents under this Act)."
§ 192 Schedule 1, page 105, line 7, leave out from "12" to "69" in line 8 and insert 13, 15 to 17, 19 to 21, 22(1) to (3), 23 to 26, 28 to 33, 46 to 53, 55, 56, 59 to 67,"
1086§ 193 Schedule 1, page 105, line 33, leave out "fourteen" and insert "eleven".
§ 194 page 106, line 6, leave out sub-paragraph (4).
§ 195 page 106, line 16, leave out "subsections (4) and (5) of that section" and insert "sections 22(3) to (5) above".
§ 196 page 106, line 19, leave out from "under" to "except" in line 21 and insert "section 22(3) to (5) above".
§ 197 page 106, line 27, after "shall" insert ",together with any contract relating to the licence,"
§ 198 page 106, line 28, after "force" insert "(unless determined otherwise than in accordance with this sub-paragraph)".
§ 199 page 106, line 29, after "shall" insert "after the end of that year".
§
200 page 106, line 34, at end insert— (c) every such patent shall after the end of that year be treated as endorsed under section 35 of the 1949 Act (licences of right).".
§
201 page 106, line 35, leave out sub-paragraph (3) and insert:
(3) Where the term of a new existing patent is extended by this paragraph and any Government department or any person authorised by a Government department—
any such use of the invention by any Government department or person so authorised, after the end of that year, may be made free of any payment to the proprietor of the patent.".
§
202 Page 107, line 15, at end insert—
5A. Notwithstanding anything in section 32(1)(j) of the 1949 Act (ground for revocation that patent was obtained on a false suggestion or representation), it shall not be a ground of revoking a patent under that subsection that the patent was obtained on a false suggestion or representation that a claim of the complete specification of the patent had a priority date earlier than the date of filing the application for the patent, but if it is shown—
that such a suggestion or representation was falsely made, the priority date of the claim shall be taken to be the date of filing the application for that patent.
§
203 Page 107, line 22, at end insert—
(2) At the end of the said section 33 there shall be added the following sub-section:—
(5) A decision of the comptroller or on appeal from the comptroller shall
1087
not stop any party to civil proceedings in which infringement of a patent is in issue from alleging that any claim of the specification is invalid on any of the grounds set out in section 32(1) of this Act, whether or not any of the issues involved were decided in that decision.".
§ 204 Schedule 2, page 107, line 31, leave out "The" and insert "Without prejudice to those provisions of Schedule 4 below which apply (in certain circumstances) provisions of this Act in relation to existing patents and applications, the".
§ 205 Schedule 2, page 107, line 35, after "sections" insert "(Information prejudicial to defence of realm or safety of public), (Restrictions on applications abroad by United Kingdom residents), 22(3) to (5)"
§ 206 Schedule 2, page 107, line 36, leave out "112 to 117" and insert "112(1) to (3), 113 to 118"
§ 207 Schedule 2, page 107, line 36, after "126" insert "(2)"
§
208 Schedule 2, page 107, line 39, at end insert—
(aa) a reference to a specified provision of this Act other than one of those provisions shall be construed as a reference to the corresponding provision of the 1949 Act (any provision of that Act being treated as corresponding to a provision of this Act if it was enacted for purposes which are the same as or similar to that provision of this Act);
§ 209 Schedule 2, page 107, Schedule 3, page 108, line 19, leave out paragraph 1
§ 210 Schedule 2, page 107, line 32, leave out "also"
§
211 Schedule 2, page 107, line 36, leave out paragraph (b) and insert—
(b) section 32(3) (revocation for refusal to comply with Crown request to use invention);
§ 212 Schedule 2, page 107, line 48, leave out paragraph (g)
§ 213 Schedule 4, page 109, line 17, leave out "either" and insert "whether to a person entitled to apply for a patent for the invention,"
§ 214 Schedule 4, page 109, line 18, leave out "subject to sub-paragraph (3) below"
§ 215 Schedule 4, page 109, line 28, after "to" insert "sub-paragraph (3) below"
§ 216 Schedule 4, page 109, line 30, leave out "paragraph (b) of section 52(5)" and insert "sections 52(5)(b) and 55(6A)"
§ 217 Schedule 4, page 109, line 41, leave out "subject to sub-paragraph (3) below"
§ 218 Schedule 4, page 109, line 43, leave out from first "and" to "Act" and insert ", in addition to those provisions of the 1949 Act which continue to apply by virtue of Schedule I above, section 70 of that"
§ 219 Schedule 4, page 110, line 5, after "to" insert "sub-paragraph (3) below"
§ 220 Schedule 4, page 110, line 6, leave out "paragraph (b) of section 66(2) "and insert" section 66(2) and (3)".
1088§ 221 Schedule 4, page 110, line 14, leave out from "of" to end of line 16 and insert "that patent or those privileges or rights".
§ 222 Page 111, line 2, leave out paragraph 6.
§ 223 Page 112, line 3, leave out "appointed" and insert "relevant".
§ 224 Page 112, line 11, leave out "appointed" and insert "relevant".
§ 225 Page 112, line 14, at end insert—
§ 226 "(3) In this paragraph "the relevant day" means, in relation to section 41, the date of the passing of this Act and, in relation to sections 35 to 40 and 43 to 45, the appointed day."
§ Page 112,line 14, at end insert —
§ "Convention countries
§ 9A.—(1) Without prejudice to paragraph 1 above, an Order in Council declaring any country to be a convention country for all purposes of the 1949 Act or for the purposes of section 1(2) of that Act and in force immediately before the appointed day shall be treated as an Order in Council under section 87 above declaring that country to be a convention country for the purposes of section 5 above.
§ (2) Where an Order in Council declaring any country to be a convention country for all purposes of the 1949 Act or for the purposes of section 70 of that Act is in force immediately before the appointed day, a vessel registered in that country (whether before, on or after that day) shall be treated for the purposes of section 57 above, as it applies by virtue of paragraph 3(2) above to an existing patent or existing application, as a relevant ship and an aircraft so registered and a land vehicle owned by a person ordinarily resident in that country shall be so treated respectively as a relevant aircraft and a relevant vehicle."
§ 227 Page 112, line 14, at end insert—
§ "Appeals from court on certain petitions for revocation
§ 9B. Where the court has given judgment on a petition under section 32(1)(j) of the 1949 Act before the appointed day, any appeal from the judgment (whether instituted before, on or after that day) shall be continued or instituted and be disposed of under the old law."
§ 228 Page 114, leave out lines 7 to 10.
§ 229 Page 114, line 14, at end insert—
- "16A.—(1) Nothing in the repeals made by this Act in sections 23 and 24 of the 1949 Act shall have effect as respects any such application as is mentioned in paragraph 3(3) of Schedule 1 above.
- (2) Nothing in the repeal by this Act of the Patents Act 1957 shall have effect as respects existing applications.
- (3) Section 69 of the 1949 Act (which is not repealed by this Act) and section 70 of that Act (which continues to have effect for certain purposes by virtue of paragraph 3 above) shall apply as if section 68 of that Act had not been repealed by this Act and as if paragraph 9A above had not been enacted."
§ 230 Schedule 5, page 114, line 16, at end insert:
§ "Crown Proceedings Act 1947 (c. 44)
§ 1. In section 3 of the Crown Proceedings Act 1947, for subsection (2) there shall be substituted:
§ "(2) Nothing in the preceding subsection or in any other provision of this Act shall affect the rights of any Government department under Schedule I to the Registered Designs Act 1949 or section 52 of the Patents Act 1977, or the rights of the Secretary of State under section (information prejudicial to defence of realm or safety of public) of the said Act of 1977.""
§ 231 Schedule 5, page 114, line 19, leave out "substitute" and insert "there shall be substituted".
§ 232 Schedule 5, page 114, line 21, leave out "insert" and insert "there shall be inserted"
§ 233 Schedule 5, page 114, line 42, at end insert
§ "Atomic Energy Authority (Weapons Group) Act 1973 (c. 4)
§ 5. In section 5(2) of the Atomic Energy Authority (Weapons Group) Act 1973—
- (a) after the first "Patents Act 1949 there shall be inserted", the Patents Act 1977"; and
- (b) after the second "Patents Act 1949" there shall be inserted "section 52(4) of the Patents Act 1977".
§ Fair Trading Act 1973 (c. 41)
§ 6.—(1) In paragraph 10 of Schedule 4 to the Fair Trading Act 1973 for "Patents Act 1949" there shall be substituted "Patents Act 1977".
§
(2) After the said paragraph 10 there shall be inserted:—
10A. The services of persons carrying on for gain in the United Kingdom the business of acting as agents or other representatives of other persons for the purpose of applying for or obtaining European patents or for the purpose of conducting proceedings in connection with such patents before the European Patent Office or the comptroller and whose names appear on the European list (within the meaning of section 82(7) of the Patents Act 1977), in their capacity as such persons.".
§ 234 Schedule 5, page 114, line 42, at end insert—
§ "Restrictive Trade Practices Act 1976 (c. 34)
§ 7.—(1) In paragraph 10 of Schedule 1 to the Restrictive Trade Practices Act 1976, for "the Patents Act 1949" there shall be substituted "the Patents Act 1977".
§
(2) After the said paragraph 10 there shall be inserted—
10A. The services of persons carrying on for gain in the United Kingdom the business of acting as agents or other representatives of other persons for the purpose of applying for or obtaining European patents or for the purpose of conducting proceedings in connection with such patents before the European Patent Office or the comptroller and
1090
whose names appear on the European list (within the meaning of section 82(7) of the Patents Act 1977), in their capacity as such persons "
§ 235 Schedule 6, page 115, line 3, at end insert—
| "7 Edw. 7. c. 29. | The Patents and Designs Act 1907. | Section 47 (2). |
| 9 & 10 Geo. 6. c. 80. | The Atomic Energy Act 1946. | In section 12, subsections (1) to (7)". |
§ 236 Schedule 6, page 115, leave out lines 5 to 7.
§ 237 Schedule 6, page 115, line 8, at end insert "section 16(6)"
§ 238 Schedule 6, page 115, line 9, at end insert "section 22(4) and (5)"
§ 239 Schedule 6, page 115, leave out lines 10 and 11 and insert—
| "In section 23(1), the words from "(not exceeding" to "ten years)". | |
| In section 24, in subsection (1), the words "(not exceeding ten years)" and in subsection (7) the words from "but" to the end." |
§ 240 Schedule 6, page 115, line 13, leave out from "32" to end of line 19 and insert "subsection (3)"
§ 241 Schedule 6, page 115, leave out lines 22 to 24.
§ 242 Schedule 6, page 115, leave out lines 26 to 28.
§ 243 Schedule 6, page 115, line 38, at end insert "Schedule 3, except paragraphs 1 and 26"
§ 244 Schedule 6, page 115, leave out lines 39 to 42.
§ 245 Schedule 6, page 115, leave out lines 45 to 49.
§ 246 Schedule 6, page 115, leave out lines 50 to 53.
§ 247 Schedule 6, page 115, leave out lines 54 and 55 and insert—
| "9 & 10 Eliz. 2. c. 25. | The Patents and Designs (Renewals, Extensions and Fees) Act 1961. | In section 1(1), the words from "sub-section (5)" to "and in". Section 2." |
§ 248 Page 116, line 2, column 3, leave out from "Schedule 1" to end of line 8 and insert "the entry relating to section 84 of the Patents Act 1949"
§ 249 Page 116, leave out lines 12 to 14.
§ 250 Page 116, line 14, at end insert—
| "1968 c. 64. | The Civil Evidence Act 1968. | Section 15." |
§ 251 Page 116, line 32, at end insert—
| "1971 c. 36 (N.I.). | The Civil Evidence Act (Northern Ireland) 1971. | Section 11." |
§ 252 Page 116, leave out lines 33 to 39.
1091§ 7.21 p.m.
§ The LORD CHANCELLORMy Lords, with the leave of the House I beg to move that this House doth agree with the Commons in their Amendments Nos. 191 to 252 en bloc—that is to say, even unto the final Amendment in this great, long list. I recognise that it is not a usual event to speak to 62 Amendments in I shall not say one breath but at once. It is the case that some of the Amendments add some new material to the Schedules, but really they are all consequential on other provisions of the Bill and I venture to think that, while they are necessary, none calls for special mention.
§ Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
§ Lord LLOYD of KILGERRANMy Lords, I agree with the noble and learned Lord the Lord Chancellor that these are all technical Amendments. However, Amendment No. 193 is a matter as regards which I should like to register my discontent and I notice that the noble Earl, Lord Halsbury, is also nodding his head in agreement with me.
Amendment No. 193 is the important Amendment dealing with the extension of the term of patents that are in being now and therefore only get a period of 16 years of life plus some further four years if it is possible to make a case in the High Court about extension, whereas all patents applied for after this Act comes into power will get 20 years. On the basis of an Amendment that I moved, this House resolved that there should be a period of only two years, whereas Amendment No. 193 makes the period five years. Therefore the other place has reversed the Amendment which succeeded in this House.
I want to register my discontent only briefly. This Amendment may have a very serious effect upon, in particular, pharmaceutical patents. I understand that in the other place the Minister has agreed that, in view of the representations that have been made recently about the extension of terms of pharmaceutical patents, the matter will be reconsidered by the Standing Advisory Committee and new legislation will be necessary if the Standing 1092 Advisory Committee consider that pharmaceutical patents are in a special situation. I shall not at this late hour deal with the matter in any detail, but I register my discontent as regards Amendment No. 193. However, I shall not move the House to divide on this matter.
The Earl of HALSBURYMy Lords, like the noble Lord, Lord Lloyd of Kilgerran, I am sorry that I am making my swan song on the Bill on such a sorry business. However, I do not know what to do about it. Dividing the House would not be an answer. I sometimes wonder, in the context of provisions of this kind, whether we ought not to include the General Confession in our prayers before our proceedings. If ever there is a body of men who need a constant reminder that they leave undone those things that they ought to do and do those things that they ought not to do, it is the legislature when it is in a mood to discourage all the things that it ought to encourage and encourage all things that it ought to discourage. This Amendment benefits the licensee at the expense of the licensor—the inventor user. The licensee is the man without the initiative to make inventions. The licensor is the man with the initiative to make inventions. Therefore, we are putting obstacles in the way of initiative. That is something we ought not to do. Therefore, I can only express myself as discontent, but I shall not carry my discontent to its logical conclusion.
§ The LORD CHANCELLORMy Lords, I am sorry that after the happy course of the proceedings this evening when so many victories were recorded by, for instance, the noble Lord, Lord Lloyd of Kilgerran, and the noble Earl, Lord Halsbury, in a number of matters, we should end on a note where, alas! we have to disappoint them. However, it is not an easy matter.
The effect of the Amendment is to extend the term of an existing patent to 20 years only if it has at least five years to run and, as the noble Lord, Lord Lloyd of Kilgerran, has said, it reverses the Amendment that was carried in your Lordships' House which would have extended the term if it had only two years to run. The position really is that it has always been agreed that it is a matter 1093 of judgment where to draw the line, but the Government at least have the comfort of having followed the recommendations of the Standing Advisory Committee on Patents, and that was the view taken in another place.
The noble Lord, Lord Lloyd of Kilgerran, has referred to the position of pharmaceutical patents. In another place the Opposition tried, unsuccessfully, to make a special exception for them. While other old patents would have received the 20-year term only if they had had at least five years to run, pharmaceutical patents would, if that attempt had been successful, have been given the 20-year term if they had only two years to run. That was resisted by the Government but the Minister, as has been said, undertook to consider the position of the pharmaceutical industry and conceded, without giving any undertaking, that if he thought it warranted, there was the possibility of introducing further legislation. Therefore, I am sorry that we have not fully met the wishes of the noble Lords, but I am grateful to them for their intimation that they will not now press these differences to a Division.
§ Lord LYELLMy Lords, before the Question is put, I should like to intercede. I did not get on my feet quickly enough after the noble Earl, Lord Halsbury, sat down. This group of Amendments includes Amendment No. 211. If the noble and learned Lord, the Lord Chancellor, chances to look at the Amendment, he will see that it seems to flow from my comments at Third Reading when I was moving an Amendment which sought to prevent secret prior use of a particular patent. Also, in my comments on Third Reading, I found that there was a problem covered by the Standing Advisory Committee where the grounds of fair basis were not permissible as a reason for revocation.
However, Amendment 211 appears to allow the whole of Section 32 of the 1949 Act to be used in revocation proceedings of patents subject to the 1949 Act. I believe that that is admirably consistent and we are delighted that the Government see fit to allow our point. After the weighty and lengthy consideration given by the noble and learned Lord on the Woolsack, I was pleased to see that he finished the Third Reading by saying that 1094 the matter would be discussed in another place. Certainly my noble friends and I did not dream that your Lordships' House would find our case made for us.
I am sure that the noble Lord, Lord Oram, would not regard any discussion of the Patents Bill as complete without what I call the ritual of estoppel and issues. This must be a tidying up, a drafting. We hope that this is the last sally—perhaps I could call it "Lyell's revenge" —and possibly I have had the last word on this particular issue. However, I should like to say how grateful we are that Amendment No. 211 seems to have incorporated something that we moved at an earlier stage.
§ On Question, Motion agreed to.