§ Order of the Day for the Second Reading read.
§ LORD TEMPLEMORE
My Lords, this is a Bill to amend the law relating to patents, designs, trade marks and merchandise marks in such a way as to enable ratification to be given to two international instruments—the International Convention for the Protection of Industrial Property and the International Agreement regarding False Indications of Origin on Goods—both of which were revised at the Conference of the International Union for the Protection of Industrial Property held in London in 1934. The Union consists of forty-one countries. Its principal Convention dates from the Conference of Paris of the year 1883, and it was revised at Brussels in the year 1900, at Washington in 1911, at The Hague in 1925, and lastly in London in 1934. Some of the amendments which were made to the International Convention at the London Conference merely brought that instrument into conformity with our law as regards the matters in question. Other amendments to the Convention, and the amendment to the Agreement, are not covered by our 467 existing law; and the main purpose of this Bill is to amend the law in those respects so as to enable ratification of both instruments to be given before the date fixed for that purpose, namely, the 1st July, 1938.
Advantage has also been taken of the opportunity to include in this Bill one or two amendments which are not strictly necessary in order to enable this ratification to be given, but relate to matters affected by the two instruments. The Bill accordingly contains a number of more or less disconnected provisions of varying importance, of which I will refer to the more important. In the first place, there is a provision that the inventor shall be entitled always to be mentioned as such in the patent.
§ LORD TEMPLEMORE
Under our law as it stands, the true and first inventor must, in most cases, be the grantee, or one of the grantees, of the patent, but in one or two cases it is possible for the grant to be made otherwise than to the actual inventor. The provisions of Clause 1 of the Bill will enable the actual inventor to have his name entered in the patent in such cases by way of historical record, without affecting in any way the ownership of the property rights in the patent. Clause 2 deals with the term of a patent which, at present, subject to the payment of renewal fees, runs for sixteen years from the date of the patent. Clause 4 deals with provisions for the prevention of the abuse of monopoly rights under a patent, for example, non-working. At present, under the Convention and under our own law, it is possible, after the expiration of three years from the grant of a patent, for the patent to be revoked on the ground of abuse of monopoly rights. In general, however, it is found that such an abuse can be satisfactorily checked by the grant of a compulsory licence under the patent; and the clause provides that a patent shall not be revoked unless an order for a compulsory licence has been first obtained, after the expiration of the three years from the grant of the patent, and a further period of not less than two years has elapsed. During those two years, it will, of course, be open to the patentee or the licensee to take steps to remedy the abuse.
468 Another provision to be noted is in Clause 6. Before we in this country grant a patent with priority of date under the Convention, we examine the application in order to make sure that the invention is the same as that for which protection was asked in the Convention country. The clause provides that, in carrying out this investigation, regard is to be had to the invention disclosed in the whole of the relevant Convention documents, and not merely to what is formally claimed therein. This, in fact, has been the practice of the Patent Office for some time, and the clause will give that practice statutory effect. Clause 7 removes a proviso which a decided case in the Courts has shown to be redundant. Clause 8 deals with, for example, a case in which a number of Convention countries have agreed together to treat an application—say for the registration of a trade mark—made at some international office as being equivalent to an application made in each country itself. It provides that, in such a case, the application shall be treated under our law as if it were made in the particular country in question. Clause 9 to some extent redrafts the provision for applying certain privileges under our Acts to Convention countries by Orders in Council, and makes it clear that such Orders may be made, not only in respect of a foreign State, but also of any Colony, Protectorate, or other territory subject to the authority of such a State or in respect of territory for which a Mandate on behalf of the League of Nations is being exercised by such a State.
Clause 10 contains the only provision in the Bill dealing with merchandise marks. Under our present law, for a false trade description (including a false description as to the origin of goods) to be an offence under the Merchandise Marks Acts, it appears that the description must be used in some physical relation to the goods. The clause extends the provisions of our law in this respect to a trade description in any sign, advertisement, invoice, wine list, business letter, business paper or other commercial communication, where goods are delivered in pursuance of a request made with reference to such a description. The clause extends to all trade descriptions under the Acts, and not merely to descriptions as to the origin of goods, as it is considered undesirable to make any distinction between the different kinds of 469 trade description in this respect. Clause deals with consequential and minor amendments of the Patents and Designs Act. Clause 12 contains the short title, various definitions, and other matters of machinery, and lays down that the Act shall came into operation on a date to be named by Order in Council. This Bill is a somewhat complicated and technical Bill, and in such a case as this I should not wish to hurry your Lordships in any way. The Convention has only got to be ratified by July 1 of next year, and in that case I have to acquaint your Lordships that I should not propose to take the Committee stage until we re-assemble after the Christmas Recess. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Templemore.)
My Lords, this is a Bill which originates in this House, and therefore I think it is our duty to examine it very carefully indeed, especially as it deals with what is admittedly a very important matter. It is complicated, as the noble Lord has said, but it does affect industry and commerce very much in this country and throughout the world. I thank the noble Lord for saying that the next stage will not be taken until after the Recess. I was so bold as, through the usual channels—because I knew there were some Amendments which my friends would wish to have—to ask that the Bill should not be taken through further stages next week, and I thank the noble Lord for his generosity in giving us till after the Recess. Obviously there is no great hurry. The Convention was signed, I think, in London in June, 1934, and therefore the Government, which is usually very rapid in all its actions, has not been very precipitate in bringing the Bill before Parliament. They have been three and a half years sitting on this egg in the Board of Trade, and therefore I am rather surprised at the way in which one or two of the clauses are drafted, which I shall explain in a very few words.
The Party for which I have the honour to speak attaches very great importance to this subject. Anything which will protect the poor inventor has our support. Some geniuses have been responsible for marvellous inventions and City sharks have devoured them and the inven- 470 tors have had no just reward at all. Anything which helps that class of inventor we should like to support and, if necessary, strengthen. Indeed I have heard it stated more than once cynically—and I expect the noble Lord opposite, Lord Marks, who is a very great expert on this subject, has heard the same thing—that the only real protection for a patent now is to have a million pounds in the bank; in other words, to be able to fight it and protect it through all its stages, even up to your Lordships' House.
At one time I had a great deal to do with inventors. I have a little to do with there now, I am sorry to say. They are a very curious race of people. When I was at the Admiralty we were going through a very critical time in connection with the submarine campaign, and we were inundated with inventions and inventors and discoveries for combating the submarine. For my sins I was punished by being put in charge of a small department which had to interview and "vet" and examine all these things. I had some experts to assist me, I am glad to say. I came to the conclusion that about 75 per cent. of inventors are mad, and of the remainder quite a number are rogues. But among the chaff of course we found a certain amount of grain. And that same thing is happening now in regard to air raids. I have had a great many inventions brought to me—why I do not know—which I pass on to the Department of State in connection with the defence of the country against air attack. But nevertheless, despite the difficult nature and peculiarities of inventors, without inventors I suppose we should all now be living in the stone age, and we should therefore do the best we can with them.
I am speaking with great diffidence in the presence of the noble Lord, Lord Marks. I feel like a very small David facing a very large Goliath on this subject, and I am rather sorry that I am speaking before him, as he will have an opportunity of demolishing what I say on this difficult and important subject; but nevertheless I intend to do my best. I must say a word here with regard to the English Patent Acts. I have one or two patents in my own name, so that I belong to the same tribe of inventors in a small way. My experience of the Eng- 471 lish Patent Office is that it is speedy and cheap and always very courteous and helpful; but in business I believe it is admitted that the search does not pretend to be as thorough as in some other countries. In the business with which I am connected, where we have to deal with a great many patents in connection with engineering, we never feel happy until we have got both the American and the German patents, because there the most thorough searches are made with reference to new discoveries or inventions.
Coming to the Bill, it is of course realised that this seeks to put into force the alterations of the Convention, and the first point I would like to touch on is the right of the inventor to have his name mentioned in the patent. When the noble Lord was explaining the Bill, I thought he was going on to speak about an opportunity taken in this Bill of introducing certain amendments of the law which are outside the Bill, and then he went on to speak about the right of the inventor to have his name mentioned, but I suppose that that is in the Convention and therefore we cannot, I imagine, avoid putting that into law. But it is not, I am advised, really very necessary. There is no good purpose served by this provision, since the mention of the inventor's name will give him no more legal interest in the patent. From that point of view this particular clause does not seem to serve any useful purpose, but it is in the Convention, and therefore I suppose it has to come into the Bill. I believe I am right in saying that English patents can lawfully be granted without reference to the inventor, and there are many patents of this kind.
The next clause I wish to comment upon is Clause 6. This is evidently intended to give effect to Article 4 (H) of the Convention. This appears to be in the right direction, and is an attempt to indicate more clearly how the foreign specification is to be construed when applying for a corresponding British patent with Convention priority. This question has been before the Law Officers and the Comptroller on numerous occasions, and different opinions have been expressed as to how the foreign specifications should be considered. Nevertheless, in the clause of the Bill the word "invention" (page 6, line 4) is used again, thus still leaving to those 472 responsible for administering the Act the question of deciding what is the invention disclosed in the foreign specification. What the British authorities may consider to be the "invention" disclosed in the foreign specification may be different from what the foreign Patent Office would consider to be the "invention" disclosed. I am advised that difficulties in that respect are foreseen. Also there are difficulties and hardships foreseen with regard to the word "whole" in the next line—"the whole of the documents"—and I hope that the Government will agree to some such form of words as these in substitution for the words in the Bill:… regard shall he had to the disclosure, irrespective of what is actually claimed, in the document or documents put forward at the same time.That seems to be a better form of words. I will put it on the Amendment Paper, and perhaps I could hear the views of the noble Lord and his advisers upon it. I do not think that will be inconsistent with past opinions expressed by the patent authorities in this country.
The most serious observation I wish to make is in regard to Clause 8 on page 6. This appears very obscure. It is apparently intended to deal with that part of Article 4 of the Convention which refers to third-party rights. As the Convention stood before it was amended and then ratified in London in June, 1934, the rights of third parties who may have used the invention between the date on which a patent was actually applied for and the date of priority claimed, were reserved, and the laws of certain of the Convention countries were consistent with this reservation. I understand that the idea underlying Clause 8 is to do away with the intervening third-party rights. If Clause 8 is intended to give effect to this, then it should have been drafted in a much plainer and more straightforward way. As the clause stands at present, it seems almost impossible to distinguish between the application actually made and the application deemed to have been made. I perhaps should be allowed to point out that Clause 8 does not read very well grammatically; because in paragraph (a) reference is made to two or more Convention countries, while the end of the clause speaks of "that" Convention country. But that is only a matter of drafting.
Now while the clause is apparently intended to give effect merely to that part 473 of Article 4 which relates to third-party rights, it appears that as it stands it might be taken as a much more sweeping and far-reaching piece of projected legislation. It might be read as meaning that when application has been made in one Convention country, then an application has automatically been made in every other Convention country, and that nothing more is required to get a patent in those other countries, although no documents have actually been filed in those other countries. I must at this point confess that I myself was tinder that impression when I first read the Bill. A great many people are under that impression now. They think that if you register under the Convention in one country you can sit back because you are protected in all countries. The noble Lord, Lord Marks, shakes his head, but many people believe that, and the point should be made much clearer than it is.
The difficulties that would arise in dealing with an application which had been made merely in spirit and not in letter, having regard to the fact that every country has a different patent law and its own peculiarities of patent practice, would be so vast as to be almost impossible to visualise. It would necessitate a radical change in the Patent Statutes or rules of practice of every country which is a party to the Convention. I do not believe that is the intention of Clause 8 of the Bill, but it does seem to be drafted in a very vague and obscure manner, and I submit to the Government and to the noble Lord that that needs clarification. I would not like this Bill to leave your Lordships' House with any obscurity in it. We are told that this House is the revising Chamber, and I would be sorry if Bills originating here, especially in the presence of the noble Lord, Lord Marks, and others, had to be revised in another place. Perhaps I may add that there are some expert patent lawyers sitting in another place.
Might I refer to one point that might be in the Bill, which, I submit, is very important? I would have thought the opportunity would have been taken—I hope it can still be taken—to deal with the difficulty pointed out a couple of years ago by Mr. Justice Luxmoore. He pointed out that there is no provision whereby an applicant can appeal from a decision of the Comptroller under Section 91, to 474 which the present Bill is mainly directed. Before the Amending Patents Act of 1932 appeals from the Comptroller's decision usually went to the Law Officers, but under the Act of 1932 a tribunal known as the Patents Appeal Tribunal, presided over by a Judge of the High Court, was established. Appeals from decisions of the Comptroller of Patents on points relating to Section 91 were decided by the Law Officers without question until Mr. Justice Luxmoore discovered that there were no provisions for appeal. Practically every section of the Act save Section 91 contains provisions for an appeal from any decision given by the Comptroller. Section 91 is a very important part of the Act, and I submit to your Lordships that this is an opportunity that might have been taken—I hope it can still be taken—to remedy that defect or gap in the existing law, which leaves the Comptroller power to decide a point without any right of appeal against the decision, especially as Section 91 has international intentions. One or two of the points I have mentioned are Committee points, but I thought it right to mention them now as we have plenty of time to consider the Bill during the Recess. One or two of these points are points of some substance, and I hope that something can be clone to meet them. I repeat that this is an important Bill. It will affect for many years to come, I suppose, British invention and the progress and march of science and discovery, and therefore we should do all we can to clarify this Bill on all these points.
§ LORD MARKS
My Lords, the noble Lord opposite seems to have been peculiarly unfortunate in the people with whom he has had conference concerning inventions, because he speaks of 75 per cent. of inventors being mad and quite a number of the other 25 per cent. being rogues. I have not had that unfortunate experience, and I should imagine that something which has been in existence for 315 years or more—our patent system—could not have gone on all that time if there were so many rogues and so many madmen associated with inventions, particularly when it is understood that there are some 36,000 or 37,000 new patents applied for every year. It is to the honour of this country that we, in the time of James I, introduced what was absolutely new to the whole world—namely, the 475 encouragement of new inventions and the development of industries by giving to the person who introduced something which was new and unknown to industry a limited monopoly in order that he might, during the period of monopoly, develop that which he had introduced, and that at the end of his monopoly the whole country might benefit by that which he had done.
We introduced all this years ago in the time of James I, as I say, and from that time down to now every civilised nation in the world has followed us. There is that which is termed a Union—not a League be it understood—consisting of forty-one different nations who give reciprocal rights to every other country, and to the citizens of these other countries just as they would have in their own countries. The noble Lord suggested that under the International Convention some people imagine that all they have to do is to apply for the British patent and, automatically, in the other forty countries they can get their patents. They can. They can get patents in the other forty countries with the identical protection, in the identical form and manner in which they get it in their own country by complying with the laws of these other countries within a certain time. Each country, while having its own law for the benefit of its own citizens, gives to the citizens of every other of the forty countries the same rights as are given to its own citizens. If ever there was an example of co-operation between nations for the benefit of humanity, and for the benefit generally of the industry of the world, it exists in that Union, from which I have never heard of anyone withdrawing, though they might have done so if it had been called a League!
The noble Lord also raised the point of the inventor having a right to have his name mentioned. He has that now. A patent can be obtained by a man who is not an inventor. He need not necessarily bring the inventor in, but if he does not bring the inventor in the law provides at the present time an easy way under which the patent can be opposed at the Patent Office in order that the inventor's name can be added. But under the Convention that we are about to ratify there is a new provision, Article 4 ter, which says that "the inventor has the right to be mentioned as such in the 476 patent." It is because of that new and definite right given to the inventor in this Convention, arising out of the meeting held in 1934, that this simplification of the existing law has been introduced in this country as it is also being introduced in all the other forty countries belonging to the Union. All that a man has to do at the present time is to oppose the patent and he can get his name inserted. All that he will have to do hereafter is to apply to the Patent Office to have his name included. There is therefore nothing revolutionary in this, but it does give to inventors everywhere that which has been the system in this country—namely, the right of having the inventor's name mentioned. It is making it obligatory that the forty countries should all be as honest as we are in Britain and put the man's name in. Consequently it is something that everybody should welcome. It does give to the workman an opportunity of saying to his master: "I understand you are applying for a patent in connection with this; you know that I have suggested many features which have made the thing successful, and you should mention my name." If the employer does not so mention his name, the workman has a right to go to the Patent Office and say: "I was responsible for a part of this invention"—it may be a major part or perhaps the whole of it—"I want my name mentioned."
That is all this Bill is about. It does give the workman, or any person who has been employed to assist in the development of an invention, the right to have his name mentioned in a patent when it is granted. It does not make him the co-patentee; it does not make his name that of the person owning the patent; but it does preserve for him with all those who know him that characteristic dignity that he wishes to have, and that kudos that he wishes to have associated with his name as showing that he is something more than an ordinary workman, that he has developed the patent, and that in his master's patent his name is mentioned. It gives something that will show he is not one of the ordinary or general run of people who do not think about their work. This Bill does bring other countries into line with what we now do in this country. We do give to the workman to-day, and we give to the capitalist to-day, the opportunity of linking himself with other 477 people in connection with any invention for which a patent is to be granted. The noble Lord has had a wonderful experience, which I certainly have not had. He said that in order to have a successful patent you must have a million of money behind it. The noble Lord's friends are millionaires; mine are not; and, that being so, he may have come in contact with people who feel that because they have millions they can defy anybody. That has not been my experience during the last two or three years.
I am perfectly certain that this Bill will remedy certain misconceptions. In Committee there may be one or two points to be taken which will make for clarity. When the noble Lord said that in some countries there is a difference of opinion as to what is an invention I would point out that there is the same difference of opinion in this country. I may remind him of what may occur in our English Courts. I have known the High Court to give one opinion about a patent; I have known the Court of Appeal to give another opinion about the same patent; and I have known this Assembly, the House of Lords, to declare that there was no patent and no invention at all. That being so, your Lordships will realise that the differences existing in other countries on this matter are not peculiar. Human nature is involved, and the intricacies of the mind are manifold. Fortunately we do not all think alike, but when it comes to dealing with patents and you remember that three Courts in this country may all give different views with regard to what constitutes an invention, I do not think there is any ground for suggesting that in this Bill you are going to introduce greater difficulties in the Patent Office when you suggest that they should examine what has been done in another country as well as what has been done in this country.
I welcome this Bill. I know something about the difficulties. It has not been my experience to deal with either fools or madmen. It has been my experience to deal with people associated with industries that are world-wide. But for their inventions the world would be poorer, and but for the existence of the patent law we should be poorer and the nations of the world generally would be poorer, because at the foundation of every industry there is an invention and at the beginning of every new thing there 478 is a patentee or a workman who has worked hard to make it a success. What this Bill does is to continue the 315 years' tradition which is the glory of England as the leading manufacturing country. We recognise here that when a man develops something he shall have the right for a short term of years to develop it to his own advantage, and that no one shall rob him of that right because he has the patent. I congratulate the Government on bringing in this Bill. I hope the noble Lord's acquaintances who are outside the 75 per cent. to which he referred will find this a good Bill.
§ LORD TEMPLEMORE
My Lords, I am much obliged to my noble friend for his support of the Bill, and to the noble Lord opposite (Lord Strabolgi) for the remarks he made. I may say that I think most of the remarks that he made and the faults which he found referred to Committee points, and he will not expect me to go into details upon them now. I am very glad he recognised the reasonableness of the Government in this matter. I am a most reasonable person, and the Government are also most reasonable, and instead of giving simply a week between now and the Committee stage we are giving the noble Lord something like six weeks, which is plenty of time for even his ingenious brain to invent any Amendments he can think of. There are one or two points I should like to comment on. The noble Lord rather found fault with the Patent Office as being somewhat deficient in their search for novelty. I can only say that the search for novelty is being continuously extended, and they try to keep as much up to date as possible in that respect.
I am the last person to make any reflection at all on our Patent Office. I went out of my way indeed to praise it. But it is a question of practice. It is not the practice here to make the exhaustive search that the Americans and the Germans in particular make. Whether that is a good thing or not I do not pretend to say.
§ LORD TEMPLEMORE
My Lords, the noble Lord had a good deal to say about Clause 8. I should like to say that it has nothing to do with third-party rights, and it is merely put in to give effect to Article 4, Paragraph A-2 of the Con- 479 vention which relates only to cases in which a Convention country itself treats an application made at, say, the International Office of the Industrial Property Union at Berne, as being equivalent to an application made in the Convention country itself. As to appeals from the Comptroller in certain cases, it is only in a limited number of cases that the position is doubtful. But it is an important point, as the noble Lord said, and I will bring it to the notice of my right honourable friend the President of the Board of Trade. As I have said, I think most of the remarks the noble Lord made on this Bill are on Committee points, and there I will leave the matter for the moment. I hope your Lordships will now give the Bill a Second Reading.
§ On Question, Bill read 2a and committed to a Committee of the Whole House.