PATENTS BILL [H.L.]

HL Deb 29 March 1977 vol 381 cc815-80

5.18 p.m.

Lord ORAM

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 Oram.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Baroness WOOTTON of ABINGER in the Chair.]

Clause 111 agreed to.

Clause 112 [Rules]:

Lord LLOYD of KILGERRAN had given Notice of his intention to move Amendment No. 347: Page 81, line 40, after ("comptroller") insert ("or of a tribunal")

The noble Lord said: I have spoken already at length and with passion about the desirability of having a tribunal for dealing with disputes. I have spoken to this Amendment, which is not moved.

The LORD CHANCELLOR moved Amendment No. 348A:

Page 82, line 29, at beginning insert— ("without prejudice to any other provision of this Act, requiring and regulating the translation of documents in connection with an application for a patent or a European patent or an international application for a patent and the filing and authentication of any such translations; (hh) requiring the keeping of a register of patent agents and")

The noble and learned Lord said: Before we embark upon the multifarious number of Amendments which still face us, I think I should express my regret to noble Lords that so many Amendments have had to be put down at this stage. Our task was to try to get the Bill on the stocks, so to speak, as soon as possible, so that we could be parties to the European arrangements, as founder members, as soon as possible. I am afraid that that meant rushing especially the preparation of the Schedule, and that accounts for some later thinking and rethinking, which has in turn necessitated the labour which faces the Committee, which I think may in the event prove to be not quite so burdensome or so lenghty as at first sight it appears.

I renew my apologies. We are now dealing with Amendment No. 348A and it might be convenient to deal also with Amendment No. 349. Amendment No. 348A fills two gaps in the Bill. First, it provides a clear rule-making power dealing with the translations which may be necessary under the Bill; and, secondly, it allows rules to be made requiring the keeping of a register of patent agents. Amendment No. 349 is a drafting Amendment to clarify the meaning and does no more than that. I beg to move.

Lord BELSTEAD

On behalf of my noble friend and myself, we fully understand the position Ministers have been in under this Bill and are grateful to the noble and learned Lord for what he has said before moving the Amendment. As these two Government Amendments cover, and to a considerable extent meet, our Amendment No. 348 we have no objection to them and shall be supporting them.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 349: Page 82, line 30, leave out ("it") and insert ("the register of patent agents").

On Question, Amendment agreed to.

On Question, Whether Clause 112, as amended, shall be agreed to?

Lord LLOYD of KILGERRAN

This clause is of very serious administrative importance because it gives the Secretary of State powers to make such rules as are expedient for regulating the business of the Patent Office and also to make rules which give direction or control of the Comptroller General of Patents. If I may, I shall briefly submit to the Government that in so far as the rules drafted under this clause refer to the powers of the Comptroller General of Patents, the powers should be given to the Comptroller General of Patents under Section 37, particularly, of the Patents Act. Where the Comptroller General has the power to make awards to employee inventors, he should also, under the rules, have power to introduce some kind of conciliation procedure.

It is quite frequently the case in patent matters that disputes arise; but they can be settled provided the parties can come along and see some person who is sympathetic with a view to try to resolve the difficulties. It seems to me that it would be in conformity with some of the practice on the Continent where concilation procedures are in use for the purpose of trying to resolve disputes between an employee inventor and his employer. My submission is that the Government might in due course consider whether the powers of the comptroller could be so extended as to introduce some kind of conciliation procedure before the case comes to a formal hearing.

The LORD CHANCELLOR

I am grateful for the suggestion that Lord Lloyd of Kilgerran has made. I shall look at the point. I am certainly in favour of encouraging the concept of conciliation. Whether there is any necessity to give the comptroller a rule-making power to deal with it, I should like to consider. Perhaps we shall return to it at a later stage.

Lord LLOYD of KILGERRAN

I am obliged to the noble and learned Lord. I apologise for not giving him notice about it beforehand.

Clause 112, as amended, agreed to.

Clause 113 [Rules, regulations and orders; supplementary.]:

The LORD CHANCELLOR moved Amendment No. 349A: Page 83, line 8, after ("conferred") insert ("on the Secretary of State").

The noble and learned Lord said: It may be convenient also to deal with Amendment No. 349C in this connection and, possibly, if noble Lords opposite are happy about it, with Amendment 350. Amendments Nos. 349A and 349C are mainly drafting Amendments. The first makes it clear that subsection (1) of Clause 113 is concerned solely with powers conferred on the Secretary of State and has nothing to do with orders which may be made by the court or the comptroller. Clearly, Clause 113 is not intended to bite on an order made by the comptroller under, for example, Clause 7(1). The purpose of these Amendments is very much the same as that underlying Amendment No. 350 put down by noble Lords opposite. I am grateful to them for drawing attention to the defect in Clause 113; although perhaps their Amendment does not deal with the defect so far as subsection (1) is concerned. I hope that, in the light of what I have said, noble Lords will feel able to accept the Amendments which I propose, which are largely drafting, and perhaps will withdraw their own. I beg to move.

Lord LYELL

I should like to thank the noble and learned Lord for taking the three Amendments together. We are also grateful for his very full explanation of why Amendment No. 349C is superior to our Amendment in that the Government Amendment seems to go further and remedies several defects that certainly have been apparent to the (dare I say it?) advisers to the noble and learned Lord, but which were not apparent at that earlier stage to our very capable advisers. We understand that the Amendment to which the noble and learned Lord has spoken meets and provides satisfactorily for our Amendment.

On Question, Amendment agreed to.

The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)

if Amendment No. 349C is agreed to, then Amendment No. 350 cannot be moved.

The LORD CHANCELLOR moved Amendment No. 349C: Page 83, line 10, leave out from ("Council") to ("shall") in line 13 and insert ("and any statutory instrument containing an order, rules or regulations under this Act other than an order required to be laid before Parliament in draft or an order under section 120(4) below").

On Question, Amendment agreed to.

Clause 113, as amended, agreed to.

Clause 114. [Extent of Invention]:

The LORD CHANCELLOR moved Amendment No. 350A: Page 83, line 17, after ("invention") insert ("for a patent for which an application has been made or for which a patent has been granted").

The noble and learned Lord said: It may be convenient to discuss also Amendment No. 350B in this connection. Clause 114 at present only defines "invention" and the extent of protection afforded in relation to granted patents. Under Clauses 54 and 67, however, it is necessary to determine what invention an application relates to and whether an act can be said to infringe that application. The Amendments therefore make it clear that the invention for which an application has been made and the extent of protection conferred are to be determined in the same way as for a granted patent. I beg to move.

On Question, Amendment agreed to.

Lord LYELL moved Amendment No. 351: Page 83, line 18, leave out ("that specified") and insert ("the matter defined").

The noble Lord said: This is a brief Amendment. If the Committee were to turn back in the Bill to look at Clause 11(5)—which we dealt with, it seems, light years ago, but certainly on the first day of the Committee—we should find that Clause 11(5) provides that in any application, The claim or claims shall…define the matter for which the applicant seeks protection;… To look forward again to the clause in the Bill that we are now dealing with, this Amendment seeks to repeat exactly the wording used in Clause 11(5). We believe that the wording in that particular clause of the Bill is apposite and particularly accurate and we hope that it fits into this clause. For that reason, I beg to move.

5.30 p.m.

The LORD CHANCELLOR

As I understand it from what the noble Lord, Lord Lyell, has said, it is intended by this Amendment to align the wording of Clause 114 with that used in Clause 11(5)(a). But I venture to think the two clauses are directed to different propositions. The effect of the Amendment would be to equate the invention with the matter defined in the claim and so preventing the possibility of a claim relating to more than one invention and making something of a nonsense of Clause 11(5)(d). It is true that the claim must define the matter for which the applicant seeks protection, but that matter may relate to more than one invention in accordance with Clause 11(5)(d). Clause 114, in specifying that an invention shall be taken to be that specified in a claim, does not preclude the possibility of a claim specifying other inventions. In equating the invention with the matter defined in the claim, the Amendment would preclude that possibility. It is difficult ground but, in the light of that, the proposed simplification which the Amendment had in mind would I fear make confusion worse confounded.

Lord LYELL

We are grateful to the noble and learned Lord. He has sought to make this less difficult ground. He has indeed sought to throw a bridge out over this boggy ground. Alas! I have not followed him too far along that bridge (mainly, I suspect, through fear) but I will read what the noble and learned Lord has said. I hope that before the next stage we shall be able to take further consultations, both with the noble and learned Lord and elsewhere. For that reason, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The LORD CHANCELLOR moved Amendment No. 350B: Page 83, line 19, leave out from ("application") to second ("as") in line 20 and insert ("or patent, as the case may be").

The noble and learned Lord said: I have spoken to this Amendment when speaking to Amendment No. 350A. I beg to move.

On Question, Amendment agreed to.

Lord BELSTEAD moved Amendment No. 353:

Page 83, line 24, at end insert— ("(3) In determing the extent of the protection conferred by a patent, attention shall be paid to the Protocol on the Interpretation of Article 69 of the European Patent Convention included as an integral part of that convention.").

The noble Lord said: It is to be hoped that the decisions of our courts are going to influence Continental courts in adopting their views of Article 69 of the European Patent Convention regarding the scope of protection. I think that I am right in saying that when in 1963 it was necessary to define the extent of protection, the definition which was decided on was that protection shall be decided by the terms of the claim. Article 69 of the EPC provided for this accordingly, and this was very satisfactory from the point of view of this country because in the United Kingdom this has always been the understanding of how protection shall be defined.

In the discussions leading up to the signing of the EPC it became clear that some other countries, particularly the French and Germans, interpreted this definition in a different way from our definition. In particular, the French in translating terms used the French noun le teneur which means either terms or the tenor or gist of a conversation. So it was decided, I am told, that there must be a Protocol to Article 69 which in essence says that the extent of the protection conferred by European patents should be interpreted as defining a position: …which combines a fair protection for the patentee with a reasonable degree of certainty for third parties". So reference to the Protocol to Article 69 of the EPC I would have thought should be included in Clause 114. Otherwise, judgments given in our courts will be criticised for not giving enough weight to the agreed manner of interpretation of Article 69. This is important in order that the judgment of our courts shall carry influence with other courts in the various convention countries. I beg to move.

The LORD CHANCELLOR

Clause 114 of the Bill corresponds to Article 69 of the European Patent Convention. As the noble Lord, Lord Belstead, has pointed out, the European Patent Convention is to be interpreted in accordance with the Protocol on the interpretation of Article 69. I understand that the object of the Amendment is to make it clear that the same principles as are contained in the Protocol are applied in determining the extent of protection conferred by the Bill. I venture to think that the Bill already has this effect by virtue of Clause 118(5).

I fully appreciate the concern of the noble Lord that the extent of protection conferred by the Bill should not differ from that conferred by the European Patent Convention and that therefore Clause 114 should be interpreted in like manner to Article 69 of the Convention. Any fears that this is not accomplished by the Bill are groundless. Clause 114 corresponds to Article 69; I do not think there is any difference between us on that. It is purely a question of interpretation. In this connection, I must draw your Lordships' attention to Clause 118(5), to which I have already referred, which specifically refers to certain provisions of the Bill which are drafted so as to ensure so far as we can, conformity with the equivalent provisions of the Conventions and Treaty to which I have referred. Clause 114 is specifically included among the provisions in Clause 118(5). In construing Clause 114 therefore Clause 118(5), by referring to the corresponding provisions of the EPC, directs attention to Article 69 of the EPC, and in so doing also directs attention to the Protocol which is an integral part of the Convention and which governs Article 69. I hope that, in the light of that explanation, the anxieties that have been properly raised may be allayed, and I hope that we have covered the point already, in effect, in Clause 118(5).

Lord LLOYD of KILGERRAN

It seems to me very helpful to the Community as a whole if decisions of our courts made by patent judges of great eminence could be taken into the general jurisprudence and consideration of European Courts. Prima facie, I would have thought what the noble Lord, Lord Belstead, has submitted would be helpful in that direction. In suggesting that this Amendment should be withdrawn, I have listened carefully to what the noble and learned Lord has said. He has referred to Clause 118(5). I have had the greatest difficulty in understanding this very long clause and its purpose. I wonder whether the noble and learned Lord has had regard to the words at line 10 of Clause 18(5), where it says that the provisions of the Act, …are so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the European Patent Convention. It is the words, "as nearly as practicable" which caused me great anxiety, whereas the wording of the Amendment moved by the noble Lord, Lord Belstead, draws attention to the Convention and suggests methods of interpretation without the qualification of the words, "as nearly as practicable".

The LORD CHANCELLOR

At a later stage we will come to an Amendment dealing with those much discussed words, "as nearly as practicable" which always provide some difficulties. "As nearly as we can possibly get" is a rough translation which will do for the moment. We will look into that later. I am sorry that the noble Lord, Lord Lloyd, with his normally acute mind, finds himself troubled by Clause 118(5). I will look at it again. It is very important that these things should be clear, but I believe that the protocol point is fully covered by the reference in Clause 118(5) and that we have got "as nearly as practicable" to ensuring what the noble Lord had in mind in moving his Amendment.

Lord DAVIES of LEEK

May I intervene, as a mere layman who has been looking at this all the way through from the point of view of the protection of the small entrepreneur and small inventor who is lost in a sea of international jurisprudence. If lawyers do not know where they are, God help the poor layman in the Common Market who is struggling to get protection! I was delighted to hear my noble and learned friend, with his usual Welsh eloquence, say that he would look into the definition "as nearly as practicable". I could give ten interpretations of that now; and, being a mere layman, I am completely lost in this sea of litigious dissension. I am grateful that there has been a promise that if possible this will be simplified. I have looked at these various clauses, and I hope that we shall be able to take care of the poor, small inventor who wants to find his way to protection and truth through this international language used by the lawyers.

Lord LYELL

I think that every word the noble Lord has said in fact reflects the feeling of many Members of your Lordships' House and many others in the Committee. Many of us find it extremely hard, and we are very much guided by the noble and learned Lord the Lord Chancellor. We agree that when the Bill states, "as far as practicable", it is possible to take that phrase and give it at least two definitions. I notice that the noble Lord, Lord Davies of Leek, can supply ten, and we look forward to hearing the other eight on a later occasion.

The LORD CHANCELLOR

The difficulty we are in concerns the verbal ingenuity of my noble friend Lord Davies of Leek. It does not surprise me at all that he can find 10 alternative definitions; but if he reads Clause 118(5) with that calm which perhaps he does not always bring to matters concerning the European Economic Community—because he does not always display that cold intellectual detachment on anything which relates to this field—I think he may find himself helped. However, I must not tease him about that.

I really do not think it is very difficult, but we will have a look at the words "as nearly as practicable". They are broad words, and we are setting out to make our law have the same effect, as far as we can, as the corresponding provisions of European Conventions. That is really as far as we can hope to go, bearing in mind differences of language and other similar matters. I hope that, in the light of what I have said, subject to returning to the phrase as nearly as practicable", the noble Lord will feel disposed to withdraw his Amendment.

Lord BELSTEAD

I am very grateful to the noble and learned Lord for the consideration he has obviously given to this Amendment. However, I am a little worried over the fact that the noble and learned Lord referred me to Clause 118(5), for the reason which has been given by the noble Lord, Lord Lloyd of Kilgerran. Clause 118(5) says that various clauses including Clause 114 are,— so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the European Patent Convention…". It is true that we shall be returning to this when we reach Amendment No. 365. I do not know how the courts will determine the effect of that provision, but presumably it could allow a slightly different interpretation of the protocol to Article 69 from the views which are held by other Continental countries. If that is the case, then the decisions taken by our courts, based on the interpretation of Article 69, will be decisions which will not carry so much weight with Continental courts—or, at least, so I would hazard.

Another thing which worries me, and which the noble and learned Lord was kind enough to make clear in his opening remarks on this Amendment—and I do not think this has been picked up so far—is that Clause 114 and Article 69 correspond. Of course, the noble and learned Lord is, as always, absolutely right about that but, if one looks at Clause 118(5) it is provided that various clauses in this Bill shall be: so framed as to have as nearly as practicable the same effects in the United Kingdom as the corresponding provisions of the European Patent Convention, the Community Patent Convention and the Patent Co-operation Treaty …". What worries me is that the proviso to Article 69 is surely not a corresponding provision to Clause 114: that is precisely what it is not. Clause 114 provides that protection shall be decided by the terms of the claim, and that is what Article 69 of the EPC decided. The two are absolutely on all fours, but because, as I sought to explain in moving the Amendment, different countries have interpreted Article 69 in different ways, the proviso to Article 69 had to be worked out in the 1960s and agreed upon by the signatories to the European Patent Convention.

I would ask the noble and learned Lord to be so kind as to consider before the next stage of the Bill, quite apart from the difference of opinion we may have regarding the words "as nearly as practicable", whether the words in the next line, "the corresponding provisions", can possibly mean that Clause 114 of this Bill corresponds to a protocol to Article 69, which is mentioned nowhere in the Bill. Perhaps I ought to leave the matter there. Clearly my own view is worth nothing at all on this, compared with those which have been put forward by the noble and learned Lord and others. If the noble and learned Lord would be so kind as to look at that point in addition to the "as nearly as practicable" point I shall feel that the Amendment has been worth moving.

The LORD CHANCELLOR

I think the noble Lord underestimates the value of his contributions to our discussions on these and other matters, if I may say so. I will look at the point, of course. As the protocol is an integral part of the Convention, I am still disposed to the view that the situation is covered by Clause 118(5), but certainly I will look at this again.

Lord BELSTEAD

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 114, as amended, agreed to.

Clause 115 agreed to.

Clause 116 [Existing patents and applications]:

The LORD CHANCELLOR moved Amendment No. 353A: Page 84, line 4, at end insert ("to").

The noble and learned Lord said: This is a minor drafting change and it does not affect the meaning of Clause 116. It may well be that the noble Lord, Lord Lyell, will agree that if the Committee approves of it, it makes superfluous Amendment No. 354, which is to the same effect. I beg to move.

Lord LYELL

I would certainly concur with the noble and learned Lord, and I am happy to support him.

On Question, Amendment agreed to.

5.50 p.m.

The LORD CHANCELLOR moved Amendment No. 354A: Page 84, line 6, leave out ("made") and insert("filed").

The noble and learned Lord said: Amendments Nos. 354A, 354B and 354C are drafting Amendments. The first reflects the wording of the 1949 Act; Amendment No. 354B corrects a printing error, while Amendment No. 354C paves the way for the reference in subsection (4) to the priority effect of an application made under the 1949 Act. I beg to move.

Lord LYELL

Once again, we are grateful to the noble and learned Lord and we believe that this Amendment clarifies the position.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 354B: Page 84, line 7, leave out second ("a").

On Question, Amendment agreed to.

The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)

If Amendment No. 354C is agreed to, Amendment No. 355 cannot be moved.

The LORD CHANCELLOR moved Amendment No. 354C: Page 84, line 15, leave out ("that Schedule") and insert ("the following provisions of this Act").

On Question, Amendment agreed to.

Lord LLOYD of KILGERRAN moved Amendment No. 356:

Page 84, line 16, at end insert— ("(4A) Any patent to which subsection (2) above relates and whose term had not expired on or before the appointed day shall have effect as if the term mentioned therein was twenty years, subject to the following conditions—

1. (a) any licence existing at the day on which this subsection comes into operation which has been granted for the term of the patent shall be treated as having been granted for the term as so extended if the licensee so desires;
2. (b) if the patent would apart from this section have expired on or before the day ending the period of 12 months after this subsection comes into operation, the patent shall during the period of the extension be deemed to be subject to the provisions of section 43 above as if an entry had been made in the register to the effect that licences under the patent are to be available as of right.

(4B) Where before the day on which subsection (4A) above comes into operation a person made in good faith effective and serious preparations to do an act which would constitute infringement of a patent by virtue only of the extension under subsection (4A) above, and it appears to the comptroller having regard to all the circumstances that it would be just to order the grant of a licence to that person, the comptroller shall have power to order the grant to that person of a licence under the patent on such terms as he thinks fit. (4C) The provisions of subsections (4A) and (4B) above shall not apply to any patent whose term was extended under the provisions of section 23 or 24 of the 1949 Act to a term of twenty years or more.")

The noble Lord said: We now come to a series of Amendments which deal with the term of patents. Your Lordships will recall that this Bill extends the life of all patents to 20 years. Under the Patents Act 1949, which is still in force, the term of a patent is 16 years, subject to the payment of fees. But there are two sections which enable a patentee to obtain an extension of 10 years, if the exploitation of his patent has been interfered with because of war difficulties, and if the court considers that the invention of the patent is of outstanding merit. It seems to me that anomalies will arise if only patents granted after the passing of this Bill will be extended to 20 years, and the object of these Amendments is that all patents granted and in force at the time when the Bill is passed should have their term extended to 20 years, instead of the normal 16 years, subject to certain safeguards for other firms which are in the industry with which the patent is concerned.

Your Lordships will see that if a patent is granted today, under the old Act it will have a life of only 16 years, although there is a paragraph in one of the Schedules which states that in special circumstances, if it is a meritorious invention, there can be a further extension of four years. That kind of procedure might cause certain anomalies, and therefore it seems that a simpler procedure would be, subject to certain safeguards, to extend to 20 years the term of all the patents that are in force when this Bill is passed.

In connection with Amendment No. 356, may I also refer to consequential Amendments Nos. 366, 371, 372, 375, 381, 382 and 383? Amendment No. 356 states that any patent, whose term had not expired on or before the appointed day shall have effect as if the term mentioned therein was twenty years". Paragraph (b) of the Amendment states that if the patent that had been granted under the 1949 Act would have expired before the period of 20 years, then there should be a licence available as of right to anybody who has been using that invention during an interim period of one year and, the patent shall during the period of the extension be deemed to be subject to the provisions of Section 43 of this Bill, which enables somebody to come along and say, "I have been using this invention. It will be quite intolerable if this extension interferes with my business, so I can have a licence as of right for this period".

Subsection (4B) of this Amendment gives protection to the person who may have been watching patents that have been on the register of patents under the 1949 Act, thinking that when the patent expires he will be able to go into that kind of business. It is a rather long subsection, which states that if, a person made in good faith effective and serious preparations to do an act which would constitute infringement of a patent by virtue only of the extension under subsection (4A) above, and it appears to the comptroller having regard to all the circumstances that it would be just to order the grant of a licence to that person, the comptroller shall have power to order the grant to that person of a licence under the patent on such terms as he thinks fit. As I have said, that is a safeguard for industrialists who consider going into a certain kind of business, and have made plans, before any extension has been given. Subsection (4C) of this Amendment is a minor matter. It states, in effect, that no patent shall have a life of more than 20 years. There is a clause in the Bill which gives power for the extension of a patent by four years, but that would not apply if the life of the patent had already been extended to 20 years.

Amendments Nos. 366, 371 and 372 are merely consequential, but perhaps I may speak to Amendment No. 382, which is entitled Extension of Term of Patents. This is a rather long clause, but its whole object is merely to safeguard the position of a patentee who has made, or will make, an application for an extension of the term of his patent under the 1949 Act, which gives the court, at its discretion, powers to extend the term for 10 years. It safeguards the position of a person who makes such an application under the present Act, and before the present Bill has been passed, and enables the court to give an extension of the term of the patent to not more than 20 years. This is really a consequential Amendment, to safeguard the interests of those patentees who have been operating under the present Patents Act. I beg to move.

6 p.m.

The LORD CHANCELLOR

I do not wish to truncate the debate, least of all to prevent the valuable contribution of the noble Earl, Lord Halsbury, but there have been important developments in regard to this matter about which I think noble Lords might like to know. They may, indeed, have the effect of shortening the debate.

As the noble Lord, Lord Lloyd of Kilgerran, has indicated, the Bill as drafted provides that the term of patents granted under the 1949 Act shall remain at 16 years. That policy was based on consultations held after the publication of the Banks Report, which recommended that in future the term of patents should be 20 years. However, in response to the urgings of some sectors of industry, particularly the chemical industry, very recently the Government have again referred the term of "old" patents to the Standing Advisory Committee on Patents, upon which, as noble Lords will know, industry, commerce and those who are professionally involved are all represented. As a result of that new round of consultation, during which I am happy to say that a fresh consensus emerged, it is intended that old patents, which have less than five years of their life to run, shall continue to have a term of 16 years, but that all other old patents shall have a term of 20 years, subject to safeguards for licensees and others who might be adversely affected by the increase in the term of patents which would normally have been expected to expire at the end of their sixteenth year.

It will be apparent that this new policy, to which the Government propose to give effect by amendments to the Schedules to the Bill which will be tabled on Report, closely resembles the proposals contained in the Amendments set down by the noble Earl, Lord Halsbury, and the noble Lord, Lord Lloyd of Kilgerran, except that I believe that their Amendment would give a 20-year term to all old patents. However, since the Government's policy on this point and on some details of the provisions for safeguarding the position of licensees and others is based on consultation with the industries that are directly and closely affected, and is further endorsed by the Standing Advisory Committee, I hope that noble Lords may feel that the proposed policy is acceptable and, indeed, is to be preferred.

If that generous view of the matter is taken by those who have raised the question, it will mean that, if noble Lords are so disposed, a number of Amendments might be withdrawn in the light of the assurance that I have given. As the noble Lord, Lord Lloyd of Kilgerran, has said, that assurance embraces Amendments Nos. 366, 371, 372, 375, 381, 382 and 383. It embraces also the Amendments which the noble Lord, Lord Lyell, the noble Lord, Lord Belstead, and the noble Lord, Lord Cawley, have put down in Amendments Nos. 373, 374, 376 and 377. Naturally, I shall be very willing to hear what noble Lords have to say. I apologise for intervening, but I thought that it might concentrate the debate if I indicated the Government's intentions, supported as they are by industry itself and by the Standing Advisory Committee.

Lord LLOYD of KILGERRAN

Before the noble and learned Lord sits down, is he able to explain what is the magic of the five-year period? It is patents that have another five years to run which will be extended. It seems to me prima facie that that period of five years does not have regard to the practical matters which industrialists, particularly in the chemical field, have to face.

The LORD CHANCELLOR

It is thought that if patents have a term of less than five years to run it is not unreasonable to adhere to the 16-year rule. That is the only explanation I can give.

Lord NORTHFIELD

Before my noble and learned friend finally sits down, in considering this point and reaching the offer he is making to the Committee, may I ask him whether a comparison with practice in Europe has been taken into account? It is very important that under the Community Patent Convention we should all be working on the same lines so that rights in one country can be asserted against rights in other countries. Therefore, is it not important to get that point right before finally we agree to what the noble and learned Lord is now proposing?

Lord HARMAR-NICHOLLS

Under the 1949 Act, patentees with less than five years to run on their patent would still be able, for special reasons, to obtain an extension if their case justified it. It would not mean that automatically they would be barred.

The Earl of HALSBURY

In supporting the Amendment of the noble Lord, Lord Lloyd of Kilgerran, I very much commend what he had in mind originally. I had something like it in mind, but I thought that his drafting was so superior to mine that, rather than pursue my own points, I added my name to his Amendment. I am very gratified to hear what the noble and learned Lord has said and that the Government have advance their thinking in the direction of doing justice to inventors. However, I am deeply disturbed at this magic five-year period which is going to divide inventors into first and second-class citizens. Those who got a patent on Monday or earlier have a 16 years' life, while those who got it on Tuesday or later have a 20 years' life. I believe that this Parliamentary democracy of ours is on a collision course with destiny, and that when the day comes when we have to defend it the fewer disgruntled people there are the better. I cannot see that what I might call the terminal five-year inventor can be other than disgruntled. I am an inventor—or was an inventor at one time. I should feel that Parliament was doing injustice between one citizen and another by dividing them in this way into first and second-class citizens.

Although it would be quite inappropriate to divide the Committee at this point on the issue, because we are hearing about it for the first time now, it is one about which I feel very strongly. I should like to take such action as would be compatible, at least, with raising the matter again on Report or at a later stage, when we have had time to think about it. I hope that the noble and learned Lord will think very carefully about whether or not we ought to divide these people into first and second-class citizens. This is the kind of issue upon which Governments suffer from characteristic faults. They are timid when they ought to be decisive and rash when they ought to be cautious. I am sure that this five-year terminal concept is just super-caution when decisiveness is called for. I do not believe that any harm whatever would come from putting all inventors on the same footing. I must leave it to the noble Lord, Lord Lloyd of Kilgerran, to say the last word on the subject, but I think that I shall be with him on whatever action he chooses to take.

Lord CAWLEY

Before the noble Lord withdraws his Amendment, there are, of course, first and second class licensees, too. The five-year rule in this case would be of great importance to licensees, because those who are at present licensees would not know what their position is. They might have bargained that the licence would come to an end and that they would cease paying royalties. They might have taken almost any industrial action to safeguard themselves. The fact that the patent under which they have a licence has been extended completely fortituously might embarrass them very seriously. Therefore one must think of the licensees as well as the patentees.

Lord HARMAR-NICHOLLS

My point was based upon that concept. There is the inventor and the licensee. Both are equally important in operating any good which may come from this. If this new Bill, when it becomes an Act, does not remove from the inventor who has special reasons for getting it the 10-year extension which has already been explained by the noble Lord, Lord Lloyd of Kilgerran, it may meet the point at a stage which is a reasonable compromise for both sides. However, if the effect of the Bill is to remove the 10-year extension, the 1949 Act period, then clearly it would be unfair to the licensee.

Baroness WARD of NORTH TYNESIDE

Having listened carefully, with very little knowledge, to what the noble Earl, Lord Halsbury, has said, when the noble and learned Lord was speaking and was making the first, second and third classes, he said that he had consulted all the people who ought to be consulted—at least that is what I understood him to say. Did the people whom he consulted agree to all the points that are now being made, despite the criticisms that have come from very experienced people?

Lord NORTHFIELD

My noble and learned friend has been asked some questions and no doubt he will be replying, but I should like to put to him one further point. Has account been taken of the fact that in 1919 when the terms of patents were extended from 14 to 16 years it was applied to all patents at that time? In other words, there was no attempt at that time to have first-and second-class, some extended and some not extended. I wonder why a few are now being excepted in the proposal in the way outlined by the noble and learned Lord, when in 1919 there was a clear across-the-board extension?

6.12 p.m.

Lord LYELL

I should like to support the noble Lord, Lord Northfield, in that regard. He has a particular point there, and I believe it links with the Amendment we are discussing. The noble Lord, Lord Lloyd of Kilgerran, has pointed out that there are safeguards in this Amendment to protect any person who might be contemplating taking any action in the light of a 16-year patent, but I wonder whether the noble and learned Lord will accept that we find it difficult to equate the safeguard described by the noble Lord, Lord Lloyd of Kilgerran, with what is perhaps intended to be the safeguard of the five year life—and the more than five year life—of the current 16-year patents. We wonder whether the division into young and not so young patents is the safeguard that the noble and learned Lord intends it to be.

The LORD CHANCELLOR

No doubt these are problems of complexity and difficulty, but I should like to begin by assuring the noble Baroness, Lady Ward, that we have indeed consulted with the industries directly affected, and especially the chemical industry, and also we have had the matter referred back to the Standing Advisory Committee. That Committee represents all the industrial interests affected and all the expertise in this field. What has emerged is, I suppose, to a slight extent a compromise. But what have emerged are the proposals which I have put to your Lordships. I think the clue to the five year-rule proposal—if I may so define it—is that it is thought that if this provision were put in there would be the least disturbance to the arrangements contemplated.

With regard to the intervention of the noble Lord, Lord Cawley, of course licensees are particularly concerned, but they would not be embarrassed by this. Indeed I should have thought they would be freed. Coming to some of the questions that I was asked, the noble Lord, Lord Harmar-Nicholls, raised a question about extensions for special reasons. The power of extension will remain, but I am bound to say that it will be reduced from a 10-year period to a four-year period in the light of the general benefit that will be gained from the new policy by the "not so old" patents, as the noble Lord, Lord Lyell, so attractively described them. I would not call them "young" patents but certainly not "old" ones.

My noble friend Lord Northfield asked me a question in regard to the European patent rules. My understanding is that it will be for each country to lay down its own rules, but the European rule will be a 20-year period. So what really remains at issue between us at the moment is the five-year problem. I will certainly look at this again and it may well be that all of us are prepared to look at it in the light of the new compromise—if that is the right way to describe it—which I have submitted to your Lordships. As I have said, it is not so much an emanation of a governmental mind; there is nothing political about this. It really is the best solution to the problem and the best advance with the best experts in the field whom we have consulted—until of course we heard the expertise in this debate. That is the advice we have received. Therefore, I will undertake to look at what has been said, and perhaps in view of its importance we may return to this matter again at the Report stage.

Lord HARMAR-NICHOLLS

I should like to emphasise one point arising out of the reply made by the noble and learned Lord. I think I am voicing the opinion of the people who have been "lobbying" me on this point: I cannot see the merit or perhaps the fairness of reducing the 10-year period for extension to four years, if before this Bill was conceived the general feeling was that, if it could be justified that a 10-year period of extension was right, it would be provided.

There is no suggestion that it would be 10 years, the amount that could be given could be even less. If the maximum allowed is reduced from 10 years to four years, then the noble and learned Lord will be removing part of the rights that were previously possessed by a minority of inventors. I should have thought that, from the point of view of creating the sort of atmosphere that would allow his very sensible submission that what he is suggesting comes from the people who understand this matter and who are to be affected by it, it would remove the one or two—and there may not be more than one or two—who would feel that they had something taken away from them.

Lord DAVIES of LEEK

I should like to declare a slight interest in the pharma- ceutical industry and to point out that many people will be aware that the Government at least have made an effort to clarify this very difficult problem. Consequently, I agree entirely that we should look into this a little deeper and perhaps obtain greater clarification when we reach the next stage of the Bill. I am grateful for the efforts made by the noble and learned Lord and his colleagues to obtain some clarification of this position.

The LORD CHANCELLOR

I will certainly look into the point just made by my noble friend and also that made by the noble Lord, Lord Harmar-Nicholls. Obviously what we want in this matter is a consensus on the part of all those affected. That is what this whole operation is about and we will look at it again to see whether we can make some adjustment to achieve a consensus which, I may say, already exists within the Standing Advisory Committee. If we can extend it to embrace your Lordships as well, we shall be all the happier. It may be possible, but at the moment I do not know.

Lord LLOYD of KILGERRAN

I am grateful to the noble and learned Lord for his expression of sympathy with the Amendment. He has said that negotiations have been going on and that the expert committee has advised what he refers to as the five-year plan. But I wonder whether the noble and learned Lord is quite up to date with the further negotiations that are going on? He referred to the chemical industry: I have in my hand at the moment a letter written by the Imperial Chemical Industries Limited dated 22nd February, addressed to the Secretary of State in the other place, the right honourable gentleman, Mr. Edmund Dell, which refers to my proposal and also to the five-year proposal of the expert committee.

There is a suggestion by the representatives of the deputation from this large sector of the chemical industry that perhaps, in all the circumstances, a two-year plan would be more appropriate than a five-year plan. Also, I have been advised that the pharmaceutical industry still considers that the Amendments I have put forward would be the proper ones to safeguard their interest, not only in this country but internationally, by extending all the patents to 20 years, subject to the safeguards which I have adumbrated. But, in view of the sympathy expressed by the noble and learned Lord and the fact that the matter is to be looked into, I beg leave to withdraw the Amendment.

The Earl of HALSBURY

In associating myself with the request made by the noble Lord, Lord Lloyd of Kilgerran, for leave to withdraw the Amendment, I would ask the noble and learned Lord to consider one factor among all the others he has promised to consider. The concept of an inventor without a licensee is a viable concept but you could not have licensees without inventors. Inventors are the creative factor in this situation, and it is they whose arrangements ought not to be interfered with, rather than licensees. If the noble and learned Lord will just remember that one, I will be very happy to withdraw.

Amendment, by leave, withdrawn.

6.20 p.m.

The LORD CHANCELLOR moved Amendment No. 356A: Page 84, line 20, after ("but") insert (",notwithstanding anything in section 5(3) above,").

The noble and learned Lord said: It may be convenient also to consider with this Amendment, if noble Lords opposite agree, Amendment No. 357. Clause 116(4) provides that an application under the new Act may claim priority from an application accompanied by a provisional specification filed under the 1949 Act but in respect of which a complete specification has not been filed before the appointed day. But since there is nothing in the 1949 Act corresponding to Clause 5(3) of the Bill, which nullified the priority effect of an earlier application, if there has been filed an even earlier application disclosing the same invention, it is necessary to provide that in the case of a new Act application relying for priority on a 1949 Act provisional specification priority shall not be subject to the nullifying effect of Clause 5(3) of the Bill. This is what Amendment No. 356A does.

If any noble Lord did not understand all that I have just read out, I fully, whole heartedly and entirely sympathise with him, but perhaps noble Lords will be good enough to look at what I have sug- gested from my notes. Amendment No. 357, which was tabled by noble Lords opposite, would have achieved the same result in a slightly different way, and I am grateful to them for drawing our attention to the point. I hope that after they have had an opportunity of studying that which I have unashamedly read out they may feel reasonably content. I beg to move.

Lord LYELL

I saw the noble and learned Lord looking straight at me as he pointed out those who might not have understood what he was saying.

The LORD CHANCELLOR

If I had had a mirror I would have reflected my own face.

Lord LYELL

I remember the tale of the mirror which was asked, and indeed replied, who was fairest—or should I say cleverest—of them all. But certainly the noble and learned Lord, if he was looking in my direction, hit the target first time, because I found it just a little difficult to follow what he was driving at. However, immediately I was gratified by the fact that he said he was grateful that we had tabled Amendment No. 357 and he understood that our Amendment No. 357 had been met by Amendment No. 356A. I believe that, certainly if the noble and learned Lord says that at this stage, and therefore I would not wish to proceed further with Amendment No. 357 when we come to it. There is a point that I hope we will be able to cover under Amendment No. 356B. Nevertheless, I am very grateful for the amount of effort and brain-power the noble and learned Lord has put into explaining Amendment No. 356A, and indeed we shall look at his words with great attention.

On Question, Amendment agreed to.

The DEPUTY CHAIRMAN of COMMITTEES (Lord Derwent)

I must inform your Lordships that if Amendment No. 356B is agreed to I will not be able to call Amendment No. 357.

The LORD CHANCELLOR moved Amendment No. 356B: Page 84, line 22, leave out from ("Act") to end of line 23 and insert ("if the date of filing the abandoned application falls within the period of fifteen months immediately preceding the filing of the later application").

The noble and learned Lord said: This Amendment clarifies the status of provisional applications made under the 1949 Act and in being on the appointed day. They cease to exist on that day because they are only provisional applications, but they may, of course, be used to found the priority of new Act applications. I beg to move.

Lord LYELL

We are once again grateful to the noble and learned Lord. It seems that our efforts in Amendment 357 are indeed met by the purpose of this Amendment, No. 356B. My noble colleague Lord Belstead and I had some questions to ask about the abandoned application. The brief explanation that the noble and learned Lord has given has certainly satisfied us for the moment, and I think probably for the longer term. However, we shall consult and look at the noble and learned Lord's words with attention once again, and we thank him for his explanation.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 357C: Page 84, line 24, leave out subsection (5) and insert— ("(5) Schedule 3 to this Act shall have effect for repealing certain provisions of the 1949 Act.")

The noble and learned Lord said: This is a purely paving Amendment for Amendment No. 381B, which proposes deletion of the existing Schedule 3 and insertion of an entirely new Schedule dealing with repeals of provisions of the 1949 Act. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 357A:

Page 84, line 28, leave out subsection (7) and insert— ("(7) In Schedules 1 to 4 to this Act "existing patents and applications" means any patents and applications mentioned in subsection (2) above and expressions used in the 1949 Act and those Schedules have the same meanings in those Schedules as in Act.").

The noble and learned Lord said: This Amendment paves the way for Government Amendments to the Schedules (which relate to the effect of the Bill on 1949 Act patents and applications) referring to existing patents and applications. The Amendment also makes clear that where an expression is used in the Schedules and also in the 1949 Act it shall have the meaning given to it in the Act. In other words, in relation to 1949 Act patents and applications the 1949 Act meanings shall apply and not the meanings of the Bill, in so far as they may differ from those of the 1949 Act. I beg to move.

On Question, Amendment agreed to.

On Question, Whether Clause 116, as amended, shall stand part of the Bill?

The LORD CHANCELLOR

May I intervene briefly to deal with one matter which is convenient to be dealt with on the Question, Whether Clause 116 shall stand part. Since the clause that we have been discussing is concerned with the future of patents granted under the 1949 Act, I think I should rectify an error which I made during the debate on Second Reading. Your Lordships may remember that the noble Lord, Lord Cawley, asked me whether there would be a subsequent Bill to consolidate the 1949 Act and this Bill, and I then replied without hesitation that there would be such consolidation. I was relying, in making that observation, on a statement in the Law Commission's Eleventh Annual Report to the effect that a consolidation Bill was in the course of preparation. I now understand that although a consolidation Bill was at one time considered, that proposal was subsequently dropped, and it is not now the intention to proceed with one. I therefore apologise for unintentionally and innocently misleading the House on this matter.

Perhaps I should explain why there has been a change of mind on this. It was always the intention to keep alive at least, the provisions of the 1949 Act about the processing of applications and many related provisions, and it had originally been thought that it would be useful to consolidate the surviving provisions. But, in fact, fewer of the 1949 provisions will survive than was at first envisaged. Those that do survive have been little amended, and although the Bill may amend them further the Amendments are not likely to be extensive. Practitioners already know the surviving provisions very well—the noble Lord, Lord Lloyd of Kilgerran, no doubt can recite every one in his sleep. However, I do not think that consolida- tion would help them in their labours. Indeed, changing the numbering of sections, which would be inevitable on consolidation, would, I think, cause confusion. It has therefore been thought better to leave the unrepealed portions of the 1949 Act as they are and to wait for them to die a natural death on the expiry of all the patents granted under that Act. On reflection, that seems to be a sensible course to adopt, but I again apologise to the House for having misled it on Second Reading.

Lord CAWLEY

I am very grateful to the noble and learned Lord. On second thoughts, I think that he is right and that my idea of consolidation would not quite work.

Clause 116, as amended, agreed to.

Clause 117 agreed to.

Clause 118 [Interpretation.]:

6.31 p.m.

The LORD CHANCELLOR moved Amendment No. 357B: Page 84, line 37, leave out ("as published") and insert ("on the first occasion on which it has a date of filing").

The noble and learned Lord said: The Bill as drafted makes designation of the United Kingdom at publication the crucial date, both in relation to European and international applications. In fact, an application is to have some effects—for example, it can form the basis for a claim to priority—even if the designation of the United Kingdom is withdrawn between filing and publication. Under the Conventions it is not possible to add designations subsequently. Accordingly, it is more correct for the Bill to make designation at filing the basic test. If the United Kingdom designation is later withdrawn the application will cease to have certain effects. I beg to move.

On Question, Amendment agreed to.

Lord IRONSIDE moved Amendment No. 358:

Page 85, line 6, at end insert— (""computer program" means one or more recorded symbols or signals representing a sequence of instructions which is capable of causing a computer to perform a useful function;").

The noble Lord said: I believe this definition of a computer program to be a necessary part of the Bill. It is not a nitpicking Amendment because there is a genuine need for this definition. I have studied the Amendment to Clause 1(2) which was moved by the noble Lord, Lord Oram, and I have closely studied Hansard to see what the noble Lord said, as I was not in my seat at the time. It is quite clear that he touched upon the points that I wish to make in moving this Amendment, and his Amendment to Clause 1 goes some way at least towards recognising the problem. However, assuming that one understands the term, "computer program", I do not think that, by nesting up one line the phrase "a program for a computer", the effect of this subsection on this wording is materially altered or, for that matter, altered in the way in which the noble Lord obviously felt it should be altered.

The exceptions in Clause 1 are not listed in any way that expresses the intentions of the European Patent Convention. I think that the noble Lord, Lord Oram, made it clear to the Committee that the Bill incorporates only what is necessary for the purpose of an Act of Parliament to accede to the Convention. We all understand and accept that. The noble Lord's Amendment undoubtedly meets the criticism made on Second Reading, particularly the criticism of the noble Lord, Lord Alexander of Potterhill, that the phraseology should more closely follow that of the European Patent Convention. However, I do not think that that is sufficient.

I have consulted International Computers Limited, the International Telephone and Telegraph Company Limited and the British Electrical and Allied Manufacturers' Association Limited of which GEC for instance is a member, on this matter. They all believe that the intentions of the European Patent Convention must be clearly expressed in the Bill in order to distinguish between intellectual activity covering flowcharts, programs written in high-level programming languages, coded instructions and so forth, all of which is symbolic, and engineering activity which is producing adaptive and programmed hardware which is represented by logic circuits, wiring, pathways in a semi-conductor and so on, which is not symbolic. In the words of the European Patent Convention, the latter is "susceptible of industrial application". The Bill uses the words "capable of" in Clause 1(1) which is, as far as I can see, a materially different way of putting the matter.

The present position in, for example, the United States, is that a decision in the courts has granted patents for two inventions the novel features of which were embodied purely in the software aspect of a piece of hardware. The International Association for the Protection of Industrial Property has come out in favour of patents for software, and the climate of opinion has somewhat changed in this respect since the Banks Committee reported. The basic reason for this is that computers now incorporate hardware which introduce a sense of learning and adaption which is unrelated to symbolic instruction. That is clearly brought out as being a very important matter in the four-year programme for the development of informatics in the European Community.

I should like to quote a short statement from this four-year programme. The Commission state: The mini or microcomputer moreover is becoming indistinguishable from many other kinds of so-called 'intelligent' terminals-devices for input and output incorporating some kind of specialised or general processing and memory power.… The explosive development of a great variety of intelligent devices owes much to the development of electronic component technology. That is a very important fact. Later on in the same document the Commission goes on to show and consider what a computer program in fact is. This Amendment simply defines the computer program as expressed in the European Patent Convention and does not alter the effects of Clause 1(2). It would enable electronic circuit designers, on whom this country so greatly depends, to seek adequate protection for their inventions involving adaptive devices. Nor does it destroy the hopes of a programmer for some other form of intellectual right.

A memorandum sent to the comptroller of the United Kingdom Patent Office by the London Chamber of Commerce and Industry in January 1972 referred to the proposed exclusion of computer programs from patentability in the draft of the European Patent Convention. It pointed out that there was no generally accepted definition of the term and that use of such a broad term might lead to exclusion of otherwise patentable subject matter simply because some form of programming was a component part of the subject matter.

The World Intellectual Property Organisation, which is a United Nations organisation, published draft model provisions for a national law on the protection of computer software on 28th January 1977. This includes a definition of a computer program. The draft is based on the work of a so-called advisory group of non-governmental experts. This group includes representatives of computer manufacturers, users, patent and copyright lawyers and academics with Government representatives as participating observers. There were many views as to the most suitable definition, but there were no suggestions at any time that the expression "computer program" was so well understood that no definition was necessary.

I hope that the noble and learned Lord is susceptible to my arguments. I hope that the whole House will agree that he is very capable but I do not think that anyone for one moment would consider that he is generally susceptible. I hope that he is at least susceptible to my arguments. I hope that the wording of my definition is also acceptable. If it is not, I hope that the noble and learned Lord can look at this matter again and perhaps introduce at a later stage a suitable Amendment, in which case I should certainly be happy to withdraw my own Amendment. I beg to move.

6.40 p.m.

The LORD CHANCELLOR

I am certainly sympathetic to the intention of this Amendment which embarks on a field about which I cannot pretend to any capability at all; namely, this difficult field of electronics in which the noble Lord obviously has considerable expertise. As I understand it, the purpose of the Amendment is to prevent the term "computer program" in Clause 1(2)(f) of the Bill being interpreted so widely as to include certain electronic devices and others which ought to be patentable. As I understand it, that is the purpose of the Amendment, and the point was raised by the noble Lord on Second Reading.

The noble Lord readily conceded that we tried in the Amendment that was put down to Clause 1(2) to go some of the way to meet what he had in mind. The Amendment that was put down, to which your Lordships agreed, has the effect of causing the subsection to follow the European Patent Convention in including "computer program" in a list which reads: … a scheme, rule or method for performing a mental act, playing a game or doing business". It would seem from that grouping that the term must be construed as covering items of the same nature as the other items in that list.

The proposal of the noble Lord departs from the Convention in attempting an exhaustive definition of the term, "computer program". As I understand it, that would take a course quite different from that which the other participants in the Convention think desirable or necessary. I confess that at the moment I feel that what has already been done is about as far as we can go. Various matters have been raised by the noble Lord in the discussion this evening, and experiences and statements from other highly eminent sources have been cited. All I willingly undertake to do is to look at what has been said and look at this again. If we could have kept in line with the European Patent Convention language, and that protected the kinds of interests and initiatives that the noble Lord has in mind, I should have been happy with that course. However, I am willing to look at it again in the light of what the noble Lord has said.

Lord IRONSIDE

I should like to thank the noble and learned Lord for what he has said. So far as I can see in the clause, the list of exclusions is merely a string of items in no particular order because this is the way the Bill has been prepared, and it has not been prepared in exactly the same way as the European Patent Convention. However, I should like to thank him for agreeing to look at this matter again. The most important point here is that, in the computer industry in Europe, everybody is trying to strengthen the technological base against the United States' efforts in the computer industry. Therefore, anything that can possibly be done to help the patentees of electronic circuits will be welcome in this Bill and would give them the degree of protection that they would need. I beg leave to withdraw this Amendment.

Lord DAVIES of LEEK

Before the noble Lord sits down, may I ask him a question, knowing very little about this subject? My first meeting with this kind of idea was with music. There was a similar device nearly 80 years ago on the old pianola. Does the noble Lord envisage a period where we can programme a computer to get a tune out of the old fashioned pianola much better than we did? The roll on a pianola could be patented 40, 50 or 60 years ago. When the Lord Chancellor mentioned music, I hoped that music would be included in this, because it is within the bounds of possibility for a computer to be programmed to produce first-class sonatas, and everything else.

Lord IRONSIDE

In answer to the noble Lord, the pianola was programmed by what was virtually a punched card, so far as I remember. Of course programmes can now be written to play electronic music, and that kind of thing. I do not think that I should like to predict the future very far, except to say that artistically speaking it may well be possible at some time in the future to write a book, or compose music, in such a way that it is immediately accepted by a computer and, as you might say, transmuted into art, music, or whatever it is. However, I should not like to predict the future.

The Earl of HALSBURY

In associating myself with the withdrawal of this Amendment by the noble Lord, Lord Ironside, may I ask the noble and learned Lord to ask his advisers in this matter to bear in mind that when you dial a telephone number you are generating a signal which is obeyed by the telephone exchange in exactly the same way that a computer obeys its instructions, except that it does not carry out arithmetical operations in the signal generated but merely regards it as an instruction to connect one subscriber to another subscriber. The whole of this is done with the mechanical action of your finger and the switchgear in the telephone exchange. What the noble Lord and I seek to exclude from the operation of this Bill is purely mechanical and electrical engineering hardware, and leave "computer program" to stand as the symbolic recorded signal which is characteristic of computer inputs.

The LORD CHANCELLOR

I am grateful for that information, which has helped to clarify matters in my mind a good deal.

Amendment, by leave, withdrawn.

6.47 p.m.

The LORD CHANCELLOR moved Amendment No. 358B: Page 86, line 9, after ("of") insert ("or applicant for").

The noble and learned Lord said: With this Amendment, it may be convenient to speak to Amendments Nos. 358C and 358D. These are purely drafting Amendments to make it clear that the definition of an "exclusive licence" applies equally to such licences granted by applicants in respect of applications as to those granted by proprietors in respect of patents. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 358C: Page 86, line 11, after ("proprietor") insert ("or applicant").

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 358D: Page 86, line 12, leave out ("patented invention") and insert ("invention to which the patent or application relates").

On Question, Amendment agreed to.

6.50 p.m.

Lord LYELL moved Amendment No. 359: Page 87, line 5, leave out (""prescribed" and").

The noble Lord said: This, we hope, deals with a simple matter and we look forward to guidance from the noble and learned Lord the Lord Chancellor. As the Committee will see, we simply wish to remove the words "prescribed and". If noble Lords will turn to Clause 112 they will find that the rules which are mentioned in Clause 118 are defined, but my noble friends and I cannot find any definition of the prescribing which is supposed to be defined in this provision and we therefore seek clarification from the noble and learned Lord, if any is available.

The LORD CHANCELLOR

It is true that Clause 112 does not contain a specific definition of "prescribed", and so at first sight it might be thought that the Amendment is helpful. However, it will be seen that Clause 112(2) contains numerous references to "prescribing" and "prescribed"; in paragraphs (a), (e),(f)and particularly (j), which empowers the rules to prescribe anything authorised or required "to be prescribed by the Act." The definition is therefore required to pick up all those diverse references. I do not think it does any harm; let it stay in.

Lord LYELL

Once again the noble and learned Lord has made a particularly heart-rending plea. I had the impression of a fairly lengthy small dog chasing its own tail, but I hasten to add that I would not compare the noble and learned Lord with such a small beast. I, too, had noticed the use of this expression in the provisions to which he referred, and I am sure that he and others of his profession are used to defining such words every day and even through most of the night; I believe the noble and learned Lord referred to the noble Lord, Lord Lloyd of Kilgerran, defining such matters in his sleep. However, laymen like myself have doubts about such matters, and that is why the Amendment was tabled. In view of the noble and learned Lord's plea, I willingly withdraw it at this stage.

Amendment, by leave, withdrawn.

6.53 p.m.

Lord LYELL moved Amendment No. 360: Page 87, line 10, after ("and") insert ("without prejudice to the generality of the foregoing").

The noble Lord said: This is only slightly more complicated than the last Amendment with which we were dealing, and the Committee will see the words which we seek to insert into Clause 118, words which are included in the interpretation of "publishing" in Section 101 of the 1949 Act, which is governing patent law at the moment. May we be told why these words have been omitted from this Bill?

The LORD CHANCELLOR

I confess that the purpose of the Amendment was not clear to me, but in view of what the noble Lord, Lord Lyell, has said I will certainly consider his observations and, on that undertaking, perhaps he will not press the Amendment.

Lord LYELL

Certainly, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The LORD CHANCELLOR moved Amendment No. 362:

Page 87, line 31, at end insert— ("(2A) References in this Act to an application for a patent, as filed, are references to such an application in the state it was on the date of filing.").

The noble and learned Lord said: This Amendment clarifies a point on which the Bill could be thought to be ambiguous, in that under Clause 12 an application may be accorded a date of filing before it complies with all the conditions of an application under Clause 11. Further, under Clause 12(3) and (4) an application may be treated as having a date of filing earlier or later than the actual date on which it was filed. The Amendment is required because various provisions of the Bill, notably Clause 70(1)(d) on revocation, and the new clause which has been inserted after Clause 72, impose as a test the matter disclosed in the application as filed. It is necessary to define what this expression means and the intention of the Amendment is to make sure that it links up with Clause 12, the date of filing applications.

On Question, Amendment agreed to.

6.55 p.m.

The LORD CHANCELLOR moved Amendment No. 362A: Page 88, line 9, leave out from beginning to ("76") and insert ("1(1) to (4), 2 to 4, 11(3), (5) and (6), 58, 67, 70(1),").

The noble and learned Lord said: This Amendment adds Clause 70(1] to, and removes Clause 1(5) from, the list of provisions in Clause 118(5) which are to have the same effect as the corresponding provisions of the European and Community Patent Conventions and the Patent Co-operation Treaty. It is clearly right that the provisions contained in Clause 70(1) should be included in that list. They set out the grounds on which United Kingdom patents, including European patents designating the United Kingdom, may be revoked. These must correspond with the provisions of Article 138 of the European Patent Convention, which specifies the grounds upon which European patents may be revoked. That Article makes it plain that the grounds specified in it are the only grounds upon which revocation is to be permitted.

Amendment No. 363 set down by the noble Lords opposite also seeks to add to the list, among other provisions, that contained in Clause 70(1), so it seems that we are in agreement so far. It is equally clear that Clause 1(5), which is concerned with the powers of the Secretary of State has nothing to do with the Conventions and should not, therefore, be included. I therefore hope that this deletion is equally acceptable to noble Lords opposite and that the Amendment can be accepted.

The DEPUTY CHAIRMAN of COMMITTEES (Lord Derwent)

I have to inform the Committee that if this Amendment is agreed to, I will not be able to call Amendment No. 363.

Lord BELSTEAD

As the noble and learned Lord the Lord Chancellor has explained, the effect of the Amendment is that the clauses included in Clause 118 are as nearly as practicable to have the same effects in the United Kingdom as the corresponding provisions of the EPC, the CPC and the PCT, and it is true that the Government and my noble friends and I have been trying to do the same thing in the sense that we felt that the existing provisions as set out in Clause 118 were not quite comprehensive enough. As the noble and learned Lord said, we there part company. I would not in any way wish to critise what he said about the merits of his Amendment, which is No. 362A, but I would draw to the attention of the Committee the merits of our Amendment, No. 363.

Perhaps the noble and learned Lord was misled by referring to Clause 1(5) which our Amendment, he felt, would write into the Bill. In fact, that would not be the effect of our Amendment; our Amendment is designed to include Clause 5, not subsection (5) of Clause 1. If reference to Clause 5 is to be omitted here, presumably then the Bill will be saying that rules about priority under the Bill will be different from the rules about priority in Europe, and that seems extraordinary considering the absolutely crucial importance of the effect of priority.

That is one major difference of opinion, but there is another minor one. We have inserted reference to Clause 11(7), which has been omitted from the Government Amendment. That refers to abstracts and all I would ask—if that is the reason why the effect of Clause 11(7) is to be different from the European Convention—is why that is to be the case. Both the Government and my noble friends and I have included references to Clause 70 and we are particularly pleased to see that; we always understood that Clause 70 was deliberately drafted to conform with Article 138 of the EPC and certainly the Government Amendment meets us in that way. There are, therefore, just those two differences of opinion and we should be grateful if it were possible for the noble and learned Lord to deal with them.

The LORD CHANCELLOR

The noble Lord is quite right. When I spoke of Clause 1(5), that was clearly a mistake. Clause 5 is the relevant reference in Amendment No. 363. The difficulty we see about Clause 5 is that, in our opinion, the provisions of Clause 5 achieve the same result as the Convention provisions on priority but, since the structure of our provisions is different from the Convention structure, it would be inappropriate to talk of the two sets of provisions "corresponding". Our provision looks backward from the date of filing the application in suit to the earlier application from which priority is claimed. The European provisions in Articles 87 to 89 of the EPC are prospective; that is, they look forward in the sense that they grant a right exercisable in the 12 months after filing the first application in which to file a subsequent application in respect of the same invention claiming priority from the date of the first. Furthermore, in any event, it is Clause 2 which gives effect to the concept of priority date and that clause is included in the list of provisions in Clause 118(5) which are stated to correspond to the provisions of the Conventions. So, in our view, the Bill already achieves the result which this Amendment seeks.

As to Clause 11(7), that subsection contains procedural provisions enabling the comptroller to reframe the abstract, so it would be inappropriate to declare that these provisions have the same effect as does Article 85 of the EPC. It is true that the Bill, as printed, did not fully implement Article 85 in relation to European patents and we are grateful to noble Lords for bringing this point to our attention. Amendment No. 294K to Clause 74, which we dealt with aeons ago and which the noble Lord, Lord Lyell, referred to, dealt with it. Those are the reasons for the differences between us. I do not pretend that they are simple matters; but we certainly gave consideration to this and came to the view that what we have set out in our Amendment probably meets the need of the situation better.

Lord BELSTEAD

I am grateful to the noble and learned Lord for the explanation that he has given. I believe I understood him when he explained that because the provisions of Clause 5 are, in a sense, retrospective, whereas the provisions of the corresponding Articles dealing with priority in the European Patent Convention are prospective—they talk about 12 months ahead—these two sets of provisions cannot be said to be corresponding.

As the noble and learned Lord was speaking, my mind went back to an earlier Amendment—Amendment No. 353—when I taxed the noble and learned Lord with being able to argue that something is corresponding when it does not even appear in the Bill. That was the Protocol to Article 69 which the Government are busily suggesting to the Committee through the skilful words of the noble and learned Lord corresponds to Articles in European Conventions when it does not even appear in the Bill. I feel that the argument that the noble and learned Lord has used this evening on the present Amendment strengthens the case for putting in something to do with the Protocol to Article 69 of the EPC. However, that is another matter. I am grateful to the noble and learned Lord for explaining why Clause 5 is left out of the Government's Amendment and particularly for drawing my attention to Clause 2 to which I made no reference at all, a matter for which I must apologise. The noble and learned Lord quite rightly pointed out that it is Clause 2 which gives effect to the provision of priority date. I should like to read what the noble and learned Lord has said and also his explanation of the reason for the exclusion of Clause 11(7) from the Government Amendment.

On Question, Amendment agreed to.

7.5 p.m.

Lord BELSTEAD moved Amendment No. 364: Page 88, line 10, leave out ("are") and insert ("have been").

The noble Lord said: Perhaps it may be for the convenience of the Committee if I speak also to Amendment No. 365. It would seem desirable that the clauses mentioned in line 9 of page 88 should have exactly the same effect as the corresponding provisions of the EPC, the CPC, and the PCT, even if the wording is not exactly the same effects, if not the same wording, ment's previous Amendment which has just been agreed adds some more clauses to the list but, for reasons which were given when we were discussing that Amendment, I feel that there is reason to believe that the total list now should have the same effects if not the same wording as the relevant provisions in the European Conventions and Treaties. I am therefore moving this probing Amendment to find out the real meaning.

Lord DAVIES of LEEK

May I ask to which Amendment the noble Lord is speaking?

Lord BELSTEAD

I have moved Amendment No. 364 and I am speaking also to Amendment No. 365. In speaking also to the latter Amendment, the case which I am making is that, though it may be that the words should not be exactly the same in the clauses which are set out in line 9 as the corresponding provisions in the European Conventions and Treaties, I think that there should be the same effect. If that is not the case, perhaps the Government can tell us a little more as to why they feel that this should not be so. I beg to move.

The LORD CHANCELLOR

Amendment No. 364 raises an interesting little point. Strangely enough, it is customary for Acts of Parliament to speak as from the present. It may be true that the Bill was framed in draft before your Lordships' House ordered it to be printed or considered it, but, happily, it is Parliament which makes the law and not the draftsman, whom I bless practically every day of my Ministerial life! It would be quite wrong to depart from that principle. Accordingly, it is right for the Bill to say that in passing the Bill it "is" framed in a certain manner and "is" to be interpreted in a certain fashion. I hope that noble Lords will accept that piece of theology in relation to drafting.

On Amendment No. 365, we come to the interesting wording, "as nearly as practicable", which clearly has not many amateurs, as the French say, in the Committee. This Amendment would make the clause declare that certain provisions of the Bill are to have identical effect to those of the Conventions. But the words which the Amendment seeks to delete are taken straight from the Resolution on the Adjustment of National Patent Law annexed to the Community Patent Convention. "Practical" is a term of art, so used in that Resolution. It is a strong word. It does not mean "more or less" or "roughly". It means, as I ventured to say earlier, "as closely as can possibly be achieved" consistent with the fact that drafting styles differ between the United Kingdom and Europe. The fact that the corresponding provisions of the Conventions necessarily contain different cross-references and refer, for example, to the "contracting States" as a whole when we are concerned only with the United Kingdom is a good illustration of our difficulty.

Perhaps I could take an example to show why absolute conformity cannot be achieved. The Committee might care to look at Clause 58 as an illustration. That corresponds to Articles 29 to 31 of the Community Patent Convention, but it refers in certain cases to acts done within the United Kingdom, whereas quite clearly the Convention refers to acts done within the Contracting States. If the words "as nearly as practicable" were deleted, it would mean that in our legislation we would have to put "contracting States" instead of "the United Kingdom." We are already having certain difficulties with our dear neighbours across the Channel, with France, and I am quite sure that they would not be at all enthusiastic for us legislating as to infringement in France; but that is just an illustration of the kind of difficulty we are in. In my view, the words strengthen the clause and will direct the court to the substance of the matter and allow it to ignore incidentals. Accordingly, I hope that the Amendment will not be pressed.

Lord BELSTEAD

I am grateful to the noble and learned Lord for his explanation and his reply to both Amendments. As to the first one, I accept absolutely what the noble and learned Lord has said. It seems particularly apposite this evening that the present tense should be used. Indeed, the Parliamentary draftsman seems permanently to be with us. I do not make any apology for speaking to Amendment No. 365, to which I was also referring, because this is in fact the first time that there has been a chance to get from the Government Front Bench a substantive reply as to exactly what the words are supposed to mean, and it will be interesting for people to read what the noble and learned Lord has said as to the interpretation of the words. I beg leave to withdraw the first Amendment.

Amendment, by leave, withdrawn.

Clause 118, as amended, agreed to.

Clause 119 agreed to.

Clause 120 [Short title, extent, commencement and repeals]:

The CHAIRMAN of COMMITTEES (Lord Aberdare)

I should point out that if Amendment No. 365C is agreed to I cannot call Amendment No. 365A.

7.13 p.m.

The LORD CHANCELLOR moved Amendment No. 365C:

Page 88, line 40, leave out subsection (3) and insert— ("(3) For the purposes of this Act the territorial waters of the United Kingdom shall be treated as part of the United Kingdom. (3A) This Act applies to acts done in an area designated by order under section 1(7) of the Continental Shelf Act 1964, in connection with the exploration of the sea bed or subsoil or exploitation of their natural resources, as it applies to acts done in the United Kingdom.").

The noble and learned Lord said: Clause 120(3) requires an Order in Council to apply the provisions of the Bill to United Kingdom territorial waters and, for certain purposes, to an area designated by order under Section 1(7) of the Continental Shelf Act 1964. The 1949 Act has been considered to apply to United Kingdom territorial waters and, so far as an area designated under the Continental Shelf Act is concerned, a Community patent will have effect in such an area, by virtue of Article 97(8) of the Community Patent Convention. For these reasons it is desirable that the Bill should apply directly in the two cases concerned without the necessity for an Order in Council. The Amendment effects this change. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 365G: Page 89, line 3, after ("Act") insert ("(except sections 73(5), (6) and (8), 74(5) and (7) and this subsection)").

The noble and learned Lord said: This Amendment takes the place of Amendment No. 365B, a Government Amendment which has been withdrawn. In explanation of Amendment No. 365G I should say that Clause 120(4) gives the Secretary of State power to make commencement orders. This subsection does not therefore itself require a commencement order, but enters into force on Royal Assent.

The Amendment also refers to certain subsections of Clauses 73 and 74. These clauses have been considerably amended earlier in the Committee stage, but the subsections now referred to are those which relate to the translation of European patents and applications. These are provisions which it may never be necessary to invoke, and for this reason the power to bring them into operation is left to rules. As a consequence, the rule-making power, which is contained in Clause 73(8) and Clause 74(7), will itself come into operation on Royal Assent. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 365D: Page 89, line 7, at beginning insert ("Subject to the provisions of Schedule 4 to this Act,").

The noble and learned Lord said: This Amendment makes it clear that the enactments repealed by Schedule 5 nevertheless remain in operation so far as is necessary for the purely transitional provisions of Schedule 4. I beg to move.

On Question, Amendment agreed to.

Clause 120, as amended, agreed to.

Schedule 1 [Application of 1949 Act]:

7.17 p.m.

The LORD CHANCELLOR moved Amendment No. 365E: Page 90, line 6, leave out from ("applications") to end of line 8.

The noble and learned Lord said: It may be convenient to consider with Amendment No. 365E, Amendments Nos. 365F and 370C. Amendments Nos. 365E and 370C are purely drafting Amendments. Amendment No. 365F is intended to correct the minor inaccuracies which exist in paragraph 1(2) of Schedule 1. I beg to move.

On Question, Amendment agreed to.

The CHAIRMAN of COMMITTEES

I should point out that if Amendment No. 365F is agreed to I cannot call Amendments Nos. 366 and 367.

The LORD CHANCELLOR moved Amendment No. 365F: Page 90, line 9, leave out from ("sections") to end of line and insert ("1 to 10, 11(1) and (2), 12, 13, 15 to 17, 19 to 26, 28 to 33, 50 to 53, 55, 56, 69, 76, 80, 87(2), 92(1), 96,").

Lord CAWLEY

This Amendment partially subsumes my Amendment No. 382R in which I seek to repeal Section 56 of the 1949 Act. Section 56 has been brought in by this Amendment where it was not present before. I think that I ought to say something about this section because it is thought by practitioners in the law of patents to have been a misconceived section, and therefore it seems unnecessary that it should have any further relevance. The section reads as follows, so far as relevant: Where a dispute arises between an employer and a person who is or was at the material time his employee"—

The LORD CHANCELLOR

From what is the noble Lord reading?

Lord CAWLEY

From Section 56 of the 1949 Act. If the noble and learned Lord looks at my Amendment No. 382R he will see that it deals with this. The section continues: … as to the rights of the parties in respect of an invention made by the employee either alone or jointly with other employees or in respect of any patent granted or to be granted in respect thereof, the comptroller may, upon application made to him in the prescribed manner by either of the parties, and after giving to each of them an opportunity to be heard, determine the matter in dispute … et cetera. I do not think that there is any argument about subsection (1). Subsection (2) states: In proceedings before the court between an employer and a person who is or was at the material time his employee, or upon an application made to the comptroller under subsection (1) of this section, the court or comptroller may, unless satisfied that one or other of the parties is entitled, to the exclusion of the other, to the benefit of an invention made by the employee, by order provide for the apportionment between them of the benefit of the invention, and of any patent granted or to be granted in respect thereof, in such manner as the court or comptroller considers just This section was considered by your Lordships' House, sitting judicially, in Patchett v. Sterling Engineering Company, 72 Reports of Patent Cases, page 51. There, the noble and learned Viscount, Lord Simmonds, referring to Section 56(2), said: That jurisdiction only arises if the court is not satisfied that one or other of the parties is entitled, to the exclusion of the other, to the benefit of an invention. The word 'entitled' refers to legal right". Under Clause 36 of the Bill there seems to be no doubt that either the employee or the employer owns the whole legal rights of a patent which is made by the employee, so there is no question of apportioning the legal rights in a patent. I should have said, following the speech of the noble and learned Viscount, Lord Simmonds, in Patchett v. Sterling Engineering Company, that that was the situation under the 1949 Act, and that really, at any rate if subsection (2) is left in force in relation, as now, to the 1949 Act patents and to the patents in force, it is merely misleading and certainly ought to be repealed and not applied to any patent that exists now.

The LORD CHANCELLOR

I am very willing to look at the point which the noble Lord has made in regard to Section 56 of the 1949 Act, and perhaps we can return to that specific point at a later stage. I am most happy to do so.

Lord CAWLEY

I am grateful to the noble and learned Lord.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 370C:

Page 90, line 10, at end insert— ("(3) Sub-paragraph (1) above shall have effect subject to the following provisions of this Schedule, paragraph 2(2)(b) of Schedule 3 below and the provisions of Schedule 4 below.").

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 370D: Page 90, line 11, leave out paragraph 2.

The noble and learned Lord said: This Amendment paves the way for an Amendment to Schedule 4 which, if accepted, deals fully with the question of appeals from the comptroller under the continuing provisions of the 1949 Act. I beg to move.

On Question, Amendment agreed to.

The CHAIRMAN of COMMITTEES

I have to point out that if Amendment No. 370E is agreed to I cannot call Amendments Nos. 370A and 370B.

The LORD CHANCELLOR moved Amendment No. 370E: Page 90, line 31, leave out paragraphs 4 to 6.

The noble and learned Lord said: With Amendment No. 370E it may be convenient to speak to Amendment No. 379B as well. These two Amendments will result in the deletion from Schedule 1 of paragraphs 4, 5, 6 and 10. Paragraph 4 would have repealed Section 9 of the 1949 Act, but as a result of Amendment No. 365F Section 9 will continue to apply to existing patents and applications. Paragraphs 5, 6 and 10 would have repealed Sections 11(3) and 14 of the 1949 Act and part of Section 32(1). It is still intended to repeal these provisions, and Amendment No. 381B will transfer the repeals to Schedule 3, which deals with repeals of provisions of the 1949 Act. I beg to move.

Lord LYELL

The noble and learned Lord mentioned paragraph 10. We shall be coming to this in Amendment No. 379A, which unfortunately follows Amendment No. 379B in the Marshalled List. That may be of some assistance to the noble and learned Lord. We have one or two queries on Amendment No. 379A, and if the noble and learned Lord is speaking to that—he cannot move it yet, of course—we can probably deal with it.

The LORD CHANCELLOR

I do not think I have spoken to No. 379A yet.

Lord LYELL

Amendment No. 379B is the Amendment that the noble and learned Lord mentioned, I think. I do not know whether he has spoken to this. He mentioned paragraph 10 and Section 32 of the 1949 Act.

The LORD CHANCELLOR

The noble Lord is quite right.

Lord LYELL

We had one or two points that we wanted to raise on that, but I think we would be happy enough to accept the explanation which the noble and learned Lord has given at this stage, so that we would not raise anything further.

On Question, Amendment agreed to.

The CHAIRMAN of COMMITTEES

I should point out that if Amendment No. 379B is agreed to I cannot call Amendment No. 379A.

The LORD CHANCELLOR moved Amendment No. 379B: Page 91, line 11, leave out paragraph 10.

The noble and learned Lord said: I think this Amendment was considered with Amendment No. 370E.

On Question, Amendment agreed to.

7.28 p.m.

Lord LYELL moved Amendment No. 380: Page 91, line 21, after ("Act:"") insert ("and in subsection (3) the proviso shall cease to have effect")

The noble Lord said: This is where we are in some minor difficulty ourselves. The Committee will see that we seek to insert some words which are set out on the Marshalled List. This Amendment arises from the 1949 Act. The noble and learned Lord will find that in Section 33(3) of that Act it is provided that the comptroller shall not revoke a patent unless he finds the circumstances are such that he would have refused to grant the patent originally—and that, I think, occurs under Section 14 of the existing Patents Act. After our consideration of the Bill in its present form, this proviso no longer makes sense because it seems to us that this proviso will be in conflict with the rest of paragraph 11 of Schedule 1 to the Bill which we are now considering. I think it is line 15 on page 91. Paragraph 11 is going to allow the comptroller to revoke a patent on the grounds set out in Section 32. These grounds are available only to the court as Section 32 is written at the moment. However, Section 14 of the 1949 Act gives only a few of the grounds set out in Section 32. If the noble and learned Lord is able to see the length of Section 32—we have a volume with us here—

The LORD CHANCELLOR

I will take the noble Lord's word for it.

Lord LYELL

I am grateful to the noble and learned Lord. The length of Section 32(1) is considerable, and contains variegated grounds. However, Section 14 gives only a few of these grounds. It seems to us, therefore, that in one breath the comptroller is being given revocation powers under Section 32(1) of the 1949 Act but the reference to Section 14 will be taking some of those powers away. The effect of the Amendment that we are putting forward is, we hope, to remove the reference to Section 14 of the 1949 Act which is contained in the proviso to Section 33(3) of that Act. I hope that I have struck a blow against complexity in the direction of the noble and learned Lord. I have tried to make it simple. It is not as simple as I would wish. I beg to move.

The LORD CHANCELLOR

We are discussing Amendment No. 380 at this moment.

Lord LYELL

That is what I am speaking to.

The LORD CHANCELLOR

I wanted to reassure what I am pleased to call my mind at this late hour: that it is being applied to the Amendment to which the noble Lord has spoken so clearly. He has raised a point of a good deal of interest. I am grateful to him for drawing my attention to it. It may be a question of drafting—whether the words he proposes meet the point. I am happy to accept this Amendment in principle. If he does not press it, but agrees to let it lie fallow, so to speak, so that we can look to see whether the drafting is the best we can contrive, I should be grateful.

Lord LYELL

The noble and learned Lord does himself an injustice. Nothing lies fallow with the noble Lord. I understand that his advisers will go straight through this Amendment. I mentioned at least three other sections of the 1949 Act. Given the noble and learned Lord's kindness and willingness to consider it, I hope that we have got it right and I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Schedule 1, as amended, agreed to.

Schedule 2 [Application of this Act to 1949 Act patents and applications.]:

7.32 p.m.

The LORD CHANCELLOR moved Amendment No. 380B: Page 91, line 28, leave out ("1949 ACT") and insert ("EXISTING")

The noble and learned Lord said: It may be convenient to discuss Amendment No. 380C in connection with this. These are purely drafting Amendments to clarify the text. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 380C: Page 91, line 33, leave out ("to the transitional provisions in") and insert ("the provisions of")

On Question, Amendment agreed to.

The CHAIRMAN of COMMITTEES

If Amendment No. 380D is agreed to, then Amendment No. 380A cannot be called.

The LORD CHANCELLOR moved Amendment No. 380D: Page 91, line 35, leave out from ("sections") to ("118") in line 36 and insert ("19, 20, 26 to 33, 41 to 69, 80, 90, 92, 93, 95 to 104, 106, 108 to 112")

The noble and learned Lord said: Schedule 2, paragraph 1(2) sets out the clauses of the Bill which are to apply to existing applications and patents. In the main, these are clauses which have counterparts in the 1949 Act. Thus it is not necessary, where Schedule 1 retains an existing section, to apply the counterpart in Schedule 2 to existing applications and patents. The Amendment therefore reflects the Amendments made to Schedule 1, paragraph 1(2). Clauses 7,34 and 35 are deleted from Schedule 2 since Sections 55 and 56 of the 1949 Act are retained in Schedule 1 for existing applications and patents. Similarly, Clauses 105 and 118 correspond to Sections 76 and 101 in the amended Schedule 1 and reference to them is no longer necessary.

Section 18, relating to secrecy, has been removed by Amendment No. 365F from Schedule 1, paragraph 1(2), and the corresponding Clause 20 in the Bill has been added to the Schedule 2 list so that directions given after the appointed day in respect of existing applications will be made under Clause 20. Schedule 4, paragraph 4, continues existing directions already given under Section 18 in respect of existing applications. Finally, Clause 80 has been included since the provisions of the Community Patent Convention which affect national patents must apply equally to existing patents as well as to patents granted under the Bill. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 380E: Page 92, line 2, leave out ("patent") and insert ("product")

The noble and learned Lord said: This is a drafting Amendment to correct an error in the text. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 380F: Page 92, line 4, leave out from beginning to ("(and") in line 6 and insert ("references to a published application for a patent under this Act, and to publication of such an application, include respectively references to a complete specification which has been published under the 1949 Act and to publication of such a specification")

The noble and learned Lord said: The purpose of this Amendment is to fill a lacuna in paragraph 2(e). As drafted that paragraph equates published applications under the 1949 Act to published applications under the Bill. It is also necessary to equate publication of specifications, as such, under the 1949 Act to publication of specifications under the Bill. The Amendment effects this addition. I beg to move.

On Question, Amendment agreed to.

The CHAIRMAN of COMMITTEES

If Amendment No. 380G is agreed to, I cannot call Amendments Nos. 381 and 381A.

The LORD CHANCELLOR moved Amendment No. 380G: Page 92, line 16, leave out from beginning to end of line 28.

The noble and learned Lord said: This Amendment deletes paragraphs 2(h), 3 and 4 from Schedule 2. Deletion of paragraphs 2(h) and 3 is necessary since Clauses 22 and 91(1), to which those paragraphs relate, are not applied to existing patents and applications by virtue of Schedule 2 paragraph 1(2). The deletion of paragraph 4 is purely a paving Amendment to Amendment No. 381B to Schedule 3 which incorporates the provisions of paragraph 4. I beg to move.

On Question, Amendment agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 [Minor Amendments.]:

The CHAIRMAN of COMMITTEES

If this Amendment is agreed to, I cannot call Amendment No. 382A.

The LORD CHANCELLOR moved Amendment No. 381B: Page 92, line 29, leave out from beginning to end of line 35 and insert—

("REPEALS OF PROVISIONS OF 1949 ACT]

1.—(1) Subject to the provisions of Schedule 4 below, the provisions of the 1949 Act referred to in sub-paragraph (2) below (which are superseded by virtue of paragraph 1 of Schedule 2 above) shall cease to have effect. (2) The provisions are sections 11(3), 18, 27, 34 to 40, 43 to 49, 54, 57 to 68, 70, 73 to 75, 77 to 79, 81 to 86, 87(1) and (3), 85 to 90, 91(1), 93 to 95, 97 to 100 and 102(2) and Schedule 1. 2.—(1) Subject to the provisions of Schedule 4 below, the provisions of the 1949 Act referred to in sub-paragraph (2) below (which have no counterpart in the new law of patents established by this Act in relation to future patents and applications) shall also cease to have effect. (2) The provisions are—

1. (a) section 14 (opposition to grant of patent);
2. (b) in section 32 (revocation of patent by court), in sub-section (1) paragraphs (g), (j) and (l), in paragraph (h) the words from "or does not" to the end and in paragraph (i) the words from "or that" to the end, and subsections (2) and (3);
3. (c) section 41 (inventions relating to food or medicine, etc.);
4. (d) section 42 (comptroller's power to revoke patent after expiry of two years from grant of compulsory licence);
5. (e) section 71 (extension of time for certain convention applications);
6. (f) section 72 (protection of inventions communicated under international agreements);
7. (g) section 91(2) (false use of words "Patent Office" and offence).")

The noble and learned Lord said: This Amendment in effect introduces a new Schedule into the Bill in which all repeals of the provisions of the 1949 Act are collected and contained, in substitution of the existing Schedule 3 which deals only with minor Amendments. No overall change of substance is, however, effected. I beg to move.

Lord BELSTEAD

I see that the effect of paragraph 2(2)(b) is that Section 32 of the 1949 Act is to be considerably altered. The Amendment reads: Subject to the provisions of Schedule 4 below, the provisions of the 1949 Act referred to in subparagraph (2) below…shall also cease to have effect. The ways in which Section 32 is to cease to have effect are set out. I make no complaint about that. Then I look ahead at Amendment 382T. This is the beginning of an immensly long, newly-worded last part of Schedule 4 which the Government are intending to write into the Bill. The first provision of that Amendment reads as follows: 5.—(1) Where before the appointed day a petition has been presented under section 32 of the 1949 Act for the revocation of a patent, and issue has been joined on the petition before that day, the petition shall be continued and disposed of under the old law The only point I wish to raise with the noble and learned Lord is that I trust that that means under the old law, and not as amended by Government Amendment No. 381B. If Section 32 actions for revocation of patents shall be continued and disposed of after the appointed day under the old law, and the old law on the appointed day is to be amended, as it is being amended by Government Amendment No. 381B, I think that the situation would have been chaotic, and I cannot believe that that is the intention.

The LORD CHANCELLOR

May I look at that point and write to the noble Lord? Obviously, it is essential that we should not have the chaos to which he refers.

Lord BELSTEAD

I wonder whether, at the risk of delaying the Committee, I may say this. The reason I refer to the chaotic situation is that presumably if a party goes to a patent agent and says "I am worried that I may be going to infringe a patent", the patent agent or other professional adviser—a solicitor perhaps—might very well say, "You do not need to worry about infringement because, under Section 32 of the 1949 Act, I can advise you definitely that the patent which you are worried about is not going to stand up; it will be invalid." My worry quite simply is that, if on the appointed day Section 32 is to be amended, as it is being amended by Government Amendment No. 381B, but a revocation action for invalidity is going on at that time and suddenly the rules are changed then that professional advice which has been given to a potential infringer may lead that potential infringer into a chaotic situation. That is my worry.

The LORD CHANCELLOR

I am grateful to the noble Lord for pointing out this problem. The noble Lord asked a question about the old law in the new provisions in Amendment No. 382T. Paragraph 14 of Schedule 4 specifies: In this Schedule 'the old law' means the 1949 Act, any rules made under it and any relevant rule of law as it was or they were immediately before the appointed day. I will gladly look at the point which has been made by the noble Lord.

On Question, Amendment agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 [Transitional provisions]:

7.43 p.m.

Lord LYELL moved Amendment No. 382B:

Page 94, line 7, at end insert— ("(7) Where an act, if performed before the appointed day, would not amount to an infringement, the performance of a like act after that day shall not (despite anything in this paragraph) amount to infringement.").

The noble Lord said: The effect of this small Amendment is to provide that, if there is an act which is performed before the appointed day and this would not have infringed a patent which had already been granted under the 1949 Act, then we would hope that a similar act shall not be an infringement of an old patent after the appointed day. We have to note that paragraph (6) would be the corollary of this Amendment, because under paragraph (6) where an act is begun before the appointed day, and it continues afterwards, then such an act, if it would not amount to an infringement before the appointed day, shall not be an infringement after that day, even if it continues to be performed. We think the Government consider paragraph (6) to be fair and we hope that paragraph (7), as provided in this Amendment, would also be fair and reasonable in the circumstances. I beg to move.

The LORD CHANCELLOR

I appreciate the thinking behind this Amendment and I can well understand that from a theoretical point of view there is a good deal to be said for it. But on the crucial issues with which patent proceedings are principally concerned—namely, revocation and infringement—we have thought that it was necessary to maintain as much simplicity as was practicable, to coin a much maligned phase, and that the effects of the existence of two different kinds of patent should be minimised. We have sought to do so, but we feel that this Amendment might defeat that purpose. I am afraid that I cannot commend it.

Lord LYELL

We accept that the noble and learned Lord is always seeking after clarity. We hoped this clarified the Bill somewhat. Given that the noble and learned Lord has expressed his opinion firmly, kindly but gently, we seek leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The LORD CHANCELLOR moved Amendment No. 382S: Page 94, line 12, leave out paragraphs (a) and (b) and insert—

1. ("(a) if issue has been joined on the notice before the appointed day, the opposition, any appeal from the comptroller's decision on it and any further appeal shall be prosecuted under the old law, but as if references in the 1949 Act and rules made under it to the Appeal Tribunal were references to the Patents Court;
2. (b) in any other case, the notice shall be taken to have abated immediately before the appointed day").

(2) Sub-paragraph (1)(a) above shall have effect subject to paragraph 10(2) below.").

The noble and learned Lord said: This Amendment relates to paragraph 3 of Schedule 4 which deals with the transitional provisions required in respect of cases where notice of opposition to the grant of a patent has been given under Section 14 of the 1949 Act before the appointed day. Transitional provisions are always very difficult to provide for in legislation.

In the cases specified in paragraph 3(a) appeals against any decision on the notice given by the comptroller before the appointed day will continue to be dealt with under the old law. Paragraph 3(b) provides that, if the comptroller has not given such a decision before that day the notice will be taken to be an application under Section 33 of the 1949 Act (as amended by the Bill) for the revocation of patent on any ground under that section which, in the comptroller's opinion, corresponds to the ground on which the notice was given, or if there is no such ground, the notice will be taken to have lapsed immediately before the appointed day. The substituted proceedings will then continue under the new law introduced by the Bill.

In some cases it might be to the advantage of the applicant for the notice to be dealt with under sub-paragraph (b), because the Section 33 grounds for revocation, as amended by the Bill, do not include some of the grounds upon which Section 14 of the old Act allowed the grant of a patent to be opposed. Consequently, this Amendment is introduced with a view to reducing to a minimum the opportunity which any party might have of using delaying tactics in order to prevent the proceedings reaching the stage of decision before the appointed day. Instead of drawing the line at the moment of decision, the Amendment would draw it at that point in time when issue is joined between the parties; that is, at the first moment when there is a formal dispute between them. The point at which issue is joined on a notice of opposition under Section 14 of the 1949 Act is defined in a new paragraph 15(a) which I will be seeking to add to Schedule 4 as part of Amendment No. 382T which follows. I beg to move.

On Question, Amendment agreed to.

The CHAIRMAN of COMMITTEES

If Amendment No. 382T is agree to, I cannot call Amendments Nos. 382C to 382M inclusive.

The LORD CHANCELLOR moved Amendment No. 382T:

Page 94, line 44, leave out paragraphs 5 to 7 and insert— ("5.—(1) Where before the appointed day a petition has been presented under section 32 of the 1949 Act for the revocation of a patent, and issue has been joined on the petition before that day, the petition shall be continued and disposed of under the old law. (2) Where such a petition has been so presented but issue has not been so joined, then—

1. (a) if the ground of the petition continues to be contained in that section as amended by Schedule 3 above, it shall be taken to be a petition on that ground;
2. (b) in any other case, the petition shall be taken to have abated immediately before that day.

(3) Sub-paragraphs (1) and (2) above shall apply to a counter-claim made for the revocation of a patent in proceedings for its infringement as they apply to a petition presented for the revocation of a patent. 6.—(1) Where before the appointed day an application has been made under section 33 of the 1949 Act for the revocation of a patent (the original application), the following provisions shall apply:—

1. (a) if issue has been joined on the application before the appointed day, the application, any appeal from the comptroller's decision on it and any further appeal shall be prosecuted under the old law, but as if references in the 1949 Act and rules made under it to the Appeal Tribunal were references to the Patents Court;
2. (b) if issue has not been so joined, the original application shall be taken to be an application under section 33 of the 1949 Act for the revocation of the patent on whichever of the grounds referred to in section 32(1) of that Act corresponds (in the comptroller's opinion) to the ground on which the original application was made, or, if there is 870 no ground which so corresponds, shall be taken to have abated immediately before the appointed day.

(2) Sub-paragraph (1)(e) above shall have effect subject to paragraph 9(3) below. 7.—(1) This paragraph applies where an application has been made before the appointed day under section 42 of the 1949 Act for the revocation of a patent. (2) Where the comptroller has made no order before that day for the revocation of the patent under that section, the application shall be taken to have abated immediately before that day. (3) Where the comptroller has made such an order before that day, then, without prejudice to section 38 of the Interpretation Act 1889, section 42 shall continue to apply to the patent concerned on and after that day as if this Act had not been enacted.

Licences of right and compulsory licences

8.—(1) Sections 35 to 41 and 43 to 45 of the 1949 Act shall continue to apply on and after the appointed day—

1. (a) to any endorsement or order made or licence granted under sections 35 to 41 which is in force immediately before that day; and
2. (b) to any application made before that day under sections 35 to 41.

(2) Any appeal from a decision or order of the comptroller instituted under sections 35 to 41 or 43 to 45 on or after the appointed day (and any further appeal) shall be prosecuted under the old law, but as if references in the 1949 Act and rules made under it to the Appeal Tribunal were references to the Patents Court.

Appeals from comptroller under continuing provisions of 1949 Act

9.—(1) In this paragraph "the continuing 1949 Act provisions" means the provisions of the 1949 Act which continue to apply on and after the appointed day as mentioned in paragraph 1 of Schedule 1 above. (2) This paragraph applies where—

1. (a) the comptroller gives a decision or direction (whether before or on or after the appointed day) under any of the continuing 1949 Act provisions, and
2. (b) an appeal lies under those provisions from the decision or direction;

but this paragraph applies subject to the foregoing provisions of this Schedule. (3) Where such an appeal has been instituted before the Appeal Tribunal before the appointed day, and the hearing of the appeal has begun but has not been completed before that day, the appeal (and any further appeal) shall be continued and disposed of under the old law. (4) Where such an appeal has been so instituted, but the hearing of it has not begun before the appointed day, it shall be transferred by virtue of this sub-paragraph to the Patents Court on that day and the appeal (and any further appeal) shall be prosecuted under the old law, but as if references in the 1949 Act and rules made under it to the Appeal Tribunal were references to the Patents Court. (5) Any such appeal instituted on or after the appointed day shall lie to the Patents Court or, where the proceedings appealed against were held in Scotland, the Court of Session; and accordingly, the reference to the Appeal Tribunal in section 31(2) of the 1949 Act shall be taken to include a reference to the Patents Court or (as the case may be) the Court of Session. (6) Section 91(3) of this Act shall apply to any decision of the Patents Court on an appeal instituted on or after the appointed day from a decision or direction of the comptroller under any of the continuing 1949 Act provisions as it applies to a decision of that Court referred to in that subsection, except that for references to the sections mentioned in paragraph (a) of that subsection there shall be substituted references to sections 33, 55 and 56 of the 1949 Act.

Appeals from comptroller under repealed provisions of 1949 Act

10.—(1) This paragraph applies where an appeal to the Appeal Tribunal has been instituted before the appointed day under any provision of the 1949 Act repealed by this Act. (2) Where the hearing of such an appeal has begun but has not been completed before that day, the appeal (and any further appeal) shall be continued and disposed of under the old law. (3) Where the hearing of such an appeal has not begun before that day, it shall be transferred by virtue of this sub-paragraph to the Patents Court on that day and the appeal (and any further appeal) shall be prosecuted under the old law, but as if as references in the 1949 Act and rules made under it to the Appeal Tribunal were references to the Patents Court.

Appeals from Appeal Tribunal to Court of Appeal

11. Section 87(1) of the 1949 Act shall continue to apply on and after the appointed day to any decision of the Appeal Tribunal given before that day, and any appeal by virtue of this paragraph (and any further appeal) shall be prosecuted under the old law.

Rules

12. The power to make rules under section 112 of this Act shall include power to make rules for any purpose mentioned in section 94 of the 1949 Act.

Supplementary

13. Section 91(2) of this Act shall apply to—

1. (a) any appeal to the Patents Court by virtue of paragraph 3(1)(a), 6(1)(a), 8(2) or 9(5) above, and
2. (b) any appeal which is transferred to that Court by virtue of paragraph 9(4) or 10(3) above,

as it applies to an appeal under that section; and section 90 of this Act shall apply for the purposes of any such appeal instead of section 85 of the 1949 Act.

14. In this Schedule "the old law" means the 1949 Act, any rules made under it and any relevant rule of law as it was or they were immediately before the appointed day.

15. For the purposes of this Schedule—

1. (a) issue is joined on a notice of opposition to the grant of a patent under section 14 of the 1949 Act when the applicant for the patent files a counter-statement fully setting out the grounds on which the opposition is contested;
2. (b) issue is joined on a petition for the revocation of a patent under section 32 of that Act when the respondent to the petition serves an answer on the petitioner in accordance with rules of court;
3. (c) issue is joined on an application for the revocation of a patent under section 33 of that Act when the patentee files a counter-statement fully setting out the grounds on which the application is contested.")

The noble and learned Lord said: We have already had our attention drawn to this massive Amendment to Schedule 4 and the new paragraphs which this Amendment seeks to insert and deal more completely with the various problems which will arise on the transition from the old code to the new where actions of various kinds are pending. I am afraid that the provisions are perhaps somewhat difficult to follow and for those who may have to interpret these matters later it may be desirable for me to deal with the matter in a little detail. I apologise to the Committee for doing so, but I think it must be done.

The new paragraph 5 deals with petitions for revocation, whether by themselves or by way of counter-claims in infringement actions, to the court under Section 32 of the Patents Act 1949. Where issue has been joined, everything continues as before. Where issue has not been joined, the paragraph provides, in effect, that only those grounds of revocation which have a counterpart in the new code should be available to the petitioner. It may seem that by making the cut-off date the date when the respondent, that is, the patentee, serves an answer on the petitioner—we look to paragraph 15(b) of the Schedule as proposed to be amended by this Amendment—we are giving the patentee a chance to delay things until after the appointed day, and so avoid having to face an attack on certain grounds. However, of the various possible dates which we considered, this one seemed to us the least arbitrary. Order 103, Rule 18 of the Rules of the Supreme Court gives a respondent 21 days to serve his answer. Although that period is extendable, I think we can rely on the fact that extensions will not be allowed except for good cause.

The next paragraph, paragraph 6, deals with applications of the comptroller for revocation under Section 33 of the 1949 Act. In this case the problems are different, in that under paragraph 11 of Schedule 1 the grounds for revocation open to the comptroller are widened so that they are now to be the same as those open to the court under Section 32, as amended. At the same time, there are certain grounds under Section 33—they are set out in Section 14—which do not have a counterpart in Section 32 as proposed to be amended. After reflection, we decided that the same cut-off date as we have proposed in relation to petitions to the court for revocation would produce the least unfairness in this case, also. To cater for grounds which have no counterpart it was, however, necessary to include the provision which your Lordships will see in paragraph 6(1)(b) of the Amendment.

Paragraph 7 deals with revocation under Section 42 of the 1949 Act. This section provides that where an order for a compulsory licence has been made, in certain circumstances after two years any person interested can apply for revocation on what might be called "compulsory licence grounds". The provision has been little used and, since revocation on these grounds will not be permitted under the new code, it seems to us that the fairest thing would be to make the cut-off date the conclusion of the proceedings, and to say that after that no application under Section 42 is possible. In practice, we think the chances of anyone being caught, so to speak, in mid-action, are extremely slim.

Paragraph 8 provides that where actions have begun under the compulsory licence provisions, apart from Section 42, they are in effect to continue under the old code. In practice, that provision is largely a technicality, since the old and new codes are almost identical. Paragraphs 9 and 10 effectively re-route appeals from the comptroller to the new Patents Court. There is, however, no point in disturbing appeals to the Patents Appeal Tribunal, where these have already begun to be heard, and those appeals will continue unaffected. I should add that in appropriate cases the appeal will be not to the Patents Court but to the Court of Session. The same principles apply.

Paragraph 11 similarly preserves the existing position, so far as further appeals to the tribunal are concerned. Paragraph 12 is a technical provision designed to ensure that, if necessary, the rule-making power in the Bill can be used to make rules about anything about which rules could have been made in the 1949 Act. Paragraph 13 is also a technical provision, designed to avoid the result which might otherwise have occurred; in certain circumstances the Patents Court would have to be treated as a divisional court when hearing appeals re-routed to it under the Schedule. Paragraphs 14 and 15 define terms used in the Schedule, and I have already dealt with their substance in discussing earlier paragraphs. I apologise for the length of my reading, but it was inescapable. I beg to move.

Lord BELSTEAD

The Lord Chairman reminded us that, if this Amendment is agreed to, the following 10 Amendments cannot be moved. I should just like to thank the Government because—I hope I am right—even given the lucidity of the noble and learned Lord, it is not all that easy to decipher the exact meaning of all the provisions of this Amendment. But I think that our first three Amendments, which are not going to be moved—that is. Amendments Nos. 382C, 382D and 382E—have been met by paragraph 5(3) of the new Amendment. All the rest of our Amendments have been met by paragraph 5(1) of the new Amendment. I believe that is the case, and with that in mind I should like to thank the noble and learned Lord for his explanation. I support this Amendment.

The LORD CHANCELLOR

I can assure the noble Lord that he is right. This was really one of the matters covered in the Amendment.

Lord LLOYD of KILGERRAN

May I briefly associate myself with the noble Lord, Lord Belstead, in thanking the noble and learned Lord for the explanation he has given of these four pages of Amendments, in relation to revocation, infringement and other matters. I cannot, even at this late hour, resist the temptation to say once again that I feel so many of the difficulties which may be presented to small firms and individual inventors could he solved if some of these matters of infringement and revocation could be dealt with by a tribunal, so that it would not be necessary to invoke all the clauses of this Act, of the old Act and of the orders, of course, which will no doubt arise.

The LORD CHANCELLOR

May I thank the noble Lord for producing his King Charles's head!

Lord CAWLEY

May I make one small observation. According to Section 32(4), the grounds of revocation may be used as a defence. It looks to me as though, under this Amendment, paragraph 5(1) merely deals with a petition presented under Section 32. If somebody merely defends himself, and I have known that to occur, we shall have to apply the new grounds and not rely on Section 32.

The LORD CHANCELLOR

I will look again at the point and communicate with the noble Lord.

On Question, Amendment agreed to.

Schedule 4, as amended, agreed to.

Schedule 5 [Enactments repealed]:

The CHAIRMAN of COMMITTEES

I should point out that if this Amendment is agreed to, I cannot call Amendment No. 382U.

7.51 p.m.

Lord LYELL moved Amendment No. 382N: Page 96, column 3, leave out lines 4 to 7.

The noble Lord said: Perhaps I might be permitted to speak to our Amendment No. 382N and also to Amendment No. 382U. I shall be very brief. We agree very much with the Amendment which stands in the name of the noble Lord, Lord Oram, and doubtless we shall hear an explanation of it, either from the noble Lord or from the noble and learned Lord. It seems that Amendment No. 382U meets our Amendment; but one small question arises, in that our Amendment would omit the first line of Amendment No. 382U, referring to Section 11 (3) That is the only point on which the Amendment of the noble and learned Lord does not tie up with our wishes, as set out in Amendment No. 382N. We should like to hear what the noble and learned Lord is able to tell us on that. I beg to move.

The LORD CHANCELLOR

I am grateful to the noble Lord for having also discussed Amendment No. 382U, which deals with most of the matters contained in Amendment No. 382N. The only difference between us is the retention of Section 11(3) in the list of repeals. That has to be kept in the list, because it has been repealed by paragraph 1(2) of Schedule 3, having been superseded by Clause 104, as amended by Amendments Nos. 343 and 344.

Lord BELSTEAD

How could we have missed it!

The LORD CHANCELLOR

I am amazed that we have, as we have followed every detail with such memorable clarity. As regards Amendment No. 382U, there appears to be a printer's error in the first line. It should, of course, read: Page 96, in column 3, leave out lines 4 to 24". Otherwise, Amendment No. 382U substitutes a new list of sections of the 1949 Act which are being repealed by Clause 120(5) of the Bill for that in column 3 of Schedule 5 to the Bill as printed, and specifies the extent of their repeal. The changes are consequent upon Amendments made to the Bill in this Committee.

Lord LYELL

I am happy to beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The CHAIRMAN of COMMITTEES

If Amendment No. 382U is agreed to, I cannot call Amendments Nos. 383, 382P 382R and 382Q.

The LORD CHANCELLOR moved Amendment No. 382U:

Page 96, in column 3, leave out lines 4 to 24 and insert—

("Section 11(3).

Section 14.

Section 18.

In section 24(7) the words from "but" to the end.

Section 27.

In section 32, in subsection (1) paragraphs (g), (j) and (l), in paragraph (h) the words from "or does not" to the end and in paragraph (i) the words from "or that" to the end, and subsections (2) and (3).

Sections 34 to 49.

Section 54.

Sections 57 to 68.

Sections 70 to 75.

Sections 77 to 79.

Sections 81 to 86.

Section 87(1) and (3).

Sections 88 to 91.

Sections 93 to 95.")

On Question, Amendment agreed to.

Schedule 5, as amended, agreed to.

In the Title:

Lord CAWLEY moved Amendment No. 384: Line 3, leave out from ("law") to first ("to") in line 4 and insert ("applicable to existing letters patent for inventions and applications therefor;")

The noble Lord said: I think that the Bill ought to have started by saying: From the commencement of this Act the Crown shall cease to grant letters patent for inventions, and there shall be a new right called a patent. That would have told us quite clearly what was the new law of patents. This Amendment is to deal with this point, to some extent, and to put a little accuracy into the Title. The word "patent", under the old law, is therefore changed to, …existing letters patent for inventions and applications therefor". I beg to move.

The LORD CHANCELLOR

This Amendment appears to be of a drafting nature designed to introduce a reference to existing "letters patent". They will, of course, disappear under the new law. That does not seem to us to be necessary. The present reference to, the law of patents applicable to existing patents and applications for patents is consistent in terms with, and contrasts with, the earlier reference to, a new law of patents applicable to future patents and applications for patents". I do not know whether that application reassures the noble Lord, but for what it is worth I present it for reassurance. We think that, as it stands, the Title is satisfactory.

Lord BELSTEAD

Before my noble friend withdraws the Amendment, may I just say this. The noble and learned Lord was good enough, at the beginning of our proceedings this evening, to apologise for the weight of Government Amendments. It was nothing that he needed to apologise about. He has had to cope single-handed this evening, and it has been a long evening for him. I really rise to congratulate the Government on moving 999 Amendments to this Bill which have, in effect, completely rewritten it. A little more seriously, I think that there has been some strain, certainly on this side of the Committee, because of the weight of the Amendments, and I am sure that a smoke signal will go out from the noble and learned Lord's Office that perhaps it would not be wise to repeat this kind of exercise too often on future Government legislation.

I speak for my noble friend Lord Lyell and myself when I say that we would have foundered completely had it not been for the forbearance of people who understand the law, like the noble and learned Lord and the noble Lord, Lord Lloyd of Kilgerran, not to mention my noble friend Lord Cawley. We have been particularly helped by being allowed some technical briefing, which the noble Lord, Lord Oram, very kindly allowed us to have. Quite honestly, I do not think I could have coped with the Bill without it. Also, we have been given some very wise advice by people outside the Chamber, who have admirably discharged Bagehot's constitutional duty of the Sovereign, to be consulted, to encourage and to warn. That is more than enough from me. I should like to congratulate the Government on the felicity with which, with practice, they have moved their Amendments, and to express the hope that, so far as our Amendments were concerned, perhaps sometimes the sentiment was mutual.

The LORD CHANCELLOR

I am most grateful to the noble Lord, Lord Belstead, for the most gracious observations which he has made. Indeed, I should like to thank the noble quartet, if they do not mind being so described, Lord Lyell, Lord Belstead, Lord Cawley, and, last but not least, Lord Lloyd of Kilgerran, whom I forgive for having resurrected King Charles's head from time to time, to our great delectation.

This has been a very difficult phase in the consideration of this highly technical but very important Bill for the future of our industry and commerce. All I should like to say is that so much of the discussion has been technical and there is still more to come in the Report stage. So that, if we can give some assistance in at least making available the technical information which we have in regard to Amendments which may arise, perhaps we can discuss together to see whether we can save some of the burning of the midnight oil by those who do not necessarily have the resources which, while one is in Government, one gets. I have laboured in the Opposition vineyard for many years in another place, knowing how difficult dealing with these technical matters is.

But I am most grateful to noble Lords who have taken part, including the eloquent contributions from my noble friend Lord Davies of Leek, from time to time. Before I conclude, may I also express our thanks to the Chair for the magnificent way in which the noble Lord, Lord Aberdare, and his predecessors have guided us in what has not been an easy task. I thank your Lordships very much.

LORD CAWLEY

In withdrawing my Amendment, may I say that nobody reads the Long Title of a Bill, anyhow. I beg leave to withdraw the Amendment.

Lord DAVIES of LEEK

I just want to say, "Thank you". Even the ranks of Tuscany could scarce bear not to cheer at the efforts of the noble Lords, Lord Belstead, Lord Cawley and Lord Lyell. I should also like to say "Thank you" for the magnificent work that has been put in by the noble Lord, Lord Lloyd of Kilgerran, silo has made a valuable contribution.

Amendment, by leave, withdrawn.

Title agreed to.

House resumed: Bill reported with the Amendments.