Dáil Éireann debate -
Tuesday, 5 Nov 1991

Vol. 412 No. 1

Patents Bill, 1991: Second Stage.

Minister of State at the Department of Industry and Commerce (Mr. Leyden)

I move: "That the Bill be now read a Second Time."

Patent law has been revised only once since the foundation of the State. That revision was in 1964 and the Patents Act of the same year is still the current law on the subject. It is out of date in many respects and is particularly not conducive to expeditious examination of patent applications. Accordingly, one objective of the present Bill, which will replace the existing Patents Act, is to bring the law in certain key aspects into line with that of other European countries, particularly our EC partners, and to establish examination procedures for patent applications which are less officially time-consuming.

Another main objective of the Bill is to enable the State to ratify the European Patent Convention and the Patent Co-operation Treaty. The most significant of these two international agreements is the European Patent Convention which was signed by Ireland and 14 other European countries in Munich in September 1973 and which has been ratified by all our EC partners, except Portugal, and by Sweden, Switzerland, Austria and Liechtenstein. Many representations have been made in recent years by certain industrial sectors, by the Confederation of Irish Industry and by Deputies in this House, pressing for ratification of that Convention. After ratification, it will be possible to designate Ireland as a country in which patent protection for an invention is sought in addition to any or all of the other states which have ratified the Convention; and for that purpose the applicant only requires to make one application to the European Patent Office (EPO) in Munich whereas prior to the Convention individual applications had to be filed with the national patent office of each state in which patent protection was required. The European patent when granted by the EPO will have the same status in each of the designated states as if it were a national patent granted by the respective national patent offices; the effect will be the same in each state; and revocation of the patent by the national authorities will be possible only on the grounds specified in the convention. Finally, the duration of the European patent — a 20 year term — will be the same in each state.

In the interests, therefore, of effective protection of innovations the convention holds many attractions for applicants and I am pleased to be taking the opportunity of including in the present Bill, provisions which enable the fulfilment of the commitment to ratify signalled by Ireland's signature of this Convention in 1973. I have been persuaded, too, that ratification is regarded by research oriented industry as an important national incentive in the encouragement of industrial investment and innovation. Most of our Community partners ratified more than 12 years ago.

I mentioned the Patent Co-operation Treaty earlier. This Treaty was concluded in Washington in 1970. It has been ratified by all the Community member states — with the exception, again, of Ireland and Portugal. It has also been ratified by the EFTA countries, the USA, Canada, Australia and various other countries. The idea behind the treaty is to streamline patent application filing and novelty search procedures for applicants wishing to obtain patent protection in a wide number of countries. Applicants may make one central application — generally to their local patent office — designating the countries in which patent protection is required and the novelty search is carried out by an International Search Authority whose report of the search is then furnished to the patent office of each country in which protection is sought. Final examination and grant is performed by the various national offices. This system economises considerably on the amount of work an applicant would otherwise have to do in order to satisfy the multiplicity of individual national requirements.

Chapter III of Part II deals with the making of applications for patents. These provisions are broadly similar to the present law, with a few exceptions. The possibility to file what is called a provisional specification with an application followed later by a complete specification, is being abandoned. Under the Bill a specification describing the invention, and which includes claims defining the matter sought to be protected, will be required with an application. Nevertheless, it will be possible to have a filing date accorded to an application which is not formally in order provided the minimum requirements of section 23 are complied with and the deficiency is corrected later. Furthermore, it will be possible for an applicant to file an application and claim the priority of an earlier application he has filed in the office for the same invention, whereas at present only the priority of an earlier filing abroad can be claimed. These changes are more in line with modern practice elsewhere and are generally in the interest of applicants.

Chapter IV of Part II deals with the procedures for search and examination of applications. The provisions here are different in a number of respects from the present law. For an applicant who obtains a patent for the same invention in, say, the European Patent Office, Germany or the UK, it will still be possible to submit the specification of that patent as evidence of novelty and inventive step in respect of the Irish application.

A further objective of the Bill is the creation of a special system of patent protection for smaller type inventions. This is the short-term patent with which Part III of the Bill deals. I shall say more about this subject later.

When the Bill was being prepared I took the opportunity to review the procedures for examination and grant of patents under the present law. I was concerned about this matter in view of the large and growing backlog of applications currently awaiting examination. There was no prospect of eliminating this backlog without changing examination procedures and I am glad to say that the Bill contains new provisions in this respect which will be both adequate for the purpose and speed up examination considerably. Because of the existing large backlog, I have taken the opportunity, in the transitional provisions, of arranging that the new procedures will apply also in the case of all applications on hand when the Bill becomes law; otherwise the existing backlog, if processed under the present law, would take years to dispose of.

For the information of the House I will now outline the principal features of the Bill, indicating the differences from the present law and expanding some more on certain of the objectives to which I earlier referred.

Part I is a short, general, part listing definitions of terms used in the Bill; clarifying certain matters relating to orders or rules made under the Bill and providing for repeal of the present law.

Chapter I of Part II confirms the continuation in being of the Patents Office and the Controller of Patents, Designs and Trade Marks while Chapter II lays down the criteria that an invention must satisfy to be patentable, namely, novelty, inventive step and industrial applicability, and defines these criteria. It provides that patents cannot be obtained for certain subject matters, such as scientific theories, computer programmes, methods of medical or veterinary treatment, inventions whose exploitation would be contrary or public order or morality and plant or animal varieties. These provisions about what is patentable are quite different from and more specific than our present law which basically provides for the grant of a patent for any new or useful art, process, machine, manufacture or composition of matter. The provisions proposed bring our law into line with that of other European countries and are based on the corresponding provision of the European Patent Convention.

I should say at this point that the Convention has acted as a harmonisation instrument generally in that those European countries which have ratified it have also tended to adopt the legal concepts of the Convention in their domestic law. As I have already pointed out, Chapter III of Part II deals with the making of applications for patents. These provisions are broadly similar to the present law, with a few exceptions.

Chapter IV of Part II deals with the procedures for search and examination of applications. The provisions here are different in a number of respects from the present law. For an applicant who obtains a patent for the same invention in, say, the European Patent Office, Germany or the UK, it will still be possible to submit the specification of that patent as evidence of novelty and inventive step in respect of the Irish application. However, where no corresponding outside patent application has been made, a search report on the invention will have to be established after the filing of the Irish application. The search report will be established under the authority of the controller by arrangement with an outside office which is capable of doing an adequate novelty search. When the foreign granted patent or search report, as the case may be, becomes available it will be laid open to public inspection by the controller in conjunction with the application and the applicant will be requested to submit any amendments to the specification of his application in the light of these documents. Any amendments will also be open to public inspection. The office will check whether the subject matter of the application is patentable.

These procedures replace the elaborate and time consuming provisions governing examination which the present law imposes and which have led to the enormous backlog in examination of applications to which I referred earlier. I am satisfied that the new procedures, which are similar to those in operation in some European countries, will work well in practice and make for a much more efficient and streamlined system.

The public, too, will have the possibility of inspecting applications at all stages. In addition, there are provisions in the public interest enabling applications to be made to the controller or the court for revocation of a patent on any of a range of grounds specified in section 58; the grounds include non-patentability of the invention and non-entitlement of the proprietor to a patent therefor. Thus, the system provides for a reasonable balance between the interests of the patent holder and the rights of the public.

Under the Bill the term of a patent will be 20 years; it is currently 16 years. The 20 year term is, again, the norm applying in Europe and is also the term of a European patent under the Convention. The research and development costs involved in developing and perfecting an invention can be very substantial. Also, in the case of certain inventions such as new pharmaceuticals, official authorisation is required before the new substances can be put on the market; these authorisations can take a long number of years to materialise, resulting in a significant erosion of the term of the patent. For these reasons the longer patent term is justified.

The provisions in Chapter VII of Part II dealing with infringement of a patent follow generally the lines of the present law. However, the Bill also provides, in accordance with the principles of the European Patent Convention, that proceedings may be instituted after grant for acts of infringement committed before the patent was granted. This is necessary to deter third parties from committing infringements in the interval between the date of publication of a patent application and the grant of the patent.

Part III of the Bill makes provision for the grant of short-term patents. The provisions here are completely new to Irish law and were devised in the interests of the smaller inventor who may find the task of obtaining a normal patent too costly and time consuming and, therefore, a disincentive to protecting his invention. Therefore, I have made provision which will ensure that short-term patents will be capable of being obtained without undue official obstacles and I intend to provide for lower official fees for these. In doing this I am conscious of the fact that small innovators face more drawbacks, cost-wise and otherwise, than larger companies in the innovation process and I hope the provisions which I have made will prove encouraging to them and an incentive to commercialise useful inventions.

The period of protection will be ten years. This will particularly suit the less technologically complicated inventions which by their nature may not have very long life cycles but which nevertheless have an important place in the whole process of industrial innovation and in the encouragement of new project startups. I should make it clear that short term patents will not be confined to small inventions and, indeed, it will be possible for an applicant who has applied for a short-term patent to make a simultaneous application for a full patent and later abandon whichever application he does not wish to pursue.

The final Part of the Bill, Part XII, contains those provisions which are necessary to enable Ireland to ratify the European Patent Convention and the Patent Co-operation Treaty. In the case of the European Patent Convention, what is basically required is that applications for European patents designating the State be treated as having the same legal status as national applications made to the Irish Patents Office; and that European patents designating the State, granted by the European Patent Office, be treated as if they were patents granted under our own national law. Part XII of the Bill fulfils these requirements, making also a number of consequential and other miscellaneous provisions. An important provision is that if the language of the specification of the granted European patent is not English, French and German being the two other permissible languages of the European Patent Office, a translation in English of that specification must be filed with the Irish Patents Office and published here in order for that patent to have effect in Ireland.

As regards the Patent Co-operation Treaty, in order to enable Ireland to ratify this Treaty, the Bill provides that Ireland may be designated in international patent applications filed under the Treaty. The Bill also specifies in section 127 that, as permitted by the Treaty, an international application designating the State shall be deemed to be an application for a European patent designating the State. Availing of this possibility has certain desirable advantages: it means that functions concerning international applications which would otherwise have to be performed by the Irish Patents Office will, instead, be performed by the European Patent Office, and the result at the end of the day will be the grant of a European patent designating Ireland having the same effects which I previously mentioned in relation to European patents.

In conclusion, I should like to mention another patent convention, namely the Community Patent Convention, which was signed by Ireland and the other Community member states in 1975. It will not be possible to ratify that Convention on the basis of the present Bill because an amendment of the Constitution is required before ratification of this Convention can take place. This matter will be kept under review in the context of other possible amendments of the Constitution which may arise in the period ahead.

I recommend the principle of this Bill for approval by the House.

Mr. Barry

We are accepting this Bill. In fact, I wrote to the Minister early in the year to say we would facilitate its passage through the Oireachtas because it is important that it should be passed as quickly as possible. However, I have some complaints about the Minister's handling of the Bill.

This Bill was first published on 15 July, yet the explanatory memorandum in relation to this very important legislation was only circulated on 22 October — over three months later. This is a difficult technical Bill which is not easily understood by the lay person and to have the explanatory memorandum circulated 24 hours before the Minister sought to have the Bill taken in the Dáil is, at the very least, unsatisfactory. I do not address my remarks particularly to the Minister of State, Deputy Leyden, but rather to his senior Minister, Deputy O'Malley, who is head of a party who profess reform of the Oireachtas as one of their priorities.

Mr. Leyden

On a point of order, the explanatory memorandum was circulated with the Bill.

Mr. Barry

No.

Mr. Leyden

I understand it was. Subject to correction, I understand it was circulated two and a half weeks ago.

Mr. Barry

No, it was not, because when I tried to get it in the Bills Office — after I heard it was being ordered — I was told they were waiting for them to come over at the time and, in fact, I got them later the same day on 22 October.

Mr. Leyden

The explanatory memorandum was not available until that date.

Mr. Barry

Perhaps individuals got them but certainly they were not circulated with the Bill at the time. This is very bad coming from the Leader of a party who profess Dáil reform to be a high priority in their Programme for Government. Between Deputy Leyden's party and Deputy O'Malley's party they promised reform of the Dáil before the end of 1989. In the revised Programme for Government we see now that the partners in Government present proposals to the Committee on Procedure and Privileges in 1991 for implementation during 1992. I hope the promise in the latest Programme for Government will have a better chance of being kept than the promise in the 1989 programme.

We welcome this Bill on a number of counts. We can all subscribe to the objectives set out in the explanatory memorandum which state:

(iii) to establish procedures in respect of examination of patent applications which are more expeditious than those in operation under the present law;

(iv) to provide for the protection of smaller type inventions by introducing provisions for the grant of short term patents;

(v) to establish that the Comptroller is the sole authority in relation to all matters concerning the grant of patents.

Those objectives are vital for the modernisation of the Irish patent system. This modernisation and reform is long overdue. Indeed, it is regrettable that the Bill is being introduced against a background of unresolved problems of staffing and expertise that exist at present in the Patents Office.

There are a number of defects in the Bill and I am sure the House will agree with me that they must be rectified. This can be achieved by the Minister accepting amendments for this Bill as presented. It is a very suitable Bill for referral to a committee of this House rather than being dealt with by the House in full. This is the third Bill with which I have been associated — there is another Bill also — that would be extremely suitable for debate in a much smaller committee of the House if we are to modernise Parliament. I understand the Government's difficulties with that because of voting procedures which would confine their members almost on a full-time basis to a committee meeting. I am sure that between the Committee on Procedure and Privileges and the Whips we could arrive at some formula which would allow a Bill to be debated among a smaller number of more interested Deputies than in the full House committee.

The Competition Bill, the Environmental Protection Agency Bill as well as this Bill would be suitable for debate in committee. If the Minister cares to take up that suggestion, on behalf of my party I would try to ensure there was some sort of voting system that would not have the effect of embarrassing the Government at any particular time, but of course, I cannot speak for other parties. In these technical Bills where we all have to get advice from people who are more qualified than we are on Bills it is much better if we sit around a table, discuss matters and perhaps improve the Bill rather than making it a political football. I would be very keen that that should happen. Having waited two years for the Competition Bill to be produced it was then guillotined through this House with totally inadequate discussion on Committee Stage and was rushed through in a very short period. I hope that will not happen on this occasion.

There are a number of very serious considerations which the Minister must take on board. The main objective of the Bill is to simplify the procedures involved in full patent approval and to extend the term of the patent from the present 16 years to 20 years. This will bring us into line with European practice. While the latter extension may enhance this country's prospect of attracting health care companies to set up here, it will also have an impact on indigenous production of generic drugs. As this is a hobby horse of mine, can somebody please interpret for me what the word "indigenous" means as regards industry, because I cannot fix in my mind a picture of an indigenous Irish company in the European context. In that regard I always give the example of P.J. Carroll, which is to most of us an indigenous Irish company but, as far as I know, is owned 100 per cent by interests outside this country. Is that a company we want to promote or it is a multinational company which is owned by Rothmans in America? I say that in the hope that somebody will come to my rescue at some time.

The extension of the patents will be a help towards attracting foreign companies in the chemical sector to this country. The Minister must do that but he should also avoid damage to home-based industries who provide sustainable jobs and opportunities for economic expansion.

The Patents Office have experienced a rapid increase in the volume of inventions submitted for examination over the last number of years, but at the same time there has been a decrease in the number of technical staff. The number of new patent applications last year was more than 4,000 while staff numbers dwindled to 11. In the 63rd annual report of the Controller of Patents, Designs and Trademarks the stark reality of this understaffing is underlined. The report contains the fact that the backlog of applications up to the year ended 31 December last has grown to almost 20,000. In the report the director says that in various previous reports he referred to his submission some years ago containing proposals as to the organisational structure of the office, that no action has been taken in the year under review in relation to those proposals and that staff numbers in the office had fallen progressively since the commencement of the public service staffing embargo, from 96 to 77. That relates to the period between 1971 and now, so the number of staff is fewer now than it was in 1971. In the meantime work has increased considerably in terms of volume and complexity. One does not have to have technical knowledge to understand that the volume and complexity of the work would have increased and that there would be more legal implications in relation to decisions made.

In relation to applications, appendix 1 of the report shows growth since 1970. It is inevitable that while this situation prevails the backlog will remain and revenue will be foregone. Table J, to which the director refers, shows that the number of patents has increased by about 1,700 to 5,000 and that the number of trademarks has increased from slightly over 2,000 to almost 8,000 in the last 20 year period. At the same time, even though many of these have become much more difficult to assess, the number of staff supposed to make these decisions has decreased.

Recent newspaper reports suggested that the office has lost expertise as well as staff and that the Irish Patents Office will find itself with a gap in a range of scientific specialities. There is no point in passing a Patents Bill and pretending we are doing a good day's work if we do not provide the necessary staff to do the job properly. The backlog in patents not processed also means a loss of revenue which has been reckoned by some people to be somewhere in the region of £3 million and by others to be over £8 million. If those figures are correct the embargo on staff recruitment seems to have been a very shortsighted policy. This situation must be addressed as a matter of urgency. Even though the Bill claims to do so, I do not believe it will alleviate the situation.

The trend within the European Community has been towards the simplification and the standardisation of procedures with regard to the granting of patents, and towards harmonising the so-called intellectual property laws in order to make the registration of trademarks more user friendly. That is an objective with which we agree. The Bill does not satisfy this objective. The view of some experts in this area is that the Bill runs contrary to this objective. The Association of Patent and Trademarks Agents in the first paragraph of their submission say that unfortunately the Patents Bill runs contrary to the international trend and that, rather than simplifying procedures, it has made it more difficult for applicants to obtain a patent than was the case under the 1964 Patents Act. For example, they had counted at least 11 ways in which a patent application could avoid itself without any way of retrieving the situation. They say that if the Bill is enacted without amendment in this regard it will be most unfair and unjust to applicants and will lead to considerable difficulties in the future. I presume that every Deputy has got the submission from the Association of Patent and Trademarks Agents. No doubt the Minister and his advisers will have an answer to that charge.

The processing of questioning and answering and of our putting points to the Minister which have been made to us by qualified people, would be better pursued if we could do it in a less formal setting than in this House. I hope the Minister will consider that suggestion at the conclusion of Second Stage. If what that submission says is the case, the Bill must be amended to take account of the difficulties that will be posed by the fact that patent applications can become void without any mechanism for retrieving that situation. One of the objectives of the Bill is to enable effect to be given to the European Patent Convention. However, the Bill as published contains no provision equivalent to articles 121 and 122 of that Convention. The Minister at the end of his speech said:

In conclusion, I should like to mention another patent convention, namely the Community Patent Convention.

I am not sure whether or not that is the one signed by Ireland and other Community member states in 1975. I understood that this Bill was to do with that Convention. Perhaps the Minister would elaborate on that point.

The Minister used a similar modus operandi with regard to the Competition Bill, with the result that the Bill went through this House in an unsatisfactory manner. If any member of the Government is basing legislation on existing European legislation, the protocol in the European law should be imported directly into law here. This Bill as published demonstrates a tendency to include in the statute procedural matters which had previously been dealt with in the rules. It would be more sensible if the Bill were used to outline the principles and general policy of patent legislation and matters of procedure and administration were dealt with in rules.

One of the welcome innovations in the Bill is the introduction of short-term patents. Such a provision must be carefully framed and drafted. The Bill as currently drafted is questionable in his area. The only requirement to establish the validity of a short-term patent is the mere novelty of the invention. This is a point that was put to me by three of the people to whom I spoke about it. There is no requirement for ingenuity or originality for short-term patents to be accepted. This provision is of concern to those involved in patents and in trademarks. Will this mean that a patent will be granted for a trivial alteration to a product which may in its own way be novel but does not represent ingenuity and inventiveness? The existence of such patents will become a nuisance to industry and could bring the whole patents system into disrepute.

I mentioned earlier that the extension of patents from 16 to 20 years will affect the generic pharmaceutical industry. I hope the Minister is taking this into consideration. While we must attract foreign chemical industries, and in fairness we have to extend the patent for them from the existing 16 to 20 years, the generic industry which is allowed manufacture drugs after the expiry of the patent is also a valuable industry here. It will certainly be more important in the much more competitive market we will have to face from 1 January 1993. The generic pharmaceutical industry has been expanding very rapidly in this country over the last number of years. Turnover trebled in one case and employment has increased and is now 100 per cent. New export markets have been opened up and one group that I know of have initiated a capital investment programme of very considerable proportions. Because of what we are doing here today their ability to recoup that investment would be extended by four years from 16 years to 20 years. That is of serious concern to them even though they understood it was coming.

This industry is dependent primarily on the expiring of patents before they can start manufacturing their generic drugs. Growth in this area is achieved either through the development of the generic equipment to the branded product or, in their post-patent period, the development of an improved version of the original products. Last week's edition of The Economist dated 26 October to 1 November has a very interesting article on medicines. It makes the very interesting point that the life of some of these medicines is very much shorter and investment is very much dearer. The life is shorter because drugs, which normally would not be imitated for seven to eight years, no longer have this privilege.

Huge sums are involved and ironically so many of the bills for medicines are picked up by the taxpayer and not the individuals, so companies are continually chasing one another to invent new and better drugs. It is now thought that the life of a drug may be only two to three years before it is replaced by something better or as good. This process will continue. The people who manufacture generic drugs would have had a valley period between the eight year expiry of the patent and the 16 years before they could start manufacturing the generic drug. If this article is correct, all they will have is the valley period between two to three years and 20 years which makes the profitability of their industry more open to question in the future than it has been in the past.

The reality is that we have to get into line with the European procedures. We are committed to the fundamental objectives of the Treaty of Rome and the elimination of obstacles to the free movement of goods. That certainly was perceived as and was an obstacle to the free movement of goods. The achievement of the international market is central to the future of the European Community.

The Government should be a little more vigilant as to the effects of all this. Has the Minister had discussions with both sides of the trade in this, the people who will benefit by the extension of the patent period on the one hand, the normal drug manufacturers and, on the other hand, the manufacturers of the generic drugs who will be affected by this extension? Will the Minister be able to satisfy the latter that there will be some means to ensure that they will not be severely disadvantaged in this?

I hope the Minister has done a thorough analysis of the impact of the legislation on the generic pharmaceutical industry which, though not as important as the branded one, is still a very important part of the industry. Does the Minister realise that, if the proposed supplementary protection certificate becomes law, a further five years could be added to the life of a patent expiring after 1992? Under the present proposals only patents lodged after 1 January 1976 would be eligible for the SPC. I realise that I may be talking about the Community Patent Convention of 1975, but I am sure the Minister will correct me if I am wrong.

If there is no transition period in the proposed Irish legislation making all patents expiring after the date of ratification of the European Patent Convention eligible for a 20 year term, then such products may also be eligible for an SPC. The effect of that would be to extend it for a further five years. As I said, however, I may be mistaken in this because I may be referring to something that is covered by the Community Patent Convention rather than affected by this Bill which we are debating here today.

It has been a concern of mine for some time now that we have not been preparing the Irish economy and Irish business for what is to happen on 1 January 1993, that is, the end of this magic year 1992. Irish business will then be operating in a very much more competitive and complex environment than it is at the moment. In the case of the legislation before the House I am not sure if the Government have done a thorough examination and analysis of the impact it will have on Irish business. The point I am making here was made, I am pleased to note, by the chairman of CIE last week when presenting the annual accounts for that company. He said that many Irish businesses are due for a very rude awakening on 1 January 1993. We are constantly being told that there will be a market of 350 million people available to us after that date without any barriers and that we can flood it with our goods and make fortunes. However, the reverse is also true. There are industries out there serving that 350 million people who will be flooding their goods into the Irish market as well. Besides the necessity to make our products more competitive and attractive in a highly competitive market, to gain a foothold in Europe we must also make sure that what we are selling on the home market is capable of resisting the challenge of attractive, competitively produced goods from the other 11 countries.

There has been no indication from what has been said in this House that the Government have done the necessary analysis of the kind of competition we will be open to in meeting the challenge and taking up the opportunities that will be available to us in the future. The Government are beginning to realise that there is a crisis with regard to unemployment. The figures last Friday night were extremely disappointing in that regard. We would have been expecting, coming up to the Christmas period, that there would be a drop in unemployment for seasonal reasons but there was not; there was a rise. All new legislation coming before this House should be assessed to see what effect it will have on employment. Will it help to increase employment, to hold employment, or might it have the effect of increasing the level of unemployment?

The Government's attitude to the present negotiation of a future Europe are also causing great concern at least to me. I know that the Fianna Fáil/Progressive Democrats review of the Programme for Government does say that a White Paper will be published before the referendum — not before decisions are taken at Maastricht next month, not before the conclusion of the intergovernmental conferences on political and financial union but before the referendum, when it will be a fait accomplit. After the decisions have been reached we will then be given a White Paper saying what it means to us. We will have no chance to have an input into what the Government are saying. This point has been made here continuously by all Members of the Opposition.

We do not know what the Government are doing. We do not know who is in charge of the negotiations, whether it is the Taoiseach at the Summit, the Minister for Finance on the Minister for Foreign Affairs. We do not know who is responsible for taking up positions on behalf of the Irish people at the intergovernmental conferences, and we do not know what proposals they are putting forward. We know when the Taoiseach comes back from a Summit that he says he did not agree to that and he put certain views forward and that this or that was accepted. That is all we know. We do not know what he is going out to achieve on our behalf.

The Minister has had ample opportunity to study the impact of this legislation from a number of angles. Last year at the party's Árd Fheis, Deputy O'Malley is reported as saying that the Bill will be finalised in six to eight weeks. That was a year and a half ago and there are still a number of questions that have to be resolved. The Bill has been published but a number of questions still remain unresolved and are unclear. I understand from what the Minister of State said today that another Bill will be brought forward. It was reported in The Sunday Tribune that the Minister for Industry and Commerce, Deputy O'Malley, said at a conference that a referendum to change the Constitution may be needed to allow Ireland to adopt European law on patents. However I gather from what the Minister of State said today that in regard to this Bill a referendum is unnecessary but that if we pass another Bill to ratify another convention in the future a referendum may be necessary. If this is so, why was a combined Bill not brought in to allow us ratify both conventions at the one time? It seems to be taking an unnecessary two bites at the one cherry given that we could have ratified both conventions in the one Bill today. Will the Minister of State take that point up when he comes to reply?

Some people are of the view that a referendum is unnecessary and argue that the European Communities Act, 1972 and Article 29.4.3º of Bunreacht na hÉireann cover this matter. Is the European patent legislation going outside the scope of the Treaties? I have been advised that the agreement relating to European Community patents reached at Luxembourg on 15 December 1989 seems to state categorically that the achievement of a common market is dependent on the creation of a Community patents system. If that is so, it would not appear that a referendum is necessary but, again, I would like to have the advice of the Minister of State on that matter.

The Minister of State should also be acutely aware of the difficulties facing the Patents Office to which I referred earlier. The fact that staff felt the need to resort to legal action to resolve the situation with regard to the backlog of work must mean the Minister of State has had to address the question of staff numbers at the Patents Office. Yet, here he is introducing legislation without resolving the central question of staffing. We must get an assurance from the Minister of State that if the Bill is passed the necessary machinery will be given to the Patents Office to do the work which this House, through this legislation, is going to ask them to do.

This is a further example of the approach and attitude of the Government to policy formation and decision-making. Everything appears to be decided on an ad hoc basis and there is no clear understanding of the ramifications of major legislation such as the Competition Bill which was passed earlier this year and now this legislation in relation to patents. It seems to be a very short-sighted policy if the Department of Finance are calling for an embargo on staff numbers, yet in this area with adequate staff they could earn far more, perhaps one hundred times more, than the amount needed to employ them.

As we are all aware, the Government's attention for the past two to three months has been focused on matters much closer to home and their personal interests. They have had ample opportunities during the past two years to address these crucial questions. This legislation has been left hanging around for a long time and it is regrettable, because of priority of party political considerations, that any notion of the national interest has receded. That applies to the intergovernmental conferences which have reached a critical stage. We are now only six weeks away from the European Community summit to be held in Maastricht where further decisions will be taken on the future integration of the European Community, yet the Government are ill-equipped and ill-prepared to participate at that conference. They have no clear views on European Monetary Union, the reform of European institutions and implications for Irish foreign policy of the development of a common security and foreign policy.

While the Fianna Fáil Party in particular were tearing one another asunder and the Progressive Democrats were examining their consciences an article in the Financial Times on 29 October laid out what the Netherlands paper to be put before the summit at Maastricht will contain, which is quite disturbing from an Irish point of view. It would appear this has passed over the heads of the Government. It states that to be considered fit for European Monetary Union a country must have a rate of inflation close to that of at least three of the best performing member states in terms of price stability — I am not sure if we would qualify, we probably would qualify on the inflation rate element. A country is expected to have a sustainable budget position without any excessive deficit and we would not qualify on that. According to the article a country, having kept within the narrow band of the exchange rate mechanism for the past two years must have a durability of its convergence reflected by its long-term interest rates and these criteria were elaborated on in separate protocols issued the night before the article was published on 29 October. It is clear we would not qualify for membership of the European Monetary Union on those terms.

There is a let-out in that the document went on to say that if any five countries — that is the significant figure — chose not to go ahead then, the other seven will go ahead without them. The British Government have already said they are not going ahead and the other four are clearly Greece, Spain, Portugal and Ireland. Under the proposals to be made by the Netherlands next week we are on the way to a two speed Europe which is not in the interests of this country. I regret to say the Government are not addressing this matter in the way they should be. I urge the Minister of State to accept the amendments to the Bill and clarify the matters raised today. As I said at the outset, this legislation is crucial to the modernisation of the Irish patents system. The Minister must ensure that the legislation passed is the best possible and works to the best advantage of Irish industry.

Concern was expressed during the summer about trademarks and the lack of controls here for the protection of trade marks. One manufacturer of jeans felt that their industry was being undermined through the importation of cheap inferior goods which were similar in appearance but were not made of the same material or of the same durability. I would like the Minister of State to state when replying if he has any proposals to appoint a trading standards officer, similar to the one operating in the United Kingdom, who would be able to take up complaints such as the one made during the year by one company.

Finally, I hope the Minister of State will accept my suggestion that after Second Stage the Bill should be dealt with by a special committee where I would hope we could help the Minister of State to make it better legislation and ensure that we understand fully the significance of all the sections.

Mr. Bell

The Labour Party welcome the Bill and will support it. It should not be necessary to waste time in the passage of the Bill through both Houses because all we are doing is regularising the situation in relation to European law. If there is any criticism of it it must rest with all of us in view of the fact it has taken so long to get the Bill into the House. I hope it will not take us as long to get it through the House. Almost 20 years have passed since the various conventions were signed. Many other Bills to give effect to European law are lying on shelves in various Departments and it is only now in the run up to 1992 — we are getting near to the finishing line — that we are being forced to push these Bills through. We welcome this as there is not much point in us being members of the European Community under the Single European Act when most of our legislation is 20 years behind European law. While supporting the Bill we will endeavour to co-operate with the Minister in getting the Bill through the House as speedily as possible.

I particularly welcome section 28 of the Bill which gives the Minister of the day the right to update the regulations which will give effect to international conventions, in other words, when we are a party to international conventions we will not need new legislation. Legislation can be kept up to date by having the matter dealt with by order. While I welcome that I hope it will not be abused by this country being a party to conventions which would have a detrimental effect on us.

The CII have been calling for the implementation of this legislation for quite a number of years. Because of the delays under the existing structures many inventors were not encouraged to go through the process of registering patents or, alternatively, were going outside the country where I understand the process is much simpler and more secure in other parts of Europe. I agree with Deputy Barry's comments in relation to this section because there is no point in passing legislation and finding that, because of voluntary redundancies within the Department, we are denuded of the expertise necessary to keep pace with the substantial level of applications. As has already been stated, this section should be self-financing, indeed Deputy Barry made the point that it should be profit-making. It seems rather strange to let the necessary expertise go into private industry.

I particularly welcome the section dealing with the small inventor. The man or woman who comes up with a novel idea — the small inventor — is very often the backbone of small industry and, therefore, Irish industry. I am glad that this is enshrined in the Bill and encouraged. I hope it will be accompanied by a simplification in relation to application and registration. If we are to encourage the small inventor not alone should we make the fees lower in relation to an application but we should also simplify it. Many good inventions are lost because people are not encouraged to register them. Indeed they may not be able to afford the cost or time to have the regulations applied properly. When the Minister is making regulations under various sections he should simplify and publicise them, as Government notices are very often complicated to the ordinary person. Inventors are not always aware of the fact that their inventions can be stolen, not just within their own country but outside it, which would mean robbing Irish industry of good ideas or development; this applies particularly to small industry.

The question of a referendum is confusing because I would have thought it should be possible to have a referendum which would change the Constitution in such a way as to allow the Oireachtas to put legislation through, thereby updating our law and bringing it into line with that of the EC. This is the second time that the question of a referendum in relation to European law has come before this House in the last year. If it means that we have to update Irish law to bring it into line with European law and that we have to have a referendum to give effect to each one, we would need one every six months. A much more simple form of dealing with this type of development, particularly where it is a basic administrative one which will not have serious effects on the everyday lives of our citizens, is simply to update our law to help the men and women who are prepared to use their inventive brains to help the development of Irish industry.

The Labour Party welcome the Bill and we will co-operate fully in having a speedy and effective passage of this necessary and important legislation through both Houses of the Oireachtas.

Mr. Rabbitte

We are all agreed that this legislation is long overdue. Now that it has finally come before the House we should facilitate its expeditious enactment as best we can. However, I agree with Deputy Barry that it is the kind of Bill which is ideally suited to treatment in committee inasmuch as it is a very complex area which demands a degree of specialist knowledge and expertise which most Members in the House clearly do not have. In the event of the decision being made for the Bill not to take up the time of this House formally in the Chamber — except to the minimum extent possible — perhaps we could have a far more useful discussion in a committee, calling on the necessary advisory resources, than will be the case now.

This area is very complex. Deputy Barry raised the question — I have been thinking about it since — of what "indigenous" means. That is a major question, not merely in the context of the legislation before us but in the context of our future direction in terms of industrial policy. There still seems to be a worthwhile and indeed essential distinction which can be made between offshoots of foreign-owned companies locating here and us developing our indigenous industrial base.

As Deputy Barry said, in the world of free market, single market, free movement of capital and so on it is becoming more difficult to define "indigenous" in the Irish context. It is true that the few successful indigenous companies have decided to diversify and buy into countries from Britain to the United States to South America, but does that make them any less indigenous? I do not think it does. If it makes good sense from the point of view of corporate strategy that that is what they should do, so be it. However, one of the greatest weaknesses and defects in our extraordinary rate of dependency on foreign companies' subsidiaries based here is that at the end of the day too many of them have not put down roots here and too many of them of course export the profits made here.

We have found no mechanism — I am not sure there is the political will in any event to look for it — to retain even a proportion of the profits for reinvestment for job creation here. The black hole that was discovered a number of years ago has grown bigger and bigger, and more and more — over £2 billion — is repatriated to the country of origin. That cannot be good. It is no wonder, in an economy dependent to the extent that we are on such companies, that there are over 250,000 people unemployed and 100,000 people have emigrated in recent years. I welcome the existence of these companies here and I very much welcome and understand the importance of the 80,000 jobs they create here but in terms of any kind of national industrial strategy, if we had one, we have no control over them at the end of the day.

To answer Deputy Barry's question, "indigenous" means that these companies are rooted in Ireland. It may be best symbolised by the fact that the headquarters of these companies are in Ireland. I accept that many of them may find it necessary, as I have said, to diversify outside of Ireland, but at the end of the day they are rooted here, their headquarters are here and if they were likely, for example, to develop research and development, which is connected with the legislation we are discussing, those facilities would be located in Ireland, which would be the exception to the norm. Unfortunately, almost invariably the multi-national companies are locating research and development facilities outside of Ireland and as a result we are paying the price.

The length of time that has elapsed between the signing of the convention in 1973, when Ireland seemed to make a statement that was pro-investment, projobs and so on, and the bringing forward of this legislation is indefensible. It would appear that we have been sending out the wrong signals to industry up to now. We have refused to say to industry that if they create intellectual property rights in this country we will treat them the same as they would be treated elsewhere in Europe. That as a general point of principle is wrong. It is unfortunate that that is the way the matter has developed and that it has taken us so long to say that we will give them the same advantages as they would have anywhere else in Europe. We certainly give them better advantages in terms of taxpayers' money, grants, back-up, tax shelter and so on. Therefore, I cannot see why we should not be clearly on the record as saying to these companies that if they create intellectual property rights in Ireland we will treat them the same as they would be treated anywhere else in Europe.

There is of course an argument that I will refer to in a couple of minutes in more detail as between the perceived needs of the multi-national sector and those of the indigenous industry. For example, it is probably best exemplified in the area of the drugs industry. It is very difficult, without the kind of teasing out that Deputy Barry argued for, to speak with authority on this question because the multi-national companies will make a very strong argument first of all based on employment, that they are providing a great deal more employment here than is the generic drugs industry, taking the drugs industry as an example. They will point to the number of jobs they create here as compared to the very limited number of jobs in the area of indigenous industry. They will also argue that they reinvest vast amounts of money in developing a new product and that they have to be given a reasonable period of time to regain the cost of investment in that area.

The generic drugs industry on the other hand will argue that they can supply drugs to our health services, for example, at a cost of 30 to 40 per cent lower than the cost of branded products. I would have thought that is a major issue at a time when once again we are facing cuts in public spending, when the health service is already in some difficulty, to put it mildly, and we are now talking about having to effect further cuts in the area of the health services. I would have thought that the provision of generic drugs, which would save an estimated £50 million for the health service, is a major issue and one that deserves consideration. The multi-nationals would argue that a prerequisite to any generic industry in Ireland would be a strong primary-based research industry. As I have said, in the absence of the kind of facility that Deputy Barry spoke about to tease out these questions, it is very difficult indeed to form a view on the matter.

I would say in passing that I had intended to deal with the aspect to which Deputy Barry devoted some time, that is the capacity of the Patents Office to cope with the changes we are enacting in his legislation. My understanding is, as Deputy Barry said, that the Patents Office has been seriously neglected and run down in recent years and, therefore, its ability to cope with the impact of this legislation is questionable. That is very regrettable and inexcusable in an era of computerised technology. We had the same kind of argument during the passing through this House of the Companies Bill, that the Companies Office has been disgracefully out of date for a number of years, as we are now discovering in some very high profile cases. The Minister for Industry and Commerce has assured the House that changes and improvements have been made there but I am assured by researchers whose job it is to have virtually daily contact with the Companies Office that it is still far behind the times. However, I will not dwell any longer on a point that Deputy Barry has dealt with at some length.

The whole patents area is an extremely complex and specialised one. It is certainly not an area about which the lay person generally knows very much and it is a subject on which he we have had difficulty in getting much informed advice. Indeed the Government would seem to be in the same position having regard to the time it has taken to bring forward this legislation. The Bill has been promised for several years. It was eventually published in July of this year it took a further four months for the Government to come up with the Explanatory Memorandum. That was produced only last week, just two days before the original date listed for the start of the debate on the Bill. In many respects the Explanatory Memorandum is not much more informative or helpful than the Bill itself.

On the surface, the objective of the Bill appears to be reasonably straightforward, the ratification of the European Patent Convention and the Patent Co-operation Treaty which was signed by Ireland and 14 other countries in 1973. All our fellow members of the EC with the exception of Portugal have ratified the Convention by legislation, and it seems reasonable that we should also do so. The Convention enables a single patent application to be made to the European Patents Office in Munich rather than having to make individual patent applications in all the individual countries. This would clearly cut down on costs and on delays. The impression has been given in the debate so far that the European Patents Office is a creature of the European Community but as I understand it that is not the case and the European Patents Office has the allegiance of a number of countries that are not members of the European Community.

I suggest that there are very serious moral and ethical issues raised by the whole concept of patents. There has been very strong lobbying for this legislation from the powerful multinational drug industry. This Bill has serious implications for any move to promote the wider use of generic drugs, which most people acknowledge would be an effective way of reducing our massive drugs bill. There are also implications for the developing countries in the Third World. A patent is a uniquely powerful and valuable resource. In some promotional material issued on behalf of the drugs industry, a solicitor defines it as follows:

A patent gives a statutory monopoly within the country to the person to whom the patent is granted. It prevents anyone else imitating, producing, marketing, vending or indeed having anything to do with a product which imitates that in such a way as to duplicate the processes or the characteristics which are within the original invention. In short, a patent is a protection of inventions.

There is nothing wrong in principle with allowing an inventor to protect his or her invention and to benefit financially from it. There is nothing wrong in principle with allowing a company which has spent considerable sums in researching and developing a product from protecting it and benefiting from it. It is a particularly straightforward issue if the invention is a new toy, a new tin can, a longer lasting light bulb or some such product. Indeed any changes in industrial legislation that would encourage the location in Ireland of research and development facilities by some of the subsidiaries of the multi-national companies, is to be welcomed. However, the moral issue raises its head when the invention is a new drug or medicine, for example a new drug which could reduce suffering or even save life. Is it moral or just that someone who invents a new drug — and the inventor in this case will not normally be an individual scientist beavering away in a back-room laboratory but a huge multinational company — should have the sole right to exploit the invention for commercial and financial purposes alone, and to restrict and control the production of that drug and to determine the price at which it will be sold? Let us suppose that a company discover a new drug that cures AIDS. Is it right that the company should say they will sell this drug only to those who can afford to pay for it? Is it right that a company can say to a Government that they know that the drug can be produced at a lower cost than that being charged by the company but they will not allow this to happen because it is in their commercial and financial interests to protect their patent? These are fundamental moral and ethical questions that the Minister has not even touched on in his opening speech. I would like to hear his views on those questions.

There are particular moral and ethical questions relating to patent rights and developing Third World countries. Is it right that hugely successful multi-national companies in the developed world can restrict access to techniques or products which could combat hunger, disease and economic want in the Third World? Members could dwell on this major ethical question for some time.

As I pointed out earlier, the principal group lobbying in Ireland for the introduction of this Bill is the multinational drugs industry. They have claimed that the failure of this country to extend the operating length of a patent from 16 to 20 years, as is provided for in the Bill, has had serious implications for their investment in Ireland and has jeopardised the jobs of almost 12,000 people employed in the wider pharmaceutical industry in Ireland. It is hard to see how an extention of just four years to a patent could have such a dramatic impact on the industry, although I presume the promoters of this point of view know what they are talking about. I am advised that it could take up to ten years to get a patent and therefore the period to regain investment is approximately only six years.

The drugs industry is, of course, immensely profitable. The cost of drugs constitutes more than half of the total cost of running the general medical service in this country. More than £100 million per year is spent on drugs. One of the principal hopes of reducing this massive drugs bill has been in the greater use of generic drugs. A generic drug is a non-branded drug normally produced when the patent on the branded drug expires. The generic product is exactly the same in every respect as the branded product and has the same chemical constituents and medicinal impact. Normally it can be produced much cheaper than the branded product, partly because the multi-national drug companies spend huge amounts of money in promoting and advertising the branded product. One has only to look at any medical publication to get an indication of this. Any doctor will tell you that they are deluged with promotional material from the drugs industry, and in my experience some doctors prove more susceptible to it than others.

In addition many experts believe that there are far more branded products on sale than are actually needed. There are more than 15,000 branded drugs on sale in this country; however, a huge number is simply the same basic drug under a different brand name, packed in a different carton. Some years ago the World Health Organisation estimated that virtually every medical eventuality could be covered by about 1,000 generic drugs. One Irish manufacturer of generic drugs has claimed that his company could supply 40 per cent of the drugs on sale on the Irish market at below 30 per cent of the price. The passage of this Bill will certainly help the multinational drug companies protect their exclusive rights to produce certain products over a longer period of time and will make it more difficult for Irish producers to manufacture and to provide cheaper generic drugs for the GMS. Is this really in our interest? I do not have a closed mind on this subject because I do not think the answer is simply black or white. However, I would like the Minister to refer to this point. On the question of substituting generics for the branded product, the multinational companies would argue that it would stop the clock of scientific research if that were the case. As against that, critics of the multi-national drug companies argue that they do not spend all that much on research and development and that, in the case of genuinely new products, which the critics say are rare, the companies should be allowed to charge high prices to recoup their investment and make a decent profit for the period in which the product is under patent. Another argument against the adoption of a cheaper drugs policy by the Irish Government is that many of the big drug manufacturers are located in Ireland and they may be less inclined to invest here if the Government pursue a policy of not allowing them to charge high prices for their products. However, the vast majority of these companies do not manufacture the finished products which are sold in Ireland, they manufacture part of the drug which is then exported and manufactured in complete packaged form elsewhere. I think that a cheap drugs policy by the Department of Health would have little impact on the level of sales and profitability of these companies and it is probably somewhat heavyhanded of the industry that, because they are located here where they can make huge profits anyway, they can force the Department of Health and the consumer to pay through the nose for branded products.

There must also be concern about where the whole patent process is going, and particularly about the possibility of its extension into areas not previously covered by patents. The European Commission has produced a draft directive on the legal protection of biotechnological inventions. When the European Convention which this Bill seeks to ratify was being drawn up it excluded plants, animals and biological processes from patenting. The EC Draft Directive brings it into a completely new area and raises the spectre of patents being sought for plant varieties, species of animals and even life itself. If memory serves me, a recent BBC "Newsnight" programme showed a struggle for control of the patenting of the life gene itself. This raises far-reaching questions which so far this debate has not sought to deal with. For example, in today's Irish Times an article written by Tom Wilkie states:

The European Patent Office has granted the first European patent on a living animal, throwing into confusion efforts to harmonise European laws on patenting biotechnology.

The Munich-based EPO has decided to grant Harvard University a patent covering a laboratory mouse genetically engineered to be susceptible to cancerous tumours.

My illustration shows that already the business of patenting has moved considerably beyond the convention that led to the legislation currently before us. As has already been remarked, this Bill is completely unclear on our position on the Community Patent Convention. Because the Convention provides for a European court to have higher jurisdiction than our Supreme Court, it is suggested that a referendum is necessary. I should like to hear the Minister address that particular question in his reply.

In conclusion, the Bill seems to be overdue; everybody in the House acknowledges that point. The Bill seeks to modernise our legislation on intellectual property rights and patents generally. We need to ensure that a back-up is provided in the form of the Patents Office to cope with the Bill's impact.

Before I sit down I should like to ask the Minister a further question about transitional provisions. After reading the Bill, I am not clear that a question does not still remain in relation to transitional provisions for expired patents which are the subject of petitions for extension of term under section 27 of the Patents Act, 1964. I understand that question was resolved in current Australian legislation by providing that where recently expired patents are the subject of extension of term proceedings, the patentee has the option of choosing the four year extension for patents for medicines or continuing with his proceedings for a longer term.

My party will support the Bill.

Mr. Cullimore

I compliment the Minister and the Government for bringing the Bill before the House. The Bill has two functions: first, to update our domestic law as set out in the Patents Act, 1964 — this update applies to a variety of functions, including the examination, granting and ratification of patents; second, to associate our domestic law with laws of other jurisdictions both within and outside the European Community that have already been ratified by the European Patents Convention and the Patent Co-operation Treaty. The thrust of the Bill is to ensure that patents are handled as efficiently as possible. In this context I particularly welcome the streamlining role of the European Patents Office as well as the procedures that apply for patents protection in the short-term as well as in the long-term.

The measures that provide for one central application are also to be welcomed, as are those devised to protect the interests of the small inventor. Short-term patents of ten years are a firm protection for simple innovations and inventions. Small to medium-sized businesses will find that these are very helpful as they will mean fewer official fees and they will also be quicker to obtain.

The Bill will also expedite the present backlog of applications for patents. Under the present system the patent agent sends in an application together with supporting documents. The matter is then left with the Patents Office until they raise relevant queries. The streamlining in this Bill is very welcome. Most of the backlog — which, I understand, is in the region of 20,000 applications — is due to the delay in the Patents Office raising queries. Under the proposed legislation the applicant's agent will be in a position to initiate any of these amendments, which will obviously have the impact of reducing the backlog I mentioned.

In a High Court judgment delivered by Mr. Justice Barron some years ago it was held that under existing law patent examination staff have a certain authority independent of the controller. The particular case before the court concerned a dispute as to the manner in which the backlog of work in the Patents Office could be reduced. When the present controller was appointed on 14 September 1983 the number of applications awaiting examination amounted to about 13,000. The controller then devised a more rapid procedure for dealing with applications. He found that certain shortcuts were possible without detriment to the final product. A circular was issued to examiners telling them how they could streamline the process of dealing with patent applications. However, on technical grounds, the High Court ruled that the controller could not proceed as planned if the process involved shortcircuiting existing patent application procedures; it added that the examiners and their duties were specifically mentioned in the Patents Act, 1964, and that since this gives them a certain legal independence in the performance of their duties, the controller was not entitled to direct them completely in their work. In other words, the controller was no longer in effective control. The new Bill takes account of that judgment and omits reference to examiners altogether. Henceforth all responsibility and authority in relation to applications will rest firmly with the controller, a clarification I welcome. I am sure that will ensure also greater consistency, efficiency and effectiveness in reducing the backlog of 20,000 applications for patents.

The Bill adopts a fresh approach also to the examination of patent applications, the old system having created an unacceptable backlog of applications awaiting examination in the Patents Office. Every Member of the House will be aware of the urgent need to create new ideas and employment. This House cannot tolerate circumstances prevailing in which over 20,000 applications for patents remain in the Patents Office.

When speaking on the motion of confidence in the Government last week I stressed the need for the involvement of communities in the creation of employment. Local initiative needs to be encouraged. While in general terms the Government can create the right climate for such eventuality, at a more technical level we in this House must ensure that as many obstacles as possible are eliminated. The provisions of this Bill in regard to short term patents, their importance for smaller and medium-sized businesses will ensure the removal of one such obstacle I greatly welcome because it is an important factor in the creation of employment. We all represent constituencies that are perhaps dependent on one large factory to solve our unemployment problems. Again, when speaking on the motion of confidence in the Government I stressed the need for a positive approach to the creation of jobs on the ground, removing every obstacle in that path. I greatly welcome the Government decision to introduce a short term patent which was one obstacle to the creation of employment.

Under the transitional provisions of the Bill any patents granted under law obtaining when the Bill before the House is enacted will carry a term of 20 years. The present patent term is 16 years. During the last two years of the extended term third parties will be afforded an opportunity to engage in certain activities relating to an invention without being guilty of patent infringement. This will enable companies to undertake research and testing of a patented product before the patent expiry date.

The provisions of this Bill also recognise the need for generic drugs to be made available in the marketplace quickly. We are all aware of the problems experienced by our respective health boards and their need for extra cash. We all tend to talk about the provision of generic drugs as a means of solving some of these problems.

Deputy Barry asked why the term of 16 years had to be increased to 20 years. The important point to be made here is that, if we are to conform to the European patent term then we must legislate for a 20-year period. I welcome the Minister's decision to allow research commence after 18 years into generic products. The Minister has been particularly astute in including this provision. In my constituency the South Eastern Health Board spend in excess of £5.5 million on drugs. Therefore, a small percentage reduction in their cost would be a significant saving. To that extent the provision of generic drugs will be an important factor in reducing the drugs bills of the various health boards.

I welcome the Bill and compliment the Minister on its introduction.

Mr. Lowry

This Bill is not a subject to excite public imagination. However, it comprises legislative proposals in an area critical to the performance of many businesses and, through them, the performance of many segments of our economy. The last time a Bill was enacted in this area was almost 30 years ago. That Act has served us well in the interim although the speed with which change has taken place in so many areas of industry has highlighted deficiencies therein.

The Bill affords us an opportunity to re-examine important legislation, to retain provisions that have proved to be good in the old Act while, at the same time, allowing us revamp and develop those provisions of that Act which we perceive to have been the cause of procedural and administrative problems not in the best interests of an applicant or the State.

In offering comment and opinion on the provisions of the Bill I am critical of individual segments while appreciating their overall tenor. For example, the Bill contains some serious anomalies and unfair impositions on applicants. It is my hope that our discussions here will serve to iron out the remaining difficulties. The existing Patents Act dates back to 1964 which, in terms of the lifetime of an Act requiring change, render it relatively recent. Nonetheless, the rapidity with which technological change has taken place within the past three decades — a change with which Ireland has kept pace and, in many instances, been the leader — has brought associated problems in the area of patents and patents ownership. In turn, this has lead to major difficulties caused by the sheer volume of applications and the difficulties of dealing with them under the law as it has obtained to date. In such circumstances the system may well have been susceptible to problems not of its making.

It was obvious that the earlier Act was in need of being overhauled and revised or updated, not merely to clear the backlog in the processing of applications but to advance further the harmonisation of patent legislation in line with that of our EC partners and other states outside the EC amenable to the widespread ratification of the Patent Co-operation Treaty and the European Patent Convention. We contend that the simplification of procedures and the removal of restrictions is the correct way to advance this international harmonisation. The granting of a patent should be oriented towards facilitating applicants since the State ultimately benefits from the granting of such patents and their attendant rights by way of the productivity of participants. Therefore, it follows that the energies of the State should be directed to rendering it a relatively simple procedure for an applicant while maintaining the balance of correct procedures and legal safeguards.

Accordingly, while we welcome the fact that the Minister, through this Bill, is taking a fresh look at the whole area of patents this can be welcomed only if it brings notable and measurable improvement of existing legislation, providing a more streamlined procedure from the point of view of applicants and the controller. We contend that is not the case and hope to explain that contention.

For example, the Bill provides for a number of circumstances in which there is no fail-safe device under which a patent application could be rendered void without providing any corresponding recourse to rectifying that position. One of the purposes of the Bill is to give expression to our desire to ratify the European Convention Treaty, Ireland and Portugal being the only two member states not to have done so already. Yet, the Bill does not include any provisions equivalent to Articles 121 and 122 of the European Patent Convention, widely held to be desirable and necessary.

Part III of the Bill relating to the granting of short term patents is an innovation which will be welcomed by individuals and smaller businesses whose commercial existence is dependent on their ability to modify and change quickly and able to do so without the financial impositions or time constraints normally attending a full term patent application. But there is an element of the "bending over backwards" syndrome here. For example, section 63 (4) states:

An invention shall be patentable under this Part if it is new and useful and susceptible of industrial application notwithstanding that it may not involve an inventive step.

That is an open invitation to trouble. Goodness knows what kinds of difficulties this provision could give rise to through expedience on the part of an applicant and lack of firm guidelines on the part of the controller. For example, in whose view will it be "new"? How does one define "useful" in the context of an untried convention? Whose definition will be accepted? Will it be that of the application or the controller? Such an approach may well ease the passage of a patent application through the system but I have no doubt it will add greatly to the volume of applications, in addition to introducing a level of frivolity which should never be intended or acceptable under any legislation.

On a further broad, general note it is a matter for concern and clarification that rules arising under the provisions of the Bill — which under existing legislation would be the subject of a statutory instrument to be introduced by the Minister — henceforth may be the preserve of the controller. Since the overall granting of patents is very much one for ministerial and departmental supervision it is vital that there be no diminution or dilution of ministerial power and responsibility in this area. The provisions of the Bill purport to give the controller independence of action and authority not previously vested in that office. There is need for an explanation why the Minister now sees fit to adopt this course.

That is a broad perception of the Bill and what it seeks to do. I will now deal with some of the specifics in the sequence in which they occur in the Bill. I have already mentioned the apparent dilution of ministerial responsibility proposed and I would ask for further clarification of section 6 (3) which appears to give the controller an independence not envisaged in the 1964 Act and to pre-empt the ministerial guidance and direction bestowed by that Act, and which would be vital to the implementation of such a critical function.

The wording of section 9 (5) relating to the Minister's power to change provisions regarding the patentability of inventions in the contex of the European Patent Convention needs to be examined from the point of view of Irish law as it relates to the EPC. Section 19 (2) is another provision which is new to this area and in my view it should allow for statutory power to make decisions on questions of fact or in providing for a solution since this is an area where there may not be an agreed arbitration procedure.

Section 25 (1), in tandem with section 18 (3) and section 23 (2), relates to the payment of a filing fee, something which should not be part of the Act but should be covered by the rules, as should all matters relating to administration and procedure. The inclusion of reference to a filing fee is a departure from the provisions of the 1964 Act.

Regarding sections 29 to 35, it appears that the spirit and perhaps even the principle of the EPC is being infringed, as is our own current legislation, by the absence of a mechanism whereby an interested third party is allowed the opportunity of presenting information to the controller in order to prevent the grant of an invalid patent. This is a right which should be an intrinsic part of such proposed legislation and unless incorporated into the Bill it would merely add to the burden of the existing procedure rather than ease the position.

Section 31 (5) contains a provision which is at odds with a later provision in the Bill. This section states that the controller may refuse to grant a patent in pursuance of more than one application in cases where there are two or more applications for the same invention, all with the same date of filing or the same date of priority but all filled by the same applicant or his successor. According to section 60 (2) where an applicant has had a patent granted under this part for an invention for which a European patent designating the state has also been granted, then the Bill states that the controller shall give the proprietor an opportunity of making observations and of amending the specification. Failure to do so would result in the revocation of the patent but not before the applicant has had a chance to carry out amendments. This is completely at odds with the principle proposed in section 31.

One of the purposes of the Bill is to facilitate the applicant in processing his request with a minimum of stumbling blocks. With this in mind, I would see section 32 (3) as being in direct contravention of the spirit of the Bill. Amendments are generally found to be necessary because of an oversight or lack of knowledge on the part of the applicant. An amendment should not be refused because of procedural difficulties but should be referred back to the applicant for reappraisal as suggested by section 42 (4). I would submit, therefore, that section 32 (3) should be deleted.

I have already mentioned that the Bill does not contain any provisions equivalent to Articles 121 and 122 of the EPC. These are the provisions in the convention which allow for further processing of applications or the reinstatement of applications which have unintentionally lapsed. This is a most important consideration and should form an integral part of this Bill. I would urge the Minister to reconsider his views on this and to appreciate the difficulties to which lack of these provisions would give rise. Section 31 (1) (2) (3) cover the restoration of lapsed patents in the very spirit in which section 35 should have been written. The same spirit of facilitating the applicant should be evident in both these provisions and I would recommend that the Minister reconsider these two sections with a view to incorporating my suggestion.

Section 63 in Part III deals with applications for short term patents. It is conceivably the part of the Bill which if enacted could lead to the greatest number of problems since it is new and therefore untried. It also introduces a new set of ground rules on which an application must be based. Section 9 states that "an invention should be patentable under this Part if it is susceptible of industrial application, is new and involved an inventive step". These three tenets are most important. They are the requirements for patentability laid down in section 9 but in section 63 we are told that patentability as it relates to an application for a short term patent requires that it be both "new and useful and susceptible of industrial application, notwithstanding that it may not involve an inventive step". This means that it shares with full-term applications the requirement of being "new" and "susceptible of industrial application" but, unlike the full-term application, it must be "useful". Does this, by implication mean that inventions submitted for full-term patents need not be useful? So the Bill would have us believe. The invention submitted with an application for a short term patent need not involve an inventive step. What then will set it apart in order to render it patentable? Certainly, the requirement of being "new" is merely restating an earlier and acceptable provision.

Similarly with an invention's applicability to industrial use. But what of its usefulness? What renders it useful, or indeed, what would render it not useful? Section 9 of the Bill tells us that usefulness is not a requirement for patentability, so why does it appear here? It is also puzzling why, in order to qualify for a short term patent, an invention need not involve an inventive step. Surely, by its very nature or by definition, an invention must involve an inventive step over prior state of the art.

It may well be that this particular section was inspired by a desire to speed up the application process and, if so, that was not in the best interest of the Bill, however, laudable the desire. "Short-term" should not be confused with "secondhand" and products submitted for short term patents should be as susceptible of critical examination as those submitted for full-term patents. It is imperative that due care be taken to avoid any sense of expedience in the granting of patents and we feel that this is exactly what could happen if this particular section is not reviewed and reconsidered.

By all means make it easier to submit applications and do as much as possible to ease the flow of the application through the system but in the heel of the hunt, the product and the process by which it was granted a patent must both be capable of standing up to the closest scrutiny, from whatever source it may come. The Minister and the various bodies with expertise in this area must get together to arrive at an all-round acceptable alternative to section 63 (4) as it is framed. Similarly, in relation to the application itself, section 63 (7) is at variance with section 19 (1) of the Bill in so far as it requires the specification to show only the invention and the best method of performing it known to the applicant, whereas section 19 (1) requires the application to be sufficiently clear for the invention to be carried out by a person skilled in the art. This is applying two different parameters of fitness for use to a situation where a single parameter should apply. Again, we would urge that the wording here be reviewed and reconsidered.

Section 65 is also anomalous in so far as it does not allow the same status to short term applications as is allowed to divisional applications under section 24. This would permit short term applications to be divided out of an ordinary application. For section 65 to decree otherwise is to discriminate against short term applications. The correction of this anomaly requires only changing the wording of the section to read "Sections 29, 30 and 35 shall not apply in respect of an application for a short term patent". The Circuit Court has the right to revoke a short term patent in proceedings relating to an infringement. This right should be made clear in section 66 (5) which only specifies that the court referred to is the Circuit Court and does not refer to the right to which I referred above.

I previously discussed the lack of an inventive step in the requirements for a short term patent application. This should form part of such requirements. Similarly, it appears that if the claims in respect of a short term patent are not supported by a description of the invention this should form grounds for revocation of the patent as there would otherwise exist a possibility of claims being made which are too wide in scope to be sustained.

Earlier I referred to my belief in the need for statutory instruments relating to the provisions of the Bill. It appears the Bill proposes to hand over some of the powers which would normally be vested in the Minister to the controller. This is a matter of concern. This feeling is reinforced by section 68 which relates to the granting of voluntary and compulsory licences. The section does not give statutory direction to the controller, showing how best he should carry out his duties under the section. This should not be construed as being critical of the office of controller but merely as voicing a concern about the way in which the holder of the office will be asked to make critical decisions in regard to the issuing of licences without ministerial or statutory directions on which to base those decisions. It is an area which should have a significant bearing on the advantages accruing to the owner of the patent and the State, as well as ensuring a wide base of use for the invention.

Viable use of an invention to the benefit of all interested parties must be the ultimate aim of a grant of patent system. It appears to me and my party that statutory guidelines must form an integral part of legislation governing this area of activity. An element of uncertainty is introduced when these statutory guidelines or directions are not provided for in the Bill and gives it a degree of variability which is not in keeping with its subject matter. Section 60 (3) of the Patent Bill 1981, incorporated a provision to cover such an area. It might be productive to re-examine the wording of that section with a view to introducing changes in the Bill under discussion. Any new wording I have suggested should provide: (a) that the controller should ensure the widest possible use of the invention in the State consistent with the owner of the patent deriving a reasonable advantage from the rights devolving on him by grant of the patent; (b) that the controller should ensure the maximum advantage will accrue to the owner consistent with the invention being worked by the licensee at a reasonable profit in the State; (c) that the controller would seek to ensure that there would be an equality of advantage accruing to several licensees and, if necessary to achieve this, reduce the royalties accruing to the owner under any licence previously granted, and (d) that the controller would make it a condition of the granting of a licence so that the licensee would be precluded from importing goods into the State, such goods not being made by the owner or his agents, in cases where the importation of such goods would be an infringement of the patent.

Strangely enough, in view of my earlier remarks concerning the lack of statutory direction for the controller, I now want to deal with a Part of the Bill in which there appears to be a complete lack of input expected from the controller. This, of course, would give rise to an equally anomalous situation. I am referring to Part VI and, more specifically, to section 80, which deals with co-ownership of patent applications and patents. The 1964 Act contains the precedent which gives the controller the power to give directions to co-owners. It would seem correct to include such a power in this Bill. That power would (a) permit the Controller to give directions regarding the sale or lease of the patent applications or the patent or any interest therein, the grant of licence under the applicant or the patent, or the exercise of any right under section 80; (b) empower the controller to give directions in a situation where an applicant for, or owner of a patent fails to execute any instrument or to do any other thing required for carrying out any direction under this section within 14 days of being requested to do so, and (c) empower the controller to notify the other person registered as applicant or owner concerned in (a) above and notify the person in default in (b) above.

In the case of co-ownership, the rights of the trustees or the representatives of a deceased person would be protected from any directions given under this section. It would be my contention that any person should be entitled to request a search relative to a short term patent, provided the request was made in the prescribed manner and accompanied by the desired fee. However, section 66 does not appear to allow this, while section 89, which deals with search requests, does not spell out what the search would encompass and whether it would be broadly based enough to satisfy what I perceive to be a basic entitlement. I suggest that a further sub-section be added to section 66 to cater for this, with the wording clarifying the point that any person would be entitled to request the controller to carry out a search relating to a short term patent.

Yet, again, there is another anomaly in relation to the controller, this time in section 102 which provides that the controller may apply to the Attorney General for advice in any case where he has a doubt or a difficulty in the administration of any of the provisions of the Act. The corresponding section of the 1964 Act provides that the controller may apply to the Attorney General for directions. I have no strong opinion on either stipulation but it would be interesting to know why the Minister now sees fit to change the requirement and whether there have been cases to justify this change. If this provision has worked well since the enactment of the 1964 Act, why change it now? If it has not worked well, then maybe it needs a more radical change than that proposed by the Bill. In either case, I would welcome clarification from the Minister.

With regard to patent agents, the Minister will have discretion under the proposals to permit persons who are not registered as patent agents to act on behalf of others for the purpose of obtaining patents, subject to any conditions he may consider appropriate. There may be an element of restriction in this in so far as it confines the non-registered person to act only for the purpose of obtaining patents and not for the more broadly based section 105. The wording of this section would serve a more useful purpose if it was based on the provision in section 86 (2) of the 1964 Act, which says that "Provided that if in any circumstances he thinks it right so to do the Minister may authorise any person whom he considers suitable to act as a patent agent in a particular case at a particular time". This provision is less restrictive and gives the applicant a facility to which he may be entitled by right.

Section 108 (2) proposes to authorise the controller to remove from the register the name of a person who, in his opinion, is no longer eligible. I would see this as empowering the controller to make an entirely subjective judgment, something which should not form part of any legislative provisions. A person's eligibility to be included on the register should be based on objective parameters and any procedure to remove a person should be simiarly based on objective requirements, as a result of due inquiry by the controller and not on his opinion. This could, under certain circumstances, place the controller in an intolerable situation and divert him from the work which this Bill would primarily require him to do. The laying down of objective parameters would also bestow on the affected party the prior knowledge of the possibility of being removed from the register, something which I would regard as a basic right.

Section 114 (2) is yet another instance where the controller appears to be given power to make arbitrary decisions, which should rightly be the province of statutory instruments introduced by the Minister and being of the opinion that this particular section adds nothing to the Bill I feel it should be excluded.

It is proposed that transmission of documentation relating to the Bill be restricted to post only. This is stated in section 115, and it is to ignore the other methods of despatch, including courier, facsimiles, computer disc, and so on. I see no good reason not to have at least one of those methods cited in addition to the postal service, since they are equally secure. This provision should be changed as I have suggested.

In relation to the provisions regarding international conventions, it is my belief that Ireland should have an identity under the Patent Co-operation Treaty and should be designated as such in any application filed under the PCT rather than solely in the context of a European application. The effect of this on the workload of the Patent Office would be minimal, and we should endorse any efforts at broadening the application of the patent grant system internationally. This must be the ultimate aim of our attempts at harmonisation of our laws with those of our partners abroad.

There are some points in the transitional provisions on which I would like to comment: The Bill makes no provision for a Patent of Addition, unlike the 1964 Act, which provided for such an appendix and there are many of them which may be in force at the time of the enactment of this Bill. Under the terms of the Bill this would render them invalid, as it is now proposed that a Patent of Addition under the 1964 Act should be now treated as an application for an independent patent. This could place an unfair imposition on certain cases and I would therefore propose that existing Patents of Addition granted under the 1964 Act be allowed to continue for the life of the parent patent. Allied to this in the Bill is a requirement which places a retrospective imposition on an existing application which had elapsed at the time of the enactment of the Bill, but which would be the subject of restoration. This seems to be highly unfair and, in my opinion, should be deleted from the transitional provisions.

The question of retrospective imposition arises again under paragraph 7 (k) which would cause a grave injustice to many applicants and amounts to judgment in retrospect. The present law allows the controller a discretion as to the form of evidence of novelty which he is prepared to accept, and there is no apparent reason why this should be changed. To permit or even countenance such a change in this instance is tantamount to changing the rules in the middle of the game, and that is unfair play, whatever language or currency we use. I cannot quantify the number of cases to be affected by the proposal, but it may be substantial and would give rise to serious procedural problems on both sides of the fence. I urge the Minister to look again at the wording of the paragraph in question and ask him to reconsider it in the light of the problems it would cause if passed in its present form.

As an overall statement on the transitional provisions it seems to me that the Bill seeks to adjudicate on applications for patents and on patents using different parameters to those used under the 1964 Act under which those applications were made or those patents were granted. It would be unfair to examine such applications or grants retrospectively if the ground rules are to be changed.

I welcome this new look at an area of significant interest. The advances which our country has made in the area of technological development in recent years demands of us that we remain fully alert to the needs of industry and commerce from a legislative point of view. This is an important Bill and I am pleased to have been given the opportunity to offer my proposals on the provisions contained in it. I hope the Minister will give due consideration to the amendments we will be tabling to it.

Mr. Garland

The Green Party — Comhaontas Glas — have grave reservations about this Bill. The whole principle of patents is very dubious in that it gives businesses a competition-free 16 years to exploit the invention. This has enabled many large firms to rip off the consumer. The present law is bad enough but the Government proposes to extend the already extremely lengthy period of 16 years to 20 years as provided for in section 36. It is commonly said in favour of patents that they encourage either individual inventors or firms or, indeed, Departments to spend money on research on various products. This is undoubtedly so but we must ask ourselves whether all the products, or even the majority of products, produced as a result of these inventions benefit mankind. We have only to look at drugs such as thalidomide, pesticides such as DDT which were all patented. There are probably many patented drugs on the market today which will be withdrawn tomorrow. This is a much greyer area than people realise. We should not go overboard on this matter. There are many other examples of products which have done more harm than good to mankind.

I would dispute also the Minister's desire for uniformity. Uniformity throughout Europe in this area is not necessary or desirable. I can see no reason to extend the period from 16 years to 20 years. I am opposed to section 36 (4) which states:

The Minister may by order alter the period for which a patent shall remain in force....

Such order should require the sanction of Dáil Éireann. Another area with which I would have a problem is the issue of licences under section 68 in cases where a patentee has failed to exploit the patent. In such cases the grant of a patent should be revoked. Finally, on balance, I will be opposing this Bill.

Mr. Finucane

The current Patents Act has been in operation since 1964, 27 years, and it is timely and opportune that there should be a review. I welcome the review. I understand the controller was recommending an updating and a revising of the legislation since 1987. The Bill will have the effect of helping to streamline the affairs of the Patents Office. However, I warn that the introduction of the Bill in itself will not resolve the backlog of applications. Up to the end of 1990 the backlog had grown to almost 20,000 applications. Staffing levels in the Department will also have to be addressed. Currently there are more than 77 staff: I dread saying there are 77.5 but I understand that is due to job-sharing. That figure is less than what it was in 1971 when there was much less to do in the Department. We are all aware of the rapid advances that have taken place in technology and computerisation over the years. Therefore, it is regrettable that staffing is at this level. It will, therefore, be necessary to strengthen the manpower in the Department if we are serious about streamlining it.

It is interesting to note in 1990 they made a profit of over £1.7 million. In this day and age that is a commendable achievement and when one considers the difficulties under which that department labour. The work done by the present staff involves not alone patents but design works, trade marks and so on. I am pleased also to note that the Patents Office participated in discussions on the new regulations for the creation of a supplementary protection certificate for medicine products which was submitted by the Commission during the year. We are all aware that in the area of medicine ultra-caution is required. It is interesting to note also in 1990 that out of a total of 4,735 patents applied for, 734 were from Ireland. Indeed, I found this surprising because I did not realise there were that many. It is interesting to note that out of 7,516 trade mark applications, 620 were from Ireland and out of 546 designs 92 applications were from Ireland. We can see from that that, from the point of view of technology, we are quite efficient. It is understandable also that the vast bulk of the applications come from the USA. It is important to implement this legislation as Ireland was not a signatory of the European Patent Corporation which has its head office in Munich. If we pass this legislation and become a member of the European Patent Corporation we will simplify the process in the patent business. Notification will enable anybody seeking to protect the invention to protect it within a wide number of European countries, namely, those who have ratified the Convention, and a person will only have to make one application to Munich. This contrasts with the situation which prevailed in the past.

This is timely legislation. If the resources are provided for the Patents Office they will continue to produce a sound financial return to the State as heretofore.

Minister of State at the Department of Industry and Commerce (Mr. Leyden)

I appreciate the contributions made. Deputies have generally welcomed the provisions of this long awaited legislation.

Deputy Barry mentioned staffing in the Patents Office. The Government are considering establishing an independent office which would ease this major difficulty caused by the heavy workload in that office. The backlog of cases means unrealised revenue but it is not as high as the figure suggested by Deputy Barry and others. Any area of unrealised revenue which would give opportunities for additional employment must be acted on by the Government. This Bill is the forerunner to the general rationalisation of the Patents Office, a very important office.

In relation to the submission made by the patent agents we are ready to put down Committee Stage amendments to improve things in that regard. In relation to the Community Patent Convention, the Bill does not deal with the ratification of the Convention as there is a constitutional problem involved. This Bill enables us to ratify the European Patent Convention.

In relation to short term patents, we will amend the Bill to avoid patents being granted for unworthy inventions. In relation to generic companies affected by the increase from 16 to 20 years, this area is dealt with adequately in paragraph 4 of the First Schedule:

In the case of a patent the term of which has been extended under paragraph 2 (1) or 3 (1) of this Schedule, proceedings for infringement of such a patent may not be instituted against a person who, during the final 2 years of the term of that patent, as extended under those provisions, makes only such preparations (other than the importation or placing on the market of a product protected by such patent) as would enable that person to put the invention into effect commercially after the term of the patent expires.

In relation to drugs there is a long period of evaluation and examination by Government Departments.

We will deal with the effect of the EC draft supplementary certificate on Committee Stage. A referendum is necessary to enable us to ratify the Community Patent Convention. This opinion is based on close scrutiny by the legal experts. We could not include the Convention in this Bill without first having a constitutional amendment, and that will be done in due course. In relation to trademarks protection, we propose to draft a new Bill on trademarks very shortly. A question was raised about the interpretation of the words "indigenous Irish companies". These refer to companies which are wholly Irish owned but in the case of smaller pharmaceutical companies it is more appropriate to refer to them as generic companies.

Deputy Rabbitte dealt with the moral issues and they are covered in the section dealing with the use of inventions for the service of the State.

In relation to the EC Directive on the patenting of new genes, the Bill does not deal with this Directive which has not been adopted yet. We are conscious of the aspects of this to which Deputy Rabbitte referred as being undesirable and we are making our arguments very clear in the debate on the relevant directive.

On most of the points raised by Deputy Lowry we have secured a submission from the patent agents and we are examining it.

This is a very significant Bill. I agree that it has taken far too long for it to come before this House, but I am pleased to be in a position to bring it before this House today with the support from all sides for its speedy passage. There is a backlog of approximately 20,000 patents applications and this backlog would continue to grow if certain measures are not taken. The current intake of applications is about 4,700 per year while output is only about 1,000 per year. If measures are not taken to reduce the backlog, and if the volume of applications per annum continues at the present level, it would take 12 years to grant applications for patents made now. That would be totally unacceptable and that is why this Government have taken action. Bearing in mind the necessity to take legal advice from the Attorney General's Office and the time it takes to draft a Bill, it was imperative to introduce this legislation. This is a good Bill, an extremely important Bill with major consequences for the future of Irish industry. I appreciate the indications of support for the legislation from Members of the House. I hope we can process the Bill through Committee Stage as quickly as possible. We have had an opportunity to closely examine the requirements and we are satisfied with the content of the Bill. However, I am always interested to receive submissions and amendments from all sides of the House and I will carefully consider such amendments.

I have great pleasure in commending this Bill to the House.

Acting Chairman (Mr. M. Barrett)

Is that motion agreed?

Mr. Garland

It is opposed by me.

Question put and declared carried.

Acting Chairman

When is it proposed to take Committee Stage?

Mr. Leyden

Next Wednesday, subject to the agreement of the Whips.

Committee Stage ordered for Wednesday, 13 November 1991.