I beg to move the Second Reading of the Industrial and Commercial Property (Protection) Bill, 1925. The Bill repeals all existing statutes with regard to patents, trade marks, designs and copyright and re-enacts with certain changes, the existing law, in this Bill which is now before the House. As it is sought to re-establish patent law in the country it is necessary that there should be set up a comptroller of patents, and a patent office, and this is done in the early portion of the Bill. The law relating to patents, trades marks and designs is very much the same for these three things; it is almost identical. The actual machinery is not so detailed in the case of trade marks and designs as in the case of patents, but it would run mainly on the same lines.
Copyright law does not follow the same line, but is somewhat similar. As patent law is the more detailed and technical, I want simply to give a sketch with regard to patents, and to state the history peculiar to this Bill with regard to several knotty points that have arisen in connection with patents, leaving it to be understood that some points will arise, and will be dealt with by the same methods as in the case of trade marks and designs, and simply stating, with regard to copyright, what the new provisions in this Bill are with regard to what they used to be.
With regard to patents there is a rather long and cumbersome procedure which it is necessary to provide or adopt in the machinery which is going to ensure something of a commercial value, and to ensure that the article patented has a commercial property afterwards. There are, roughly speaking, two systems with regard to patents in the world. One is the system which makes for long and accurate search for anticipation, so that when a patent is given as a result of such search with a definite implication that that specification has not been published before, the property is obviously of much greater value than where you simply receive an application for a patent, stamp it with the date of receipt, and leave the matter as to prior publication and novelty to be decided by a trial in the law courts afterwards. To take an example: The French system is merely stamping the date upon the application or specification after it is received. That marks one thing only, namely, the date upon which the specification was put in. Whether there was a prior application or not, as to something novel, is left to be determined afterwards. All that is done is that there is official signature or sanction given with regard to the date and that only. As to the other system, the British Patent Office system, it makes search for 50 years back, and all over the world, so that when a person gets a patent from the British office it obviously has a much higher value, commercially, than if such a specification were simply passed. We are adopting a sort of compromise, but tending towards the British system. It leans upon, and is aided by the British system. In order to get a fuller commercial value of the article, it is necessary that search for anticipation should be made over a long period, and it is necessary that that search should be made with great care, and consequently you have these cumbersome rules laid down here in the first 15 and 16 pages of this Bill. The operative date afterwards, with regard to the patent, is to be the first application, provided that the first application is followed up. It may lapse, but provided it is followed up by the provision of this specification, it is passed and sealed. The sealing dates back from the date of application, so that the date of application is an essential date, and the date by which priority is ruled. Now you have set out in a series of paragraphs the procedure to be followed. The application is made in the prescribed form with which there is a statutory declaration, and that is to be accompanied by a provisional or a complete specification.
Supposing, as would ordinarily be the case, that a provisional specification —an application with that specification—is handed to the examiner, who makes certain investigations and finally acknowledges the acceptance of the application, then after a certain period following the acceptance of the application, a complete specification must be filed. The provisional specification and the complete specification are then again handed to the examiner. He compares the complete specification with the previous provisional specification to see if they agree exactly, or to see if an attempt has been made, as sometimes happens, to get into the complete specification something not previously stated in the provisional one, or to get an earlier date assigned to what is actually a later application. Provided that the examiner reports that the specifications are substantially the same, then the complete specification is examined, not now in its relation to the provisional specification, but in its relation to the question of novelty. The question of the search then begins. With regard to the establishment of a patent office here, the system that will really operate for the future will be this: a person filing a specification will have to state with the application whether or not he has filed a specification and has or has not received a grant of a patent in Britain. If the British Patent Office has certificates for some fifty years back, any certificate from them would be more or less accepted here as being final and conclusive.
There will be, as from the date of the establishment of the patent office here, a new series of specifications. They will have to be filed and scheduled here and a comparison may have to be made in the office in Dublin. Specifications for patents existing prior to this are already in Dublin. The National Library has a complete copy of all specifications that are at present in the British Patent Office. While not quite up to the date of this Act, the copies of specifications are certainly up to the 6th December, 1921. There is in the National Library a record of the specifications connected with patents granted prior to that date. There has to be a junction as between the British system and the inauguration of the Irish system, and from this on the Irish system will to a great extent lean on British certificates. If there is a British certificate or refusal, these two things will have a tremendous influence on the mind of the comptroller of patents here. A search will be made here in certain cases, presumably in most cases, to follow out the ordinary run of a patent. Provided the search for anticipation shows there is actually a novelty and that there is some invention which is to be patented, then the complete specification is accepted and an advertisement of that acceptance has to be published. The advertisement is necessary because, within a certain period, people who hold that a prior right of theirs is being violated in the new specification will have the right to intervene and object to the granting of the patent. Provided that does not happen, the patent may be sealed. The sealing does not give an irrevocable right to the patentee because, within a year after, a person may apply for a revocation on much the same grounds as those on which he could apply within a period of two months if he had any objection to the granting of the patent.
That is the normal course from the first application, the search for anticipation, the granting and sealing of the patent, any possible opposition to the granting of the patent, any appeal or any application for a revocation. Leaving that out as the normal course, there is then this particular circumstance that had to be adverted to when the Bill was being introduced. There was the question of patents that operated here prior to the 6th December, 1921, and applications for patents which had been lodged here after 6th December, 1921, and prior to the commencement of this Act. With regard to patents that were filed and operated prior to 7th December, 1921, they will continue to hold good in the country. Certain fees may have to be paid under them, and these fees will be paid when certain lodgments of documents, etc., are made here, in accordance with our orders. The position between the 6th December, 1921, and the date of the commencement of the Act, is this: there have been almost 3,000 applications for patents made to date either to the Minister for Economic Affairs under one Dáil, or to the Office of the Minister for Industry and Commerce under another Dáil. There have been 2,300 applications for patents. Those were dated, and the date of application will be considered in contrast with the date of any similar applications for a patent that may have been lodged in Britain during that intervening period. The dates here, when they show priority, will be assumed to give priority. As I say, the date of application is the all-important date. The sealing process leads back to the date of application. There is an attempt made to protect those who did apply to the Minister here in that intervening period. With regard to the future, the application made after the commencement of the Act will be ruled simply by the procedure established here.
I leave out one section of this Bill, Section 41, because it is of a special nature, and I wish to direct special attention to it later on. There are, with regard to the normal patents, other provisions that I need not go into, such as patents of addition and licences of right. These are matters of a very technical nature, and if they are to be the subject of discussion, they would come up more appropriately on the Committee Stage rather than now. They are normal parts of patent work, but they are highly technical matters. Unless some Deputy is inquisitive, and wishes to raise the matter, I do not desire to go into those things at this period. The rights of patents are then established, and certain regulations are made with regard to patent agents, all these things being incidental to the establishment of a Patent Office in the country. Section 41 is an important paragraph, and it is a new paragraph as far as patent law in this country is concerned. It is based on the recognition of the fact that the granting of a patent is the granting of a monopoly.
That granting of a monopoly may be used, not so much to make articles and give services in a country, as to prevent articles from being made or services being rendered in a country. In order to prevent that happening, there is a provision made in Section 41 to the effect that any person interested may at any time apply to the comptroller alleging, in the case of any patent, that there has been an abuse. Certain abuses are then detailed, one of the most important being that if it can be proved that the article has not been manufactured on a commercial scale in the country, within three years from the date of the granting of the patent, then the licence can be dealt with in various ways. It can be marked with the phrase, "licences of right," which means that various people can get licenses under the patent on terms which are the same for everybody who applies. It really is an extension of the patentees' rights to everybody. The comptroller may get the patent and give the exclusive right to anybody in the country.
I refer to that because it is very important at this moment, taken in conjunction with the Electricity Bill. With the development of electricity in this country there is bound to be a tremendous development in the sale of electric appliances. Most of these electrical fitments are patented. Unless these patented articles are manufactured on a commercial scale in the Saorstát, within three years the patent rights can be confiscated and handed over to people who will manufacture in the country. So there is protection in that direction for any electrical industry that would be established, or, putting it the other way, there is definitely a stimulus to the production of electrical goods in the country under that section. The other important point is, of course, the time for which the patent rights subsist. The normal term is 16 years, but there may be an extension on good grounds put before the comptroller, such as, for instance, that the patentee has not got an adequate return from his invention. There may be one extension for five years, and there may be a second extension for five years. The normal period is for 16 years, with a possible extension to 21 years, and in exceptional circumstances, to 26 years or 26 years in all. That is the normal course in regard to patents.
Two difficulties that arise are the question of patents that are held in the country—patents that were filed and that were granted and were operative in this country prior to the 7th December, 1921—and patents for which application has been made since the 6th December, 1921, to the date of the commencement of the Act. After the commencement of the Act the thing runs smoothly and the position as it was prior to the 7th December, 1921, holds. They must accommodate themselves to certain regulations here and their patent right is preserved. As between that and the intervening period, from the date of the Treaty to the date of the commencement of the Act, it means that priority will be given according to the dates they were received. Certain applications have been received here and they were simply dated and held. These will have to be now considered by the comptroller and dated back to the original date of the application.
That same thing with regard to the time, the difficulty with regard to fitting in these things, holds in regard to copyrights and designs. The matter with regard to the identification of designs existing prior, and the identification of trade marks existing prior to new applications, runs much on the same lines. The machinery is not so involved because the matter is simpler and the property is not looked on as being so valuable. The question of date would vary of course. The copyright of design lasts only for five years, with a possible extension to a second and a third five year period. Ordinarily, the period will be five years; in circumstances that might appeal to the comptroller it will be extended to ten years, and in exceptional circumstances to fifteen. Trade marks run for fourteen years with a possible doubling of the time in exceptional circumstances. Just as Section 41 makes a special change in the law with regard to patents, there is a special change of a different type in regard to copyright and designs and it is this. To date, it has been possible to register such a thing as a place name in Ireland as the trade mark for goods that have no touch or no contact with the country at all. For instance, there may be a shamrock brand of certain goods.
From this onwards no one will be allowed to register a word or a place-name indicative of origin in the Free State as the trade mark of goods not manufactured or made up in the Free State. It will not be possible to put a design of a nature such as would recall the Free State or recall Ireland to the mind of the person buying unless the goods are manufactured or made up in this country. There again the difficulty comes in of, say, trade marks registered prior to the 7th December, 1921—a shamrock brand of something that was registered prior to the 7th December, 1921, and by the terms of this Bill carried over, having full force and effect in this country. It was thought desirable that just as no application for the registration of a new design would be allowed on any goods save such as were produced in this country, we must keep the old designs in line, and while we carry over the old designs and trade marks, there is a six months period from the date of registration here in which they may have to change the trade mark. That is to say, we do not suddenly cut them off, but there is a six months' period in which they must get something else as a trade mark. In other words, they are given effect to, but there is a six months' period after which they must make some change so as to get outside the terms that would apply to an application made for the first time in the country. That applies to both trade marks and designs, and that is the really important provision so far as trade marks and designs go. The date I have mentioned for the periods of designs is somewhat different to that in patents, for which I have given the details.
The question of copyright is pretty much the copyright law as it at present exists, and as it existed prior to the Treaty, with certain amendments that were brought in, mainly on the basis of a memorandum which was presented to my Department by the Irish Playwrights' Union. There are small points which will come up again on the Committee Stage rather than here. I may allude to one of them. Previously, the fact was that a playwright whose copyright had been infringed, had only an action against the person guilty of the infringement. In the case of a play where dramatic versions were given it was often hard to get at the actual persons infringing. It turned out very often that there were such things as school children giving performances of something and simply that the people in charge, either not adverting to or neglecting the question of the playwright's copyright, infringed and there was no redress. Frequently travelling companies came and were guilty of the same offence and they had disappeared before the unfortunate playwright discovered that there had been an infringement of his rights. For the future the onus is thrown on the lessee of the hall in which the representation is given, as being the easier person to get at, and in order to throw on that person the burden of the responsibility of seeing that the copyright is not infringed.
That is one big point. There are seven or eight minor points in which some distinction has been made in the Bill from what the old law used to be. The period of the copyright is different from any of these other things. Its period is the life of the author and 50 years after. There are certain other provisions which are put in here in a form for the acceptance of the Dáil. They may have to be modified in the Committee Stage if, in the meantime, we cannot gain the reciprocity on which some of the clauses are based. It will be found that in paragraph 175, for instance, there is a provision that the publisher of every book must within a month of publication deliver a copy of the book to the trustees of the National Library of Ireland, and a copy to the trustees of the British Museum, and such trustees shall give a written receipt.
Of course, unless we get reciprocity in this matter, that is to say, that the English law will be continued so that every publisher in Great Britain will deliver copies of all books published to the National Library, we shall, of course, not proceed with this arrangement. Similarly, with regard to the second paragraph, in which there is a rather obvious mistake, where the Library of the National University of Ireland is mentioned. The National University office is merely the administrative office of the three colleges, and there is no library in that office. Presumably, a room could be set apart for the reception of these books, but it would not do any good to anybody, and a proposal will be made to amend this, so that it will read: "to the libraries of the University Colleges of Dublin, Cork and Galway."
