Dáil Éireann debate -
Wednesday, 13 Mar 1929

Vol. 28 No. 10

Money Resolution—Industrial and Commercial Property (Protection) (Amendment) Bill, 1929. - Industrial and Commercial Property (Protection) (Amendment) Bill, 1929—Committee.

Sections 1 and 2 ordered to stand part of the Bill.

Mr. McGilligan

I move amendment 1:—

1. Before Section 3 to insert a new section as follows:—

Section 29 of the Principal Act is hereby amended by the insertion therein of the following sub-section in lieu of sub-section (6) now contained therein and the said section shall be construed and have effect accordingly, that is to say:—

"(6) No fees shall be receivable in the office in respect of any such patent as is mentioned in this section unless or until all copies and documents relating to such patent shall have been furnished to the Controller pursuant to sub-section (4) of Section 45 (which relates to the register of patents) of this Act, but the failure to lodge such copies and documents shall not relieve from the liability to pay any fees or from the consequences of the non-payment thereof."

This amendment is one of a group of four which were brought in recently, and the four have to be read together. This, it will be noted, refers to the new sub-section which it is proposed to insert, and to certain things which have to be furnished to the Controller—"until all copies and documents relating to such patent shall have been furnished to the Controller pursuant to sub-section (4) of Section 45." That refers to the next amendment of the four of which notice has been given. The new Section 4 insists that instead of the simple amendment which was being made in the Principal Act there is now going to be a completely new sub-section. That completely new sub-section has been so drafted as to set out in the paragraph itself all the documents that may at any time be requested. If I might go back again to the first amendment, it states: "That no fees shall be receivable in respect of any such patent as is mentioned in this section unless and until all copies and documents relating to such patent shall have been furnished to the Controller pursuant to sub-section (4) of Section 45." It goes on to state that failure to lodge such copies and documents shall not relieve from the liability to pay any fee or from the consequences of the non-payment thereof. That amendment has in the practice of the office been discovered to be essential. Now I must refer to the second amendment. The Controller has found it necessary to call for more documents than what he actually could have called for. Under the Act as previously drafted, under that particular rule of the Industrial and Commercial (Protection) Act, more documents were even called for than what were absolutely obligatory under the old section. These documents have been in fact lodged, and no complaint has been made to date, because it has been realised by those who are looking for the benefit of different patents here that the particular documents called for were quite reasonable. This amendment which is before the Dáil simply states that fees for these documents when they are lodged cannot be received by the office until such time as all the copies and documents relating to such patents shall have been furnished.

Previously when I was speaking on Section 4, which it is proposed to amend by the second amendment. I pointed out that the practice of the office had made it essential, for the carrying on of the office business, to get copies of all documents pertaining to patents lodged here, even though the patents became operative in the Free State without any registration. In that way the patent became operative, but the Controller had power to call for documents only on the occasion of the payment of renewal fees. Renewal fees fall due in the fourth year. It was discovered under that particular section that in connection with what is described as "a patent of addition," for which there are no renewal fees payable, there was a gap in the Act, and that patents of addition need not be registered here, that the Controller had no power to enforce registration here. That was the effect of the old clause 4, the clause which is now going to be amended by the second amendment. This amendment simply refers to that, and satisfies this point with regard to the payment of fees. "No fees shall be received in respect of any such patent unless or until all copies and documents relating to such patent shall have been furnished.""All copies and documents" will now bring in copies and documents relating to patents of addition.

Amendment put and agreed to. New section ordered to stand part of the Bill.

Question proposed: "That Section 3 stand part of the Bill."

Mr. Lemass

The Minister, on the Second Reading of the Bill, undertook to give the Dáil an explanation of the term "any fee," as substituted for the words "the first fee."

Mr. McGilligan

This, again, is a difficult point. The first part of clause 3, in so far as it amends the Principal Act, merely effects a substitution of a period of time—a twenty months' period instead of a six months' period. Sub-section (2) will then read as it is, except that we insert twenty months for the six months, so that it would run, "for any period not exceeding twenty months from the commencement of this part of this Act, the prescribed time for the payment of the first fee which becomes payable under this Act in respect of such British patent." We are now moving, in addition to that, to change "first fee" into "any fee" and to put at the end of the Section "during such twenty months," so that it would read, "extend for any period not exceeding twenty months from the commencement of this part of the Act the prescribed time for the payment of any fee which becomes payable during such twenty months." That is to meet this case which might occur. Let us assume that the British patent year expired on the 15th October, 1927. The renewal fee would become payable between the 1st and the 15th October, 1927. The time for the payment of that fee might be extended for six months. Another renewal fee for the succeeding year, which would start on the 16th October, would become due before the expiry of the year preceding that in which the renewal fee is payable. Say it would fall due on 15th October. That period cannot be extended as the Act stands. Even if we substitute twenty months for six months, it only gives power for an extension—if the words "first fee" are replaced by "any fee"—of the period for the first fee payable. We want to get over that difficulty. There are cases actually known in the office in which this particular clause is necessary, because you will have the peculiar situation in which the Controller can only extend the period of payment of the fees by six months for the first fee payable, and the second fee, which would fall due for payment in the same fortnight, cannot be extended. The office would find itself in the peculiar position of insisting on the payment of the second fee and being able to extend the period of payment for the first. Consequently, we are moving to eliminate the words "first fee" and substitute the words "any fee," and the addition of "during such period of twenty months" puts a definite limitation on it. The Controller can only extend the time up to 1st June, 1929, and the fees for which extension can be made, whether first, second or succeeding ones, fall due within the twenty months.

Mr. Flinn

That explanation seems perfectly satisfactory.

Section 3 agreed to.

SECTION 4.

Section 45 of the Principal Act is hereby amended in the following respects and shall be construed and have effect accordingly, that is to say:—

(a) by the insertion in sub-section (4) of the said section of the words "except as respects entries of or relating to patents of addition" immediately before the words "it shall not be obligatory", and

(b) by the insertion after the said sub-section (4) of the following additional sub-section, that is to say:—

"(5) A British patent which is a patent of addition and is by virtue of this Act deemed to be a patent granted under this Act shall, notwithstanding anything to the contrary contained in this Act, cease to have effect in Saorstát Eireann on the 1st day of January, 1932, unless before that date certified copies of all entries in the British register of or relating to such patent shall have been furnished to the controller pursuant to sub-section (4) of this section."

Mr. McGilligan

I move amendment 2:—

On page 2, to delete lines 41 to 44 and substitute the following words:—

"(a) by the insertion in the said section of the following sub-section in lieu of sub-section (4) now contained therein, that is to say:—

"(4) Certified copies of all entries in the British register relating to British patents which by virtue of this Act are deemed to be patents granted under this Act and certified copies of the complete specifications and drawings on which such patents were granted and also such other documents as may be prescribed shall be furnished to the Controller, and such certified copies of entries in the British register shall be entered in the register of patents under this Act, but it shall not be obligatory (except as respects entries of or relating to patents of addition) to make such entries in the register until the first occasion on which certified copies of such entries in the British register are required by or under this Act to be furnished to the Controller."

I have already spoken of this in connection with another amendment. It simply takes out a phrase which it is intended to put in Section 45 (4), and puts in a completely new sub-section. That new sub-section contains a complete statement of the documents required.

Amendment agreed to.

Mr. McGilligan

I move amendment 3:—

On page 3, lines 1 and 2, to delete the words "certified copies of all entries in the British register of or" and substitute therefor the words "all copies and documents."

This again is, instead of demanding certified copies of entries in the British register, in relation to such patent, we insist upon getting copies of all documents relative to such patent, the point being that there are times in which the Controller finds it necessary to call not merely for certified copies, but for a certified copy of the British specification with drawings. In fact the Controller has called for, under the rules and regulations, an additional officially presented copy of the specifications drawings. Although these have only been called for in exceptional cases by the Controller, the Controller thinks it necessary that he should have the power not merely to call for certified copies of the entries, but, as is now proposed by the further amendment, that he should be given power to call for all copies and documents. The House is asked to give the responsibility to the Controller of deciding what documents he wants in order to have the formalities complied with. He is not confined to certified copies, as would be asked for here. Under the Principal Act he was left in a worse position in regard to documents called for. Indeed, if applicants had stood on their rights under the terms of the Act, a certain number of applications would, in fact, have had to be refused, or would have been left in a suspended state, because the Controller could not have been satisfied that he had got all the evidence which he thought necessary. As I say, the applicants, because they were looking for benefits did, in fact, accede to the Controller's request. We are now seeking retrospectively to give power to call for the particular type of documents which the office has thought necessary.

Mr. Flinn

Assuming that a provisional specification had been put in at the beginning, in which a man covered a good deal of ground, and which afterwards, on examination, he decided to abandon, in that particular case there is an amended specification. Would this cover the fact that the Controller could then require the original provisional specification, even though it might never have been fully pursued?

Mr. McGilligan

I do not think so, because the phrase has to be interpreted. Under the amendment he has power, instead of calling for certified copies of all entries, to call for certified copies of all documents relating to such patent. I do not think, in that case, that the document which the Deputy referred to would be considered a document relating to the patent. I do not think that the full specification which, in fact, was not intended to be covered afterwards, could be considered a document relating to the patent. It is a new patent—it is a different patent that has been applied for, and that, I think, would rule out the Controller in any case calling for the full specification which has never been followed up. In any event, that would be for a court afterwards to decide. I think it is clear that the document to which the Deputy refers could not be called for in that case.

Mr. Flinn

Our feeling is that the Minister should be able to get every relevant document. It is a question of whether or not this is too wide.

Mr. McGilligan

I think the word "relevant" is just the important word. We do ask for power to call for all documents relating to such patents, but "such patents" there will be interpreted by the particular application put forward.

Mr. Flinn

Sometimes it happens in connection with a patent that you put down certain things and afterwards abandon them, and they are not then disclosed. They can be afterwards taken as a separate patent. It sometimes is an embarrassment to a patentee that he should have to make complete disclosure of something that he might decide it was not the appropriate time to pursue. We think that the Minister should have all the relevant documents, but we are not anxious that that should be too widely extended.

Amendment agreed to.

Section 4, as amended, agreed to.

SECTION 5.

(1) Any inventor or patentee may (either for or without valuable consideration) make to a Minister on behalf of the State and such Minister may take on such behalf an assignment of the whole of or any share or interest in the benefit of an invention and of any patent obtained or to be obtained for such invention and where a Minister has taken any such assignment such Minister may (as the case may be) do or join in doing on behalf of the State all or any of the following things, that is to say:—

(a) develop and perfect such invention;

(b) take an assignment of any patent or of a share or interest in any patent theretofore or thereafter obtained for such invention;

(c) sell or lease either for or without valuable consideration any such patent;

(d) grant either with or without valuable consideration licences under any such patent;

(e) work any such patent commercially;

(f) form or promote an incorporated company or an unincorporated association of persons to develop and perfect such invention or to work commercially any such patent;

(g) do all such things as may be necessary for the maintenance or preservation of any such patent or be otherwise incidental to the ownership thereof.

(2) All expenses incurred by a Minister under this section shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

(3) In this section the word "Minister" means a Minister head of a Department of State established under the Ministers and Secretaries Act, 1924 (No. 16 of 1924).

(4) Section 46 of the Principal Act is hereby repealed.

(5) This section shall have and be deemed to have had effect as from the commencement of Part II of the Principal Act.

Question proposed: "That Section 5 stand part of the Bill."

Mr. Lemass

It will be remembered that there was considerable discussion with respect to this section when the Bill was being debated on Second Reading. This section proposes to give the Minister power to take an assignment of the whole or any share or interest in the benefit of an invention, or any patent obtained in respect to an invention; and it further gives him power to expend State money in the development and the perfection of such invention or the commercial working of it. It gives him power to sell or lease either for or without valuable consideration any such patent or grant a licence for any such patent. The very wide nature of the powers which it is proposed to give the Minister were adversely criticised by a number of Deputies, and the Minister more or less invited the House to submit amendments for its consideration when the Bill came forward on Committee Stage. It appears the Minister is anxious to have a try-out, in the discussion on this section, which will help him to draft the Bill that he is said to be preparing to deal with mines and minerals affected by Article XI of the Constitution.

There are two courses of procedure possible of which we have had experience. There is the procedure laid down in the State Lands Act of 1924, and the procedure suggested here. One imposes fairly considerable restrictions upon the Minister, and the other gives him very wide powers. The Minister is, apparently, anxious to get some medium course which, without being as wide as this section indicates, would at the same time not bind his hands so tightly as the State Lands Act of 1924. Apparently he hopes he will get some suggestion that will help him in that matter from Deputies here. We have been considering this question since the Bill passed its Second Reading, and it seems to us practically impossible for anyone except a highly skilled draftsman to frame an amendment such as the Minister requires. At any rate, it appears that in respect to this section there can be no very serious objection to putting in an amendment restricting the Minister to practically the same extent that he is restricted under the State Lands Act of 1924.

If the Minister wants money to perfect and develop an invention, he has to get the sanction of the Oireachtas finally for the expenditure, and the Oireachtas will, therefore, have an opportunity of considering the wisdom or otherwise of the action he is taking. If he secures or purchases a patent and it is proposed to sell or lease it or to grant a licence for it without valuable consideration, there is nothing to provide that the Dáil shall be taken into consultation —there is nothing to provide, for example, that the Dáil will exercise any control over the Minister with a view to seeing that he has done the best thing by the State. If the Minister takes an assignment of a patent, it becomes State property, and under this section he is empowered to give away that State property for nothing if he thinks fit, without having to come before the Dáil and to justify his action.

Now, we think, although the Minister should have power to do that, he should only exercise that power subject to the approval of the Dáil. The State Lands Act provides that where property has been leased by the State, or the State proposes to lease property, a statement in regard to it must be laid upon the Table of the House—a statement has been laid upon the Table to-day—setting out the person to whom the lease is proposed to be granted, the property included in the lease, and the rent or other payments proposed to be charged for such land or licence, and a statement also as to the conditions and the agreements proposed to be inserted in the lease. That lease or licence does not become operative until each House of the Oireachtas shall by resolution authorise it, with or without amendment, or on the expiration of 21 days after the statement is laid upon the Table of both Houses, that is to say, 21 ordinary days or 12 sitting days.

It seems to me that in respect of the powers the Minister will exercise under paragraphs (c) and (d) of this section, a procedure similar to the procedure laid down in the State Lands Act could be adopted, but could not of course be adopted in respect of the powers of the Minister in paragraph (f), which would require a different form for the supplying of the information. We do think that a strong case could be made out to put the Minister under an obligation to inform the Dáil and to secure the approval of the Dáil, if he proposes either to give away State property or to grant a licence to use State property, or if he is going to engage in a commercial enterprise for the working of a patent the benefit of which is assigned to him. As I said, we find it practically impossible to draft an amendment that would embody our ideas. It is a very technical piece of legislation, and only a highly skilled draftsman could undertake that task. Apparently the Minister himself is inclined to shirk it. At any rate, he finds it so difficult that he is trying to put the onus on somebody else to make suggestions. But it seems to me it is not unreasonable to ask that the procedure laid down in the State Lands Act should be followed in this case, that the information I have indicated should be given, and that there should be a period at the end of which the lease or licence will come automatically into operation, unless the Dáil has, by resolution, declared otherwise. I would like to ask the Minister to consider that matter, and, if he thinks a strong case exists for such an amendment, to get the Government draftsman to prepare it for the purpose of having it submitted to the House on the Report Stage. We are of opinion that the Bill would be improved by such amendment, but that we ourselves cannot produce it.

Mr. Flinn

I am very much in the same position as Deputy Lemass in this matter. The Minister has taken over the job of developing and perfecting an invention. There he is, undoubtedly, dealing with a highly speculative occupation. The experience of those who have had anything to do with it—and I unfortunately have had—is that it is practically impossible to say beforehand what is going to be the cost of developing an invention. You may run yourself into what seems to be a very good field, which may be followed for a considerable distance, but which may wind up in a dead end. The Minister has power to work any such patent commercially. Roughly speaking, the average number of patents that do work out commercially successful is extremely small. My feeling is that some machinery should be got by which the Minister would have some means of consultation commercially in relation to this matter. In relation to the particular invention which the Minister has in view the question is not a very big one, because he told us it is £5,000, and he envisages other expenditure of possibly £1,500. If that was the only case at issue my feeling would be to be extremely liberal in the power; but here you are setting down a system for the future, and, without any disrespect whatever to the Minister or his staff, the experience which they would have in evaluating an invention or deciding what was the best commercial way of operating it would not be very great. While my difficulty is that any amendments I felt like putting in always broke down on the ground that they were too rigid, Section 2 of this Bill says that all expenditure incurred by the Minister under this section shall to such an extent as shall be sanctioned by the Minister for Finance be paid out of moneys provided by the Oireachtas.

Those are, I take it, the moneys which the Minister for Finance would come for previously, but the difficulty with relation to an invention is that once you have started on a certain stage it may take charge of you to the extent that if you have spent £20,000 the only chance of making it good would be to spend a great deal more, and without restraining the Minister, and certainly without restraining him in this particular case, because I think the particular case he has has possibilities, the procedure here does seem to be altogether too open. No commercial man, as far as I know, would allow in the possession of his own subordinates or managers a power as broad as this in relation to so highly speculative a property, and certainly I think some restraint should be put upon the Minister, but if possible that restraint should be of such a character that you allow him some considerable latitude. I take it that the Minister's policy—I think he said it the other day—is that he did not envisage the Ministry going into this thing very frequently or to a very large extent. For that reason possibly we do not need to be as rigid in the matter as we otherwise would, because I take it that the procedure of the Government doing what the Government proposes to do in this matter will be tried out on this particular invention, and from the experience which the Minister would get from this particular case both he and the House might be in a very much better position to form legislation for the future.

Mr. Good

As was pointed out on the Second Reading, this is a section giving exceedingly wide powers, and as the Deputies on the other side have pointed out, there was a desire expressed, in some way, to limit these powers, as it was thought unwise to confer such exceptional powers on a Minister without reference to the Dáil. Like the previous Deputies, I have given some considerable consideration to the matter in the interval, and one finds oneself in a very considerable difficulty. Thus Section 5 gives the Minister power to take two steps. One involves expenditure, large or small. The Minister for Finance has told us to-day that before any expenditure is authorised by him it should be brought before the Dáil and the sanction of the Dáil secured. That gives us, to a certain extent, an opportunity of discussing any proposal which involves expenditure, but then, as has been already pointed out under sub-section (c), we have "To sell or lease for or without valuable consideration any such patent." That is a matter that is quite different from one involving expenditure. The Minister might say: "No expenditure was involved. Consequently it was not incumbent on me to bring the matter before the Dail." But important considerations may be involved without involving expenditure, on which the Dáil might like to express an opinion. There is no obligation in that case for the Minister for Finance or the Minister in charge of this Bill to bring the matter before the Dáil and to have the Dáil's view on it, and these are things in which, as anyone who has had anything to do with patents knows, that at certain stages, that is, the early stages, finance may not be involved. In the subsequent stages finance may be involved, so if we allow the Minister to take certain action without the approval of the Dáil we may find ourselves ultimately involved in an expenditure which it is possible the Dáil might not approve of.

Therefore for that reason I would like a clause inserted in this which would, in some way, place an obligation on the Minister to consult the Dáil from both points of view. I see some difficulty in drawing a clause to meet the particular matter we have in mind, and I would like if the Minister would see his way to approve generally of the principle and refer the drawing of a clause to those who are able to assist in the matter of these appointments—that is, to the drawers of the Bill.

Mr. Flinn

Is it not the difficulty really in this clause that we are authorising the Minister to engage in rather speculative commercialism? Our difficulty is to draft a restriction which will not make it impossible for that speculative commercialism to be successful. When you are engaged in commercialism in ordinary cases you want a considerable amount of liberality and freedom of action. Our difficulty is to find a point where you would restrain the Minister. To take the particular case, I frankly think we may draft a clause in relation to this which would be more or less good, but it will take a certain amount of experience by the Minister himself in working this particular episode out to find the real difficulties in relation to that clause. For instance, the Minister would, in relation to the particular case which he has in mind at the moment, as far as possible take the Dáil into his confidence as he goes along. A restrictive clause need not possibly be as severe now as otherwise it would have to be. My feeling is to regard this present thing as merely an experiment, and from the experience of it possibly to amend legislation later. I, personally, cannot draft a clause which is watertight and which does not put upon the Minister restraints which, as a commercial man engaged in the same activities, I would not find extremely hampering.

Mr. McGilligan

Deputy Good said that the Minister for Finance said to-day that the House would be consulted prior to any expenditure being incurred under sub-section (2) of Section 5. By the way, any words the Minister for Finance spoke have to be taken as not having reference to the particular thing which I referred to on the last day because that has gone a certain length and I hope the House will not ask that the Minister's words be taken as imposing on me the obligation of coming here and giving a full statement to this House within a short period of what has been done on this particular thing to date. I take the Minister for Finance's promise on sub-section (2) as applying to the future. Deputy Good says "Where it is a matter of incurring expense the Minister promised to consult the House." It is not merely a question of promise. He must consult the House, except again that the Contingency Fund is going to be availed of as I availed of it in this particular case. I must say that I would not like to rule out the possibility in another exceptional case of a resort to the Contingency Fund. The Minister for Finance was speaking of the general rule and the general rule will be that the Minister will come here. What he is going to say puzzles me, if it is going to give enlightenment to the House and not to rivals. He will say "I have an invention which is a valuable one." He will name a sum of money. There will have to be even delusion about the sum of money required. Next one might make a case as to the matter of the invention or the sum of money required and the Minister might come in and ask for four or five times more or might only ask enough to enable him to carry out a preliminary investigation or even the first stages of development. What is the Minister for Finance or any other Minister going to say when coming to the House in regard to an invention? He is simply going to say that it is an invention, that it is a good thing and that he wants money. What is the House going to say to him? The House is going to say: What is it? Is it a good one? Who has told you? What is it all about? What are you doing with it?

The more detail that will be given in reply to these questions the more danger there is that the whole thing will become public. Deputy Good fears that although expense may have to be authorised here if it comes to item (c) and (d) of Section 5, that as there is no expense to the State consequently the House would not be informed. But the House would have been informed previously under sub-clause (2) of any invention unless it happened to be one which the State had got without valuable consideration. In that case I do not know if Deputy Good would be so outraged at the State giving away for nothing what the State has acquired for nothing, but if the procedure of which the Minister for Finance has spoken is going to be followed it will be before the House. There is always a Parliamentary Question to discover what has happened since. As to the actual powers given, I take it from what has been said that there is no objection to a Minister having received a patent doing what he is allowed to do under sub-sections (a), (b) and (g). (g), I suppose, being an omnibus sort of clause, will meet with whatever objection there is to any of the details. There is objection to (c) and (d), particularly to the words "without valuable consideration." There is objection to the Minister working a patent commercially, working a patent being considered highly speculative.

Mr. Flinn

May I call attention to (a)? (a) might involve very heavy speculative expenditure.

Mr. McGilligan

Certainly. The only paragraphs to which objection was taken were paragraphs (c) and (d) and (e) and (f) in a general way. (a) could involve a good amount in the way of expenditure. (c) and (d) contain these peculiar words, "may lease or sell or grant a licence without valuable consideration." Strike out those words and say "with valuable consideration." Remember the word "valuable" will have a very limited significance. In that phrase five shillings may mean "valuable consideration," and the difference to the State between the Minister selling for 5/- or for nothing does not mean anything.

Mr. Lemass

Does it not mean that some return would have to be given in the Finance Accounts?

Mr. McGilligan

I could hardly see the thing being sold without some nominal consideration being demanded. I think if the Minister is going to be given power to develop and perfect an invention you have gone a long way. Actually stopping him then from selling it or leasing it, or granting a licence is not going to be very much of a restriction upon him. Whatever restriction he has may easily turn out to be a very unsound thing. For instance, one may grant a licence to get a thing worked in order to see whether it was going to be a commercial success, and to entice somebody to take up some invention where there might be some industrial benefit gained from the application of it. We might have to inveigle someone into using it by saying: "You are skilled in this particular thing. Look after the accidentals of this particular invention. Get this used in some way and let us see if it is useful as well as having some idea in it." It may be necessary to grant a licence without valuable consideration. In the selling of a lease without valuable consideration one may look for restrictions. I am merely taking the words "without valuable consideration."

As to the powers that are asked generally, I want to preface my remarks by saying that the whole thing is very exceptional. It looks forward to a procedure that will occur very rarely. With that as a preamble, supposing the Minister is, in exceptional cases, given the power to intervene on behalf of the State and take over the benefit of some invention, it is not much good his being given the power of taking it over unless he is allowed to perfect it and develop it. And the perfecting of it may drag in sub-section (f), the forming of a company to do it. The Civil Service, as ordinarily constituted, could not do it. The company is not going to be formed of the heads of a department of the Civil Service. It will be necessary to get the thing properly developed, to see whether there is a useful application of whatever the idea is. Giving power in that way I think drags in sub-section (f) and I personally do not see any objection to (f). (b) is necessary also. It is simply allowing the Minister to take an assignment of any patent or of a share or interest in any patent, theretofore or thereafter obtained for such invention. To use it commercially there may have to be certain experimental workings which might be done under (a)—developing and perfecting it—but it might just cross the borderline, where it would have to be adjusted to ordinary conditions. Suppose someone brings an invention for perpetual motion. In its application to transport one would have to see that it worked under ordinary conditions on the roads or rails to see whether there was a useful application of it.

Again, I do not see that there can be much objection to sub-section (e), remembering all the while that if the whole of the Contingency Fund was going to be raided for the purposes referred to in sub-section (e) it is only a sum of £20,000 in all and there are nearly always claims on that Fund in any year to the extent of about £10,000 for ordinary purposes. So that there is a limitation to the extent of £10,000. Whatever additional sum the Minister for Finance may require he will get it by coming to the House and get it under a special heading or a special vote. So that the Minister is limited practically to a sum of £10,000, save what sums he may get by an extra vote or a special sub-heading. (c) and (d) would seem to me to be the phrases about which there may be some question of amendment. I am helpless myself to suggest an amendment. I do not know what the ideas are that people want to bring in, and I would like to ask the House to deal with it somewhat on the lines on which Deputy Flinn spoke. It is no secret as it has been talked of here, and it is going to be pursued, I am sure, here.

I am sure I am going to be asked about it from time to time until it proves either a success or failure. There ought to be an end to it one way or another quite soon. After that this matter will fall to be investigated and questions will be asked about what I have done in the way of so-called irregular procedure. The matter will be investigated by the Comptroller and Auditor-General and the Committee of Public Accounts. In any report that the Committee may draw up about this matter it will be, of course, for them to suggest the limitations that in their opinion ought to be put upon a Minister in the matter of expenditure in particular circumstances. Of course certain explanations will have to be made to the Committee and then it will be possible for them to suggest what restrictions should be put upon a Minister. I cannot make any definite suggestion at the moment. I would hesitate to go back to the State Lands Act and, as in the case of a lease, for example, lay all the terms and conditions before the House. As another matter has been referred to, the question of legislation that may be brought on later, I would like to make one point. Let one imagine the property which would be affected by Article 11 of the Constitution. Let us say that some mineral development is on foot—the discovery of something in the nature of important mineral deposits in a certain area and under Government ownership. Is it really considered a desirable thing that one person should come forward with an offer, that there should be a certain amount of haggling with the Department, that the Department have, say, a good offer, the best that could be got in the circumstances, that the whole thing should then come before the House and that the House, on a discussion, could refuse to pass it?

The position might easily be that a certain man, knowing a good thing was coming, would not make an offer, but would allow some other person to go ahead. The matter would come before the House and there would be a process of lobbying on the part of this man who is biding his time. He could hint broadly that he was offering something better to the State than what was about to come under the consideration of the House. Then the man who originally developed the idea of making the discovery good, and who would have reached a certain point, whose plans would be prepared and who probably would have a tentative lease ready for the consideration of the House, would be turned down because the man waiting in the background was ready to go one better. I do not think that we will get much development that way, or that there will be much in the way of a scurry over the development of good business propositions if the full details have to be placed on the Tables of both Houses for thirty sitting days and are to be subject to various motions and criticisms and a whole course of cross-examination of the Minister in both Houses as to what was expected to come from the schemes about to be developed. Obviously there would be an attempt to get at the applicant's plans and ideas.

I do not think that the procedure under the State Lands Act would work at all. State property, which is controlled by Article 11 of the Constitution, is administered in accordance with legislation passed by the Oireachtas. It was really because I was feeling my way towards suitable legislation that I was anxious this particular measure would be drafted in the widest possible way. If Deputies give me suggestions I will certainly endeavour to get the draftsman to deal with those suggestions and see if they could not be embodied. That would be preferable to falling back upon the State Lands Act simply because people might feel themselves incapable of approaching this very difficult and technical matter from the point of view of drafting suitable proposals. We should try to get away from the State Lands Act. That Act is all right where it is a question of houses or fixed buildings—something that is to be sold and where the economic value is readily ascertained. The outlook is quite different where it is a matter of property that is going to be developed. I do not think the State Lands Act will aid us very much there.

When we get back to Section 5, I may say there is the danger of its being applied in exceptional cases. It does not bind anybody except myself, but it may be used by me to do all sorts of things. What is the best the House could ask for? There could be a secret session, if the House felt that every Deputy could be relied on not to disclose one single item of what had passed at that secret session. At the secret meeting the House might ask for the details of an invention, and then, after these details would be put before them, you would get over one hundred people fighting, not alone about the details, but as to whether or not it would be a good bargain and whether a little more could not be got. One Deputy might propose that a little more should be sought than what another Deputy would be agreeable to accept. On the other hand, the Minister might give away, without receiving valuable consideration, an invention which he had previously purchased out of moneys passed by the Dáil. You may say that he can prevent the unauthorised use of powers, but there is the possibility that the Minister might come gaily along and say: "I have done this thing, and I am going to walk the plank for it; but I have done it, and you people will have to put up with it." There must be some sense of responsibility.

A Minister takes his political life in his hands when he engages in any transaction such as this, and if he is not successful he almost inevitably damns himself. If he hands over anything that is valuable and that has been bought with State moneys, and does not get good value in return, he almost inevitably damns himself. I admit it is a meagre sort of explanation to offer to the House for the granting of these large powers. I may say I would not like to see Section 5 lasting for all time. There is only one invention under consideration at the moment, and a certain amount of money has been passed towards it. I do not say that there will be any more money asked for the development of this invention. If it is a question of working it, then possibly there would be some other application made to the House.

If this invention is to be a tremendously successful one it might be possible to go on with the working of it without coming to the House. Again, there arises the question of money. Can the Minister spend out of the Contingency Fund? I think the matter might very well be left where it is. I could consider any suggestions put forward between this and the Report Stage in the sense that I would get the draftsman carefully to consider them. I think it would be really wise to leave Section 5 as it stands. The Committee of Public Accounts could have its attention specially directed to the matter, and the House could afterwards direct its own attention to the matter when it had so far advanced that there might be more information given about it. Then there could be an amendment and a tightening-up so that the Minister could not operate to the detriment of the State, as, undoubtedly, at the moment, he would have power to do.

Mr. Good

I do not think that the Minister need be afraid that the House will be too inquisitive. I think what he has in mind is, if one is to judge by his remarks, that the members of the House are going to inquire into all details before they approve of expenditure. Now, let us take the case that was before the House last week. The Minister asked for approval of a sum of £5,000 for the development of a particular patent. I do not think that the Minister can claim that the House was unreasonable in the details that it asked for in connection with that £5,000. I do not think that the Minister can claim that the members of the House were on that occasion in any way unreasonable. I think that that is a precedent that ought to assure the Minister that the House in the future would possibly be guided very much by the action taken in the past. I feel, with Deputies on the other side, that there is a responsibility cast on the House of approving of expenditure before that expenditure is embarked upon. In every department of State this House is going to approve of expenditure before that expenditure is embarked upon.

Here we have the Minister coming along and saying in this Bill: "Here I am going to ask you to give me unlimited powers." He has circumscribed that by saying that it is confined to the amount available in the Contingency Fund at the time. That will rarely exceed £10,000. When one gets into the matter of patents, progress may be slow and expenditure slow. In the total, however, it may amount to a very large sum, and, as Deputy Flinn has said to-day, the number of successful patents is exceedingly few. If I might add to that, it would be, that the amount of money sunk in patents that have been reproductive has been exceedingly small in proportion to the gross amount of money spent on patents. More money has been lost in patents in this country and in most other countries than in almost any other enterprise in that way. That being so, I would most certainly say that some limitation should be placed on the Minister. Now, the Minister has suggested that the matter might be allowed to stand as it is in the Bill, and then let the Comptroller and Auditor-General make suggestions as to how limitations might be provided. I do not know that that is quite a fair duty to cast on the Comptroller and Auditor-General. I am sure if we cast that duty on the Comptroller and Auditor-General that he and the Committee that supervise public expenditure will do all in their power to make suggestions. But I do not know that they are at all the best people to make suggestions in connection with a matter of this kind. I would press on the Minister, in view of what has been expressed from different sides of the House and in view of the fact that we are legislating for a great many years, to reconsider this matter. The Minister says that it is not advisable that legislation of this character should exist in this particular form for a number of years. I do not know what he has in mind with regard to the number of years for which legislation should exist, but if there are limitations to be placed on these, I think now is the time to place them and not have the probability of cases occurring and then having to deal with the matter subsequently. I would much prefer to deal with the matter in the first instance and if the Minister agrees to the limited nature of the limitations proposed by this House, I do not think that he will have any reason to complain of the action of the House.

Mr. Lemass

I am not as concerned as Deputy Good with the power of the Minister to spend money under this section. As the Minister himself has pointed out, his power to indulge in expenditure without the prior sanction of the Dáil is exceedingly limited. If he wants to exceed the limits of the Contingency Fund, he has to come to the Dáil, and the Dáil can, in its wisdom, give or refuse to give the power to him. The fault I find in the section is not with the amount of money which might be expended on a patent and on its development, but with the ultimate fate of the patent after it has been developed. I might discover the secret of perpetual motion and come along to the Minister and make an assignment of that patent to him. The Minister could develop and perfect it. He might, in that case, go to the Contingency Fund for the money for that purpose, or he might come to the Dáil and ask them for that £5,000— he might say that he wanted £5,000. He gets the £5,000 to develop that patent. Later on, he comes back to the Dáil and gets a further sum in order to work that patent effectively. There is nothing in this section to prevent him, after he has received from the Dáil a fairly substantial amount of money for the purchase and perfection of the invention and for the working of it, to give the entire property thus created away to some private firm or individual, for valuable consideration, or without valuable consideration. It does not matter whether he gets valuable consideration or not; that is not the point. The point is that the Dáil should know before the property that was created with its money is finally disposed of, and it should have an opportunity of expressing its opinion on the disposal of that property.

The Minister brought forward objections to the procedure laid down in the State Lands Act, which are worthy of consideration. The objections he made to that procedure in respect of this Bill are equally forcible with respect to the Bill itself. We had a discussion here a couple of weeks ago concerning a matter of that kind. If that procedure cannot be followed in this case, cannot we get some other procedure which would ensure that by the formality of laying the documents on the Table of the House, the Dáil would become informed that the Minister proposed to dispose of property designed or created by him with the money given to him by the House? The House should have an opportunity, by resolution, of stopping that transaction if the House or the two Houses think that the Minister is acting unwisely. I do not think it is too much to ask the Minister to agree to amend the section in that respect. We have no objection to his developing any patent assigned to him, and we have no objection to his going to the Contingency Fund in special circumstances, and using it for that purpose, though we think it is better that he should come to the Dáil in the first instance. We have no objection to his exercising any of the powers that this section gives, but we do think that if the Minister proposes to exercise these powers for the purpose of taking out of the hands of the State the property that that State has created by the moneys given to the Minister, then we think the House should be consulted and asked to approve of the transaction. The procedure should be somewhat similar to that laid down in the Weights and Measures Bill which we discussed here a few sessions ago. Certain details should be laid upon the Table of the House and the matter would become automatically operative at the end of twelve sittings of the House or twenty-one ordinary days, unless, in the meantime, both Houses by resolution instruct the Minister not to proceed with the transaction. There are very few Deputies in the Dáil who normally take any interest in the papers that are laid upon the Table of the House. Only those who have been examining the matter and know the specific objections to the transactions would go to the trouble of putting down a resolution on the matter. In nine out of ten cases, the proposals would go through without discussion or reference in the Dáil at all, but in the tenth case it would be desirable that the Dáil should have power to say to the Minister, "No; you must not proceed with this transaction; you are giving away State property which should not be given away at that price"; or say to him, "Property is being given away by you that should be retained by the State and not sold for any consideration."

There are many reasons which might induce the Dáil to pass such a resolution in this case. But in the ordinary case there should be no interference, just as there is no interference in 99 cases out of 100 when property is leased or granted under the State Lands Act of 1924. The difficulty of drafting such an amendment has prevented us from tabling it. If the Minister would take that suggestion and mention it to the official draftsman and see if the official draftsman can embody it in Parliamentary terms and have it put down on the Report Stage, we would be satisfied. Then we would be enabled to discuss it, and help to do something useful even if the Minister himself decides to vote against it.

Mr. McGilligan

I would like to bring this a point further. As regards the point raised by Deputy Good, the House was not unreasonable the other day in its demand on me. I was received in a way which I did not think was possible. I did not contemplate getting a sum of £5,000 with so little fuss and questioning. Deputy Good then said that the House has a right and a duty to approve of expenditure before it is embarked on. It has, but it also realises that there may be certain expenditure which has to be embarked upon owing to some emergency and there is a recognised practice that whatever moneys are taken out of the Contingency Fund are voted later to be repaid to that Fund The House has a settled form of finance by which it recognises that there are occasions on which money has to be spent for matters for which there is not a special sub-head. That may happen, for instance, during the Recess when the Dáil is not sitting and when it is not possible to consult it. That remark would also apply to Deputy Lemass in regard to the State Lands Act.

Mr. Lemass

That is not the procedure in the case of the State Lands Act. A provisional lease is granted, and the person to whom the lease is granted can enjoy the privileges.

Mr. McGilligan

That is the point that was brought up in discussion here recently. The people who applied for the lease were warned that if they did anything under that provisional lease they did it at their own risk. In that case it was pointed out that if they were to exercise rights which were afterwards to be given to them some people had to be evicted. A provisional lease gives no rights. The procedure under the State Lands Act will have to be further examined to get clear what is involved. Even though a lease is passed by this House there is no contract made. There is the peculiarity that under the State Lands Act the House cannot change a lease and can only apparently refuse to pass it. Deputy Lemass has now confined this to the two little clauses to which he objects. I am taking it that he has no objection to (a), (b), (e), (f) and (g), and that (c) and (d) are the two points to which he objects, the disposal of State property by way either of licence, lease or sale. If I take the one thing that happened as being typical, I would require power to do or join in doing on behalf of the State certain things, namely, to develop and perfect an invention and to do anything necessary for that purpose, and, secondly, to take an assignment of any patent or of a share or interest in any patent obtained for such invention.

I may also do what is contained in (f), namely, form or promote an incorporated company or a non-incorporated association of persons to develop and perfect such invention or to work commercially any such patent. Sub-section (e) goes a step beyond that, and it says that the Minister should get power to work any such patent commercially and that that can be done in either of two ways, by either sale or lease or the granting of a licence. Deputy Lemass referred to a perpetual motion invention. That has an application to road transport. In that case the invention would have to be taken out and fully protected. The invention, if full protection is required, has publication, so that there would be knowledge about the whole thing. There are patents of such a type that it would pay big companies to go to any expense by way of legal action to break them and take away the monopoly grant or to use the invention themselves. It may be worth their while to come in and buy them in order to suppress such patents. Suppose this had an application to road transport it would pay petrol companies to go to enormous expense in order to have the patent broken or to purchase the idea in order to suppress it. It might well be that the State might find it necessary to get on their side one of the big petrol or motor combines in order to have a corporation supporting it that had the usefulness of the article demonstrated to it. It would then have the resources of that corporation to fight rival companies. I do not think that the Minister should be prohibited from "selling, leasing, or working in conjunction..."

Mr. Lemass

We do not propose to prohibit the Minister but propose that he should get the prior consent of the Dáil.

Mr. McGilligan

Very well. The Minister would have to come to the Dáil. Let us assume that the invention is being developed, and that you have got to a certain point. Then the Minister comes here and says that this invention is to be applied in a particular way, and as it is useful to certain groups he wants to enlist one of them on his side. Therefore he says that he wants power to sell. The Minister could make a statement like that, but is that all that is required? We would then have got to a point further than that we were at previously, and the consideration shown to the matter now, realising that it is delicate matter, would not then apply. The House would then be entitled to become more inquisitive, and would say to the Minister: "What are you proposing to get and what is this being devoted to?" Perhaps a committee would be set up to inquire and report, and in that event the more people who got the secret revealed the more danger there would be of information leaking out. I do not say that it would be given away deliberately. However, if Deputy Lemass says that (c) and (d) are to be objected to I think that (e) will have to be included.

Mr. Flinn

I think that (e) is most dangerous.

Mr. McGilligan

"Work any such patent commercially." I will see if any limitation can be put on what is proposed to be included in Section 5. The idea is that there should be some reference to the Dáil before there is a disposal of property.

Mr. Flinn

Before there is any contingent liability. Where the Minister is dealing with the matter I have no fear. I know that the feeling will be that the Minister is very much on his trial and that he will be very careful, but it is the contingent liability in the development of these things which is really serious. We might find that after this contingent liability was taken on they did not come in under expenses incurred by the Minister.

Mr. McGilligan

Take this particular thing which is vaguely under discussion. I have got the right to purchase. I have taken certain rights in regard to an assignment of a patent or of a share of it. Remember that one ought to look beyond the documents and to the point where the company is being formed to work the thing commercially. I had to see that my rights are protected right along the line. I had not merely rights in the invention but rights in the patent and in any company formed to work the patent. I am afraid that there will always be over-lapping, especially if there is insistence on a reference to the Dáil before anything is done. I will, however, look into the points raised under (c), (d) and (e), and bring the matter up again on the Report Stage.

Mr. Flinn

We are agreed to that.

Question—"That Section 5 stand part of the Bill"—put and agreed to.

Mr. Flinn

Sub-section (2) is, I take it, meant to carry out what was the contention of the controller in the recent case which was tried in Court?

Mr. McGilligan

That is the provision in regard to residence and having a place of business?

Mr. Flinn

Yes.

Mr. McGilligan

It is intended to cover that point and another point raised by certain patent agents with regard to Section 63 of the Principal Act. A third point was raised in that discussion, but I have not been able to go into it yet. I shall examine it and it will come up on the Report Stage.

Sections 6, 7 and 8 ordered to stand part of the Bill.

An Ceann Comhairle

The next amendment is to Section 9.

Mr. McGilligan

I will have to leave that amendment over to Report Stage; it is a matter that I have not considered.

Sections 9 and 10 ordered to stand part of the Bill.

An Leas-Cheann Comhairle

took the Chair.

SECTION 11.

(1) The copyright in legal tender notes issued by the Currency Commission under the Currency Act, 1927 (No. 32 of 1927), or any Act amending or extending that Act shall be perpetual and shall belong and, in the case of legal tender notes so issued before the passing of this Act, shall be deemed always to have belonged to the Currency Commission.

(2) The copyright in consolidated bank notes issued by the Currency Commission under the Currency Act, 1927 (No. 32 of 1927), or any Act amending or extending that Act shall be perpetual and shall belong and, in the case of consolidated bank notes so issued before the passing of this Act, shall be deemed always to have belonged to the Currency Commission.

Mr. McGilligan

I move:—

To add at the end of the section a new sub-section as follows:—

"(3) Notwithstanding anything contained in sub-section (1) of Section 155 of the Principal Act, the reproduction in any published literary or artistic work of the whole or any part of a legal tender note or a consolidated bank note issued by the Currency Commission under the Currency Act, 1927, or any Act amending or extending that Act shall constitute an infringement of the copyright in such note."

We have set out to give copyright in the legal tender notes issued by the Currency Commission. We want, further, to guard that under the right of free criticism which is given under Section 155 (1), that right of free criticism will not bring in, in the course of such criticism, the reproduction of notes. We simply say that criticism can go on, but nevertheless the reproduction in any published literary or artistic work of the whole or any part of a legal tender note or of a consolidated bank note, issued by the Currency Commission under the Currency Act, 1927, or any Act amending or extending that Act, shall constitute an infringement of the copyright of such note. It was thought, although we set out to give a copyright in the notes, that it might be avoided by publishing an article critical of the notes, issuing reproductions of the notes, and then scattering them, in pamphlet form, over the country. We want to guard against that.

Amendment put and agreed to.

Section, as amended, ordered to stand part of the Bill.

Section 12 and the Title ordered to stand part of the Bill.

The Dáil went out of Committee.

Bill reported with amendments.

Report Stage fixed for Wednesday, 20th March.