§ 5.39 p.m.
§ Order of the Day for the Second Reading read.
My Lords, I beg to move the Second Reading of the Patents and Designs Bill, 1946. It comes to us in this House first before it goes to the other place, and if for that reason 198 alone I hope you will allow me to take rather longer in explaining it than might otherwise prove agreeable to the House. There is also another reason why, with your permission, I will take this Bill rather deliberately. I refer to the great variations of knowledge, on the subject of Patent Law between different members of your Lordships' House. I know that on this, as on all other subjects, there are probably one or two noble Lords who know as much as, or perhaps more than, anybody else in the country, but there may be one or two noble Lords who know as little as anybody in the country.
While it is highly imprudent to describe a measure as non-controversial—it is the surest way of provoking controversy—this, at any rate, can fairly be described as a non-Party measure, and one which is likely to prove, and indeed is proving as far as we can judge, highly acceptable to all sections of organized industry. Finally, by way of introduction I may mention that Clause 1—the clause which your Lordships may wish to ponder most carefully—represents an agreement reached during the time of the Coalition and Caretaker Governments.
The language of the Bill is not readily intelligible to those who know as little about Patent Law as some of us may find we do, but its main objects are perfectly clear and I will state them straight away. First, this Bill will enable inventors who have been prevented by the war from working patents in their possession to obtain a compensatory extension of the term of their patents much more cheaply and much more simply than is possible at present. Secondly, the Bill protects those at home and abroad who disclosed their inventions to the Government in the interests of the war effort without having time to make application for a patent—it gives thorn priority over anybody who has subsequently applied for a patent for the same invention. Thirdly, it throws completely open to our people, without arty patent: restrictions, all German and Japanese inventions which were made during the war or in the period just before the war. Those are the three broad objects of the Bill.
None of these purposes can be achieved under the law as it stands. The Bill achieves the first of them, the extension of term, in Clause i; the second, that is the protection of war-time disclosure, in 199 Clauses 2 and 3; and the third, that is free British access to German and Japanese inventions of the war period, in Clauses 4, 5 and 6. You will observe that the Bill confines itself to dealing with special circumstances which have arisen out of the war; it does not attempt to deal with major long-term issues. You will recall that during the period of the Coalition Government a Committee under the chairmanship of Mr. Kenneth Swan, K.C., was set up to make a comprehensive review of Patent Law. The terms of reference of the Swan Committee were very wide and Clause 1 of the present Bill represents its interim findings, but before we tackle still more fundamental issues I am sure you will agree that we must wait for a later report from the Swan Committee.
To-day, then, we are simply being asked to consider special legislation to deal with a special ad hoc situation arising from the war. I hope you will bear with me if, for a few minutes, in order to explain the background of the immediate problem, I attempt, in an amateurish way but with a hand which has been guided by the best professional advice, to trace the main outline of the Patent Law of this country.
You will ask, my Lords, or some of you who are as uninstructed as I was until recently will ask, a few simple questions. What is a patent? How do you get one? How long does it last? Where does a British patent run? A patent is the exclusive right for a limited period to manufacture, use or sell an invention. You obtain a patent from the Crown by applying in the prescribed manner to life Patent Office, which, as noble Lords will know, is an office under the wing of the Board of Trade, and by convincing them that you satisfy various conditions. The three most important conditions which you have to satisfy are these. First, you must make full disclosure of your invention. Secondly, you must be the true inventor yourself, or his representative, or at any rate the first importer, if the invention comes from abroad. Thirdly, your invention must really be novel. To use the old phrase, it must be a manner of new manufacture. I should add that you have an appeal from the Patent Office to the Patents Appeal Tribunal, which consists of a High Court Judge.
Where does a British patent run, and how long does it last? It runs in the 200 United Kingdom and in the Isle of Man. It lasts for fifteen years, provided that a renewal fee is paid each year after the first four years and provided that it is not revoked, as it may be for a number of specified reasons. If you can prove that you have been prevented by circumstances from obtaining adequate remuneration for your patent, you can obtain an extension for periods up to ten years. I would stress the fact, in view of the proposal that is shortly to be made in Clause 1, that these extensions have to be obtained, not from the Patent Office, from which you get your original patent, but from the High Court. That gives a very brief survey of the background.
Now I will come to the clauses of the Bill. Clause 1 is intended to help the considerable number of patent holders who have been prevented by the war from working their patents and many of whose patents are now running out. Take, for example, the inventor of bakery machinery—I am told this is a good example, but it is not one which would readily have occurred to me—who got his patent in 1930. His plant, machinery and staff were probably taken over for war production and he probably had to close down or much reduce his output of bakery machinery during the war. Under the existing law he will almost certainly get, in the end, an extension designed to put him, as far as his patent goes, in the same position as if the war had not occurred, but the procedure is unnecessarily cumbersome and expensive—I would emphasize those adjectives—so that in many cases he may be deterred from making an application at all. Without going into all the steps involved, I would point out that his case has always to receive a hearing in the High Court, at which both he himself and the Patent Comptroller—the latter acting through the Board of Trade Solicitor—are represented by counsel. Our bakery machinery inventor has himself, of course, to bear the expenses of both sides—his own and those of the Patent Office.
I thank the noble and learned Viscount for the intervention and correction.
201 As the Swan Committee point out, even in the simple and unopposed cases (and 149 out of 150 cases, when the Swan Committee reported, had been unopposed), the costs falling on the applicant—that is the inventor—are at present between £150 and £200. That is perhaps the most important single sentence that I would like to lay before your Lordships in relation to Clause 1. This although in 90 per cent. of cases the extension granted by the Court is precisely that considered suitable by the Patent Comptroller, so that the Court hearing is often little more than a formality.It has been represented to us"—say the Committee—that this heavy cost amounts to a denial of justice to the large body of patentees, the majority of whom, having already suffered loss or damage on account of the war, cannot afford to incur expenses upon the scale involved under the present practice. We have been convinced by thy arguments put before us, and we are of the unanimous opinion that the existing practice urgently needs modification.I shall be very much surprised if your Lordships do not agree with this unanimous finding of the Swan Committee.
In what it actually proposes to put in place of the existing procedure Clause 1 of the Bill follows the recommendation put forward by eight out of the ten members of the Swan Committee. The proposed procedure consists of giving the applicant—that is our distressed bakery machine inventor—a right of choice, which is something that he does not at present possess. In future he will be able to go either to the Court, as he now goes when he wants an extension, or to the Patent Comptroller as he now goes when he wants a patent granted in the first place. He will have that choice. It would still rest with the Patent Comptroller, under the proposed procedure, if the case raised issues of exceptional legal complexity, to refer the case to the Court, but that: would seldom arise, and in the great majority of cases it is expected that the Comptroller would be able to grant an extension, after, of course, careful examination of the evidence, but without the need for any hearing in front of himself—that is, without any hearing at all. I think that is very important.
It is probably an under-estimate to say that the cost could be reduced in this way from, say, £175—that is, half-way be- 202 tween the 200 and the £150—to £50 in a simple unopposed case. The reduction would certainly be of that order—probably greater. The big drop, of course, would flow from simplification of the procedure, from the elimination of a hearing in the majority of cases, and from the fact that even when a hearing did take place it would usually be before the Comptroller where solicitors and a patent agent can appear for a client, and where hearings are distinctly cheaper than they are in Court.
Your Lordships may be a little slow to welcome a proposal which may seem to expand the area of quasi-judicial power under the control of the Executive. You will recall, however, that under the Trade Marks Act of 1938 the re is a precedent, one may fairly say a successful precedent, for the procedure of allowing the applicant an option of applying to the Comptroller or to the Court. You will also recall that the compromise suggested by the two dissenting members of the Swan Committee, the policy of allowing the easier cases to be decided by the eminent Court officials known as Masters, was decisively rejected by 8 out of 10 of the members of the Committee after one of the Masters had been heard on the subject.
You will further be reassured to observe that: the inventor, while gaining new rights, loses none that he possesses at present, and that the proposed novel procedure applies only to cases of war loss. The ordinary peace-time extension of term which may raise grave issues between citizen and citizen will still have to be taken to the Courts of the land. Fortified and comforted in this way I hope you will see your way to applaud Clause 1 of the Bill as a genuine boon to inventors and to industry at large.
If I have carried you with me so far, I shall be disagreeably surprised if you are not still more sympathetic towards the remaining clauses. Clauses 2 and 3 both seek to protect, though from different angles, the patriotic inventor who placed an invention in the field of Radar, for example, at the disposal of the Government during the war without delaying to apply for a patent. Clause 2 is the international clause. Suppose your invention, disclosed to the Government here, was then communicated to the American Government by our Government, 203 and suppose your invention ultimatel passed into the knowledge of some enterprising American citizen. Without Clause 2 such a gentleman could get a patent ahead of you, although you were the inventor, and could shut you out[...] both in this country and in America. The same unfair advantage—unless some reciprocal arrangement were entered into with America—could be obtained by a British citizen who picked up in a similar way what was originally an American invention. All that is made impossible by Clause 2 which secures to the true inventor his priority in the queue of applicants for a patent—a priority determined by the date when he first communicated his secret to the Government.
I should like to stress the reciprocal character of this Clause 2. Taken by itself it would ensure our war-time inventors of their proper priority here against the kind of contingency which I have described, but it is, in fact, a part of an understanding reached with the American Government, who, on their side, are promoting [...] similar proposal before Congress. [...] both the American Legislature and our Legislature act as we hope they will, American war-time inventors will be protected here, and in return our war-time inventors will be protected in America. In other words, the true inventor will be protected in both countries whatever his nationality. Similar reciprocal arrangements will be reached with other countries who desire them.
Clause 3, still dealing with the same general topic, is a corresponding domestic clause protecting inventions disclosed during the war and operated secretly by the Government at home. At present if some noble Lord—looking around I do not see any eminent scientific Lord here, though I may be mistaken—shall we say if some well known member of this House such as Lord Cherwell, had disclosed an invention to the Government during the war, and the Government afterwards secretly worked it, and if I picked it up and, what is most improbable, understood it—and was able to persuade people that I had invented it myself, which is still more improbable—there would be nothing to prevent me obtaining a patent for the noble Lord's invention. Clause 3 puts it 204 beyond all doubt that Lord Cherwell in that situation would be able to secure his own patent and the revocation of mine. I am sure you will all agree that Clauses 2 and 3 represent proper and, indeed, essential arrangements.
Clauses 4 to 6 can perhaps be taken together. They touch on a new theme. The broadest object of these clauses is to deprive inventions and designs made during the war period in Germany and Japan of any protection in the United Kingdom. Clause 4 makes it impossible for any patent to be granted on behalf of any inventions made in Germany or Japan or by a German national in enemy territory since September 3, 1938 (except, generally speaking, where the invention passed out of German or Japanese hands before the outbreak of war). Clause 5 refers to the mass of information available in specifications or designs which were submitted to the Comptroller by Germans and Japanese just before the war, but cannot be published under the existing law. I know that this matter was of considerable interest to your Lordships when there was last talk of patents in this House. I have in mind information in connexion with patent applications which were still under consideration when war broke out. This information was placed at the disposal of the Services and Supply Departments during the war, and it will now be freely available for industry.
Clause 6 is necessary because, under an Emergency Act passed at the outbreak of war, the Comptroller had wide powers to extend the time within which the formalities necessary for securing or maintaining a patent have to be completed. Clause 6 specifically enables the Comptroller to refuse this period of grace to Germans or Japanese and, I may add, to citizens of those countries who do not grant us reciprocal extensions of time on their side.
May I briefly sum up the position now reached regarding enemy patents, remembering, of course, that Germany and Japan were both parties to the International Convention before the war, but that those and other rights are lost to them so long as they continue to be regarded as enemy countries, as they are to-day for purposes of the Trading with the Enemy Act?
British patents for German and Japanese inventions are of four kinds. First, those which were granted before the 205 war. About these one thing is certain, they will not be returned to the ex-enemy proprietors. Indeed, so far as German patents are concerned, Article VI of the Final Act of the Paris Conference on Reparation provides thateach signatory Government shall, under such procedures as it may choose, hold or dispose of German enemy assets within its jurisdiction in manners designed to preclude their return to German ownership or control.Secondly, inventions for which applications were under consideration at the outbreak of the war. The Bill throws these and all the information relating to them open to all of us. Thirdly, inventions made during the war period, the period since September 3, 1938. The Bill before us makes it impossible, as it might not otherwise be, for patents to be granted for these at any time. Fourthly, inventions which may be made in the future in Germany or Japan. The treatment of these will, of course, depend on many decisions yet to be made, whose discussion would carry us far outside the Bill before the House.
In conclusion, I ask your Lordships to treat this Bill as a matter of urgency. There is considerable pressure from industry for Clause 1. The interim report of the Swan Committee was dated March 12, 1945. Again, it is expected that the United States legislation analogous to our Clause 2 will be passed at a fairly early date. Under that legislation applications will have to be filed in the United States within six months of its passage. Furthermore, if British subjects are to obtain its benefits, we have to give assurances that similar benefits will be given in this country to United States citizens, and we cannot give these assurances until the present Bill becomes law. The proposals of the Bill regarding German and Japanese patents speak, I think, for themselves. I ask your Lordships to give this Bill a Second Reading.
Moved, That the Bill be now read 2a.—(Lord Pakenham)
§ 5.58 p.m.
§ VISCOUNT SWINTON
My Lords, I am glad to find myself for once able to give the most whole-hearted support to a Bill produced by the present Government. It is a very good Working Party for once. I think I like all of it subject to one question which I am going to put to the noble Lord on Clause 4, which I think requires 206 some consideration. Undoubtedly Clause is right. One has got to remember that the extension of a patent is not an administrative, but a judicial act, and therefore I have no doubt it is right that the ordinary procedure in normal cases should be maintained, that this should be a matter for the Court. But there has been a tremendous amount of delay. There is a great number of these cases lining up, and, as the noble Lord has said, in the great majority of them there is no question of opposition. It seems to me entirely reasonable that we should do the two things which it appears to me to be necessary not only in patents but in litigation generally—the it we should as far as we can, make our action both cheap and expeditious. The Comptroller is a man with great experience, and wherever there is a case which ought to go to the Court, then, as I understand it, there is full discretion—indeed a duty—reserved to the Comptroller to see that the Court deals with tray case which he considers ought to go before a Court.
Clause 2 is altogether admirable. I take it that here we are only concerned as between ourselves and the United States, because it is only with the United States that the bulk of our pooling of scientific knowledge and inventive genius took place. I am not quite sure whether, at an earlier stage in the war, certain communications were not made to the French Government. Perhaps the noble Lord can give me an assurance on this point, that anything in relation to inventions made during the war which was communicated to the French Government would be protected. If it is so, then our reciprocal arrangements should be wide enough to cover any pooling that has taken place. This clause does deny to an applicant for a patent here from a foreign country any right to receive a patent unless reciprocal legislation has been passed in his own country.
My Lords, the noble Viscount appreciates that there is no specific reference to the United States in that clause.
§ VISCOUNT SWINTON
No, I understood that. I know there is no specific reference. The clause I say is rightly drafted because it protects a man here and it also ensures reciprocity from another country by saying that a national 207 of another country, who wishes to get protection here, by reason of communication under a pooling arrangement, shall not have an audience and right in the British Courts unless his country has passed similar legislation for the benefit of a British subject applying for a patent there. That is perfectly right as far as legislation goes.
The noble Lord has quite rightly told the House, and I am glad to hear it, that progress in the United States is likely to be rapid, that the United States have not only agreed to this but hope to get their legislation through soon. I sincerely hope legislation will be passed shortly in both countries. It obviously would be unfair if one lagged behind the other. I would hope that we might compete in this case. I hope that Congress will try to see whether they cannot get on with as much hustle as that with which we are getting on here. That clause I think is altogether good, and I have nothing to say about Clause 3 which is largely consequential.
With regard to Clause 4, I do want to raise a question of principle. Germans and Japanese who made their inventions during the war should, of course, certainly not be able to come here and patent them. That is obvious. And other people, British subjects or people of other nationality, who got to know about German or Japanese inventions should certainly not be entitled to come here and seek to get a patent on the strength of an invention which was not theirs but which was invented by the enemy. It is wholly desirable that this great mass of knowledge which we are now getting about German secret processes should be placed at the disposal of all industry.
I want to put this to the noble Lord. The clause as drafted is absolute. It says that you cannot get a patent if the process was invented by a German or a Japanese during the war. Now this might well happen, because great minds, scientific minds and inventive minds, have moved on the same lines. There are a number of cases in this country, as I understand it, where inventions have been made by British subjects, and in respect of which they have applied for a patent, but no patent has been granted, because a patent involves the publication of a specification. The granting of a patent has been deliberately held up during the war in 208 order to preserve the secrecy of the invention; but, at the same time, the inventor has not only been permitted, but has been urged, to go ahead and develop his invention, to set up a factory and manufacture on this process.
It may very well be that during these six years of war some inventor in Germany has invented exactly the same process. The English inventor who made his invention had no possible means of knowing anything about what was going on in Germany. He could not know. But he made his own invention, applied for his patent and set up his factory here. We now have access to all these archives which record German ingenuity, and it may be found that when nobody here could know anything about it at all—possibly six months before the English inventor made his invention—there had been anticipation in Germany. I am not sure that it would matter whether it was six months before or six months after under the clause as drawn, because I think if the invention had been made in Germany at all the British inventor would not be entitled to have his patent. But let me assume that anticipation is a factor in this. In 1941 an inventor in Germany makes an invention. No one knows a thing about it outside Germany. Six months later an English inventor invents exactly the same thing, and sets up his factory. I do suggest—indeed I contend most, strongly—that the British inventor, who has put a great deal of money into it, should not be prevented from getting his English patent because it is subsequently discovered that a German had made the same invention in Germany. I hope the noble Lord will look very carefully at this, because I am advised that under the clause as it stands those patents which the Government quite rightly held up and refused to grant here, in order to preserve the secrecy of the invention, will now be turned down if it is discovered that there was a German invention of the same kind. I hope that that will be most carefully looked at.
§ VISCOUNT MAUGHAM
I hope the noble Viscount will forgive my interrupting him. No doubt that question does require looking into. I have never charged my memory on things like this, although I was at one time very familiar with this branch of the law, but I am 209 inclined to think that use in Germany of such a patent would not prevent the obtaining of a perfectly good patent in this country. Publication by some document or other, such as a scientific journal or something of that sort reaching this country, would, I think, have made the patent invalid, and one has got to distinguish between the two things, use in this, country and publication here, and something which has not been used here at all.
§ VISCOUNT SWINTON
I am very much obliged to my noble friend, who not only was a great patent judge, but made a very large income out of a great many patent cases. Anybody was extremely wise who tried to retain him in a patent case.
§ VISCOUNT SWINTON
My knowledge of patent law was never anything like as great as his, but I was advised that the law which the noble and learned Viscount has expounded is exactly right, and that a British subject would, apart from this new legislation, be entitled to get his patent unless there had been publication. This would prevent the ordinary law operating, as I. read it and as I am advised under Clause 4 as drawn, there cannot have been any publication here because everything has been kept secret in Germany. If it has been kept secret in Germany and there has been no publication here, and it is discovered that such an invention was made in Germany—
§ VISCOUNT SWINTON
The test is the making of the invention, not the communication. There could have been no communication from Germany. Therefore you are putting the British inventor in a far worse position by this Clause 4 than he would have been under the ordinary law. I am perfectly certain that is not the intention. I am perfectly certain the intention of the Government and the Board of Trade is that people who had not invented the thing themselves should not get hold of a German invention and pass it off as their own. But where a British subject has made his own genuine invention, without any knowledge of the German invention, then certainly I 210 contend that the British inventor ought to be entitled to his protection. I think it is a very important point and I deliberately raise it here on the Second Reading and not in Committee because I am sure the noble Lord will want to look into it, and we can discuss it further in Committee. But apart from that, I must say I think this is a most desirable Bill and I only wish we could have more of the same kind.
§ 6.12 p.m.
§ VISCOUNT MAUGHAM
My Lords, may I say another word on this point we have just mentioned and which I think is very interesting. The probability is—and I am suggesting this to the noble Lord in charge of the Bill—that what he really wants is, after the words in line 6, "invented or designed in Germany or Japan or by a German national," the following words added: "and published in the realm of Great Britain." I think that would probably get what he desires. The application may be refused if the invention has been published here. The mere invention, as if think my noble friend Viscount Swinton said, is, according to my recollection, irrelevant in the obtaining of a patent here.
With enormous deferenc e, may point on: that it is not completely irrelevant under the Bill before the House?
§ VISCOUNT MAUGHAM
I use the word "irrelevant," meaning only that it will not be a bar to a good patent here.
Without wishing to lay down the law on that point, may I call attention to Clause 4 (3) (b) where the date of the actual invention or design is relevant? But perhaps I may say a word on the subject at the end of the debate.
§ VISCOUNT MAUGHAM
There is only one other thing I would like to add, which perhaps is irrelevant, but it: is as well that people in charge of these things should be reminded of the fact. In the course of this last war it was ascertained in the United States that almost every patent granted as the result of communication of a German patent has been fraudulent in the sense that the specification has been found, since the war, to be a deliberately imperfect specification. Therefore people who attempted during the war to 211 use the patent found that the whole thing had to be reinvestigated and that the patents were in substance bad ab initio. I know it may be said that that is outside the scope of this measure, and I do not know how far that has been ascertained by manufacturers here. However, we have been allowed to use English patents communicated from Germany during the war, and I do not know how far our experience has been similar to, that of people in the United States. If it is similar, I myself think something should be done about it.
§ 6.15 p.m.
§ VISCOUNT SIMON
My Lords, I promised the noble Lord opposite that I would, on this Second Reading debate, say a word, because when I was Lord Chancellor the provision which is in Clause 1 of the Bill was submitted to me and I expressed a view about it; and it is right, if it is any service to the noble Lord, that I should say that I then did express the view, though with very much less detailed knowledge of Patent Law than my noble and learned friend who has just spoken, that I thought the provision in this clause was justified. The noble Lord has explained, with remarkable clearness, what the change is. Of course, as things stand at present, if a man who was the owner of a patent—the patentee—by reason of hostilities has suffered loss or damage—for example, if he has lost, because of the war, the opportunity of dealing in or developing his invention—then he may make application, as the law now stands, by a simple process called an originating summons, and the patent judge may grant him an extension of his patent for so many years and may indeed have regard solely to his loss or damage. That is the present system, and my own information, which, of course, is not so authoritative as that before the Kenneth Swan Committee, is that it does involve sometimes quite considerable expense, although no reasonable person would dispute that it is right to extend the patent. I therefore am of the opinion, and I expressed it in the course of the late Government, that this clause was justified.
But your Lordships must always bear in mind that in these matters of patents there is a third party whose interests have to be most carefully guarded. There is the Patent Officer on the one side, and 212 the patentee on the other side. But every patent is a monopoly and it has the effect of excluding other people, third parties, the mass of the public, from maybe the rights they would otherwise enjoy. Therefore it is of great importance that the third party should be adequately protected. As long as the existing law remains, one of the duties of the man who applies to extend the life of his patent is to advertise that it is his intention to make such an application, and that amounts to public notice to other people who can come forward, if they will, and oppose, arguing that it is not in the circumstances right to give the patentee a longer run than the ordinary law allows him.
I should like the noble Lord to tell us this in his reply. Although it is not provided for in the Bill, and although the Bill in terms abolishes the duty of the applicant to advertise his intention, I apprehend it is the intention still of the Patent Office, under the rules that it makes, to see to it that there is a public advertisement of the fact that this application is being made. Otherwise the whole thing might be disposed of in a room without third parties knowing anything about it. There are rules which can be made under the Bill and I should suppose the rule would be, not that the applicant had to do it, but that the Patent Office would see to it that this thing would not be simply done without any sort of announcement by anybody. The noble Lord will tell us about that in a moment.
The other point I want to make is this. I have inquired of judges who know more about the matter than I do. I quite agree with the recommendation of the majority of the Kenneth Swan Committee about this, and I do so simply on the ground that unless we change the law a number of people who have suffered already, because the war has interfered with them exploiting their patents, will be put to, it may be, very heavy expense before they establish their right to an extension. I think this change is not unimportant. Normally, under the present law, the Patent Office (which, it is quite true, considers the application for a patent in the first instance) in the matter of these extensions is something in the nature of a watch-dog; it is in the nature of an opposite party who examines the merits of an application for an extension, and indeed when the application is made 213 in Court it is quite common for the Board of Trade, on behalf of the Patent Office, in proper cases, to arrange for counsel to be there for the purposes of challenging the right to an extension. That is very important in the interests of the general public. But if you put your watch-dog in the seat of judgment, then where is the watch-dog? Who is going to see that the public are not unduly shackled by the continuance of a patent? I hope the answer will be that the Patent Office, under the proposed rules, will see to it that notice is given so that an opponent may appear. That would seem to be right and fair, but we shall hear about it in a moment.
The only other thing I wanted to say was that for my part, while I quite agree that this change is justified—and I have not heard it opposed; I do not think my noble and learned friend has anything to say against it—I do want to insist that, apart from this change, it is important that the existing jurisdiction of the Courts should be maintained as the sole and exclusive means of extending the term of years in other cases which have nothing to do with the war. After all, the grant of an extension is the grant of a monopoly; it does affect the public generally and may prejudice rival traders. I think, therefore, it is proper that such a decision should normally be treated as a judicial act between competing members of the public; and a judicial act ought not, in my judgment, to be discharged otherwise than in open court, and should not, as a rule, in the least resemble the departmental decision of a departmental official, who, presumably, sits in private. At least, I have never heard of the Press being admitted to a sitting in the Patent Office.
Therefore, I admit that this is an exceptional case which it is right to meet. But I think it is useful to insist in this debate that what is essential is that the change now made is a limited change to meet the undoubted special claims and difficulties of patentees who have been obstructed because of the war, and the more so because, I imagine, by far the greater number of, war-time extensions are really made as a matter of course, and because you do not want to use an elaborate machine if justice can be done to all parties by a much simpler process. All I wish to say is—and this is what I said when I was asked about the matter by 214 the Board of Trade when I had a responsibility which I have not now got—that I entirely agree with this proposal, on the clear understanding that it is not regarded as the thin end of the wedge for the purpose of removing from the jurisdiction of the Courts (who, I think, discharge this duty very well and with extraordinary knowledge), in a wider and wider field these difficult patent decisions, acutely contested, and to put them instead in the hands of an official of a Government Department.
§ 6.24 p.m.
My Lords, I would ask your permission to reply to one or two points, although I have already spoken. May I say what: encouragement one receives on a matter of this sort from the legal opinion not only of Viscount Simon but of Viscount Maugham as well. When I explained to one or two people what this Bill amounted to, they said, "You will have the lawyers against you, because it will take away business." The debate today has shown what a very base reflection on the legal profession that kind of view represents. I think we can console ourselves with the thought that the lawyers are with us this time, or, at any rate, that those who are against us have not got the hardihood to come and tell us so.
May I reply first of all to specific point put to me by the noble Viscount, Lord Simon? It is intended under the Bill that the Comptroller will advertise these applications in the Patent Office Journal and thus afford opportunities for opposition from interested parties, although, as the noble Viscount would be the first to realize—indeed, he has himself said so—it is not likely that such opposition will very often arise.
Yes, it will be done by rules, but provision for opposition is already made in the Acts. The noble and learned Viscount Lord Maugham put to me a rather general point which, as he confessed, did not tie itself up very closely to the Bill, an perhaps there will be an opportunity to deal with that on another occasion. There is no doubt that the difficulty that the noble Viscount, Lord Swinton, raised is one which requires careful consideration, and I can say 215 it is under consideration already. I am very glad that he was good enough, not only to give me notice in advance that he was going to raise that point, but also to raise it at this stage because it does give one warning before the Committee stage is reached and it is probable therefore that in this way we shall arrive at a more satisfactory arrangement in the end.
I will not attempt to offer to-day a very authoritative opinion on a matter where the highest legal authorities must clearly be consulted and given due time to make a pronouncement. I would lay before the noble Viscount these three possibilities, which undoubtedly he has in mind. We assume that some British inventor has applied for a patent since September 3, 1938, and we assume that during the same period some German made a similar invention. The British inventor may make his invention before the German makes his invention. In that case the British inventor is all right; he is protected if he makes his invention first, or so I am instructed. The noble Viscount will not wish me to go beyond the legal opinion offered me. That is the intention, but when we reach the Committee stage, or before it, it may be possible to go into the point still more closely. That at any rate is the intention, more particularly of Clause 4 (3) (b). On the other hand, it may be that the British inventor not only makes his invention after the German has made his invention but derives his invention from the German invention. In that case the British inventor is knocked out.
If he derives his invention from the German invention he is knocked out. I am distinguishing between these cases. In one case I have described, he is all right, and in the other case I have described he is knocked out. The middle case, I think, interests the noble Viscount particularly—namely, the case where the British inventor makes his invention after the German invention is made and is not aware that the German invention has been made. As regards that case, where the British invention is subsequent to the German invention but is not derived from it, all I can say is that the case in justice is being very carefully 216 considered. The noble Viscount will appreciate what I mean. I am very grateful to the noble Lords on the other side who have come forward in this very generous and co-operative way and I am sure the Government is also grateful for their support.
§ On Question, Bill read 2a and committed to a Committee of the Whole House.