Dáil Éireann díospóireacht -
Tuesday, 20 Jul 1926

Vol. 16 No. 21

PATENTS, TRADE MARKS AND DESIGNS (VALIDATION) BILL, 1926—FIRST STAGE.

MINISTER for INDUSTRY and COMMERCE (Mr. McGilligan)

I ask leave to introduce a Bill entitled the Patents Trade Marks and Designs (Validation) Bill, 1926, of which the long title is "An Act to declare and establish the validity in Saorstát Eireann of certain British patents and the British registration of certain trade marks and designs." The important section is Section 2, which, as it is short, I propose to read:—

"Every patent granted by the Patent Office in London, whether before or after the passing of this Act, and bearing date as of any day prior to the 7th day of December, 1921, shall have and be deemed always to have had the same force and effect in Saorstát Eireann as it has for the time being in Great Britain whether such force and effect are derived from or dependent on the original grant of the patent or any renewal thereof or any payment of fees, and whether such renewal or payment was made before or after the passing of this Act."

There are other sections which do exactly the same thing in regard to trade marks and designs as that section sets out to do in regard to patents. Deputies must have noticed in a case that came before the court recently, a judge of the High Court decided that patents granted before 7th December, 1921, ceased by the setting up of the Free State to have any further force or effect in the Free State. An appeal has been entered against that decision. The matter is, therefore, sub judice, but if the decision be established as the rule of law which is to operate in regard to patents then it is the view of the Executive Council that there should be legislation to declare the validity of such patents as from the 7th December, 1921, and to declare that with retrospective effect. This is the proposed legislation.

Mr. JOHNSON

Is it in order or is it decent to take the First Stage of a Bill of this kind which obviously is not intended to be passed within the next few months, but seems to me to be calculated to prejudice the decision of the court? I do not know what the Minister's intentions are, but to introduce a motion of this kind, giving the Minister's views as to what the law in the future ought to be just at a time when a proposal is before the court and an appeal is being lodged, seems to be deliberately designed to prejudice the court, if possible.

Major COOPER

I take it this is not the new Patents Bill.

Mr. JOHNSON

The extra new one!

Major COOPER

If it is I should like to point out that there is a grave omission, namely, the question of copyright. That may be challenged at any time in the same way as patents. I think if a Bill is being introduced to deal with the situation it should include copyrights as well as patents.

Mr. T. O'CONNELL

Would the Minister say whether this Bill will be necessary, assuming that the decision of the High Court will be reversed in the Supreme Court?

Mr. O'HIGGINS

No.

Mr. JOHNSON

Then in that case we should not allow it to pass its First Reading. Here the Minister has now told us that this Bill is only of any effect if a decision of the Supreme Court happens to confirm the decision of a judge of the High Court. If it happens to do so-and-so, then the Minister is going to carry on certain legislative proposals. That surely is a unique method of procedure in legislation. It is what is called in other places "waving the flag," telling the courts what we would like as legislation.

Mr. O'HIGGINS

No.

Mr. JOHNSON

I think it is a most objectionable procedure.

Mr. O'HIGGINS

The Deputy must not take us as accepting his view, despite the emphasis with which he states it. This Bill is based on the existing law as it is found. If it is found to be otherwise, the Minister states that the Bill will not then be necessary. Permission is asked to have printed and circulated a Bill which is framed in recognition of the law as it has been found to be. This talk of waving a flag or attempting to influence the courts or to dictate to them is entirely illusory. The courts have nothing to do with Bills. They have quite a lot to do with Acts. In the event of the law being found otherwise than what it has been found to be and which we must take it as being, unless and until a contrary decision is given, then it is a perfectly proper thing to introduce legislation to deal with that situation. If it does happen that a contrary decision is given by a higher court the Bill will be then withdrawn, but there is no attempt to influence or dictate to the court. In fact the very introduction of this Bill shows that we accept the law to be what a court of the State has found, and in the event of its being found to be otherwise, the Bill would be withdrawn. For the moment we must take it that the law is what it has been found to be in the court.

Mr. T. O'CONNELL

Would it not be more obvious and a more reasonable procedure to await a decision, especially in view of the fact that that decision is likely to be taken before this Bill is to be proceeded with further?

Mr. O'HIGGINS

No. I disagree. The Government must deal with the business of the country in as accurate a perspective and with as just a sense of proportion as it can arrive at, dealing with matters with its conception of their urgency. It is necessary to have an eye to the business the Dáil will have to deal with when it reassembles in November. To that end certain First Readings are taken here so that when the Dáil reassembles there will be Second Readings to deal with, and the work of the Session will commence. This is considered an urgent Bill. If the law in November is as it has been found to be, then it is necessary to proceed with all due expedition with this Bill.

Mr. ESMONDE

What is the procedure with regard to the future stages? Only the First Stage will be taken now.

Mr. O'HIGGINS

Yes, and the Second Stage in November.

Mr. JOHNSON

I intend to oppose this motion, not on account of the merits, because I do not know what the merits are, but on account of the statement made by the two Ministers. It has been well-known to Ministers for many months that the state of the law was as it has now been stated by the judge. It has been known, I say, in the Departments.

Mr. O'HIGGINS

It has not.

Mr. JOHNSON

It has been believed in the Departments and by Ministers.

Mr. O'HIGGINS

No. It has not. Where does the Deputy get his information?

Mr. JOHNSON

I am making the assertion; that is all.

Mr. O'HIGGINS

We are making the contradiction.

Mr. JOHNSON

I admit that the Ministers were not aware of the fact: they are in the minority, I think. It has been generally public property that the law was as it is now stated by Judge Meredith. Now the Ministers have awakened suddenly to the fact, because of that decision and because of the outcry across the water. There has been no outcry in Ireland in defence of Irish interests which have necessitated the introduction of a Bill of this kind. There has been an outcry across the water because certain British and other interests seemed to be involved and consequently on the last day, just by accident on the last day—we might have finished our work a week ago——

Mr. O'HIGGINS

It may not be the last day.

Mr. JOHNSON

—we have this Bill proposed to us. No advantage except to allay the suspicions and fears on the other side of the water will accrue from the First Reading. No advantage in time will accrue—nothing but that allaying of feeling by a declaration on the part of the Ministers that this is their view of what the law ought to be.

It is intended to make the Bill retrospective. I want to find out whether they have any reciprocal proposals from the British side with regard to patents. For instance, under the present Patent Law, if I am not misinformed, no patent need be valid in the Free State unless steps are being taken by the patentees to manufacture those patented articles in the Free State. Is that being put into operation? It has not been, and I say that is the quid pro quo, the fact that it has not been enforced. Those British patentees have not suffered anything. We have heard of this one case. They may have suffered something, I do not know, but in general British patentees have not lost anything. Their patents have not been infringed and there has been practically no loss. Suppose we had enforced our right that no patent would be valid in the Free State unless those articles patented were manufactured in the Free State, which is the present existing law, those patentees would be very much worse off than they are, even though this present state of invalidity prevails. I say we ought not to make those patents valid unless we are prepared to enforce, in as many cases as possible, the requirements of the existing law that those patented articles should be manufactured in the Free State. I say the reasons given for the introduction of this measure, even in the First Stage, are not sufficient to warrant the permission, and it is too much like a response to the cries in the British Press. I think we ought gently to waive them aside and say, “You must await our pleasure and the decision of the court to see whether there is any need, even from their point of view, or not.”

Major COOPER

Deputy Johnson has very rightly dealt with this question from the point of view of Irish interests. I have only a few words to say on this matter. To my mind honesty is an Irish interest, a reputation for fair dealing is an Irish interest, and these are assets that we cannot afford to throw away to gratify Deputy Johnson's sense of national pride.

Mr. WILSON

What about the Lane pictures?

Major COOPER

I am prepared to discuss that at considerable length, but not on this Bill. I am waiting for Deputy Wilson's motion, when I shall be very glad to discuss it. I think I am the only member in the Dáil who has seen the Lane pictures hanging as they are now, and who has compared them with the miserable way in which we hung them in Harcourt Street. To return to this Bill, a patent is the outcome of a man's brain and a man's enterprise, possibly not the enterprise of the inventor, but the enterprise of the man who saw it was a good thing and was prepared to invest his money in it. It is property, if anything is property, and that we should take advantage of our new status to confiscate the property of individuals who have invested their money, and used their brains in order to develop industries, and in order to increase the amenities of life, would, to my mind, be a wrong and a criminal thing to do.

Mr. WALSH

Is the Deputy aware that a number of these patents have recently been stolen from another country?

Major COOPER

The Deputy is not an authority on theft, but he is quite willing to be instructed. I am not aware of it. If there is any case of that kind let it be made before the court, as to whether a patent was stolen or not, but to say that our new status gave us the right to abrogate all patents and rights whatsoever, taken out before June, 1921—I do not know if the Dáil is prepared to stand over that. If they do, Deputies will find themselves in an exceptional State indeed, a State outside all the common bonds of international obligations. I venture to think that the Ministry did wisely in at once giving notice that they were prepared to deal with this matter, not on a narrow or sectional basis, but on an international basis, and that as we, too, use the patents of other countries we will treat them fairly, and we expect that they in return will treat us fairly. I should be sorry to think that Deputy Johnson should carry a division against this Bill, because it would mean that we would go into the autumn, when we intend to sell the bulk of our produce, with a reputation that would not be an enviable one.

Mr. ESMONDE

In connection with what Deputy Cooper has said, I should like to ask for the Minister's confirmation; whether it is a fact that we are bound by certain international engagements with regard to patents and copyrights. As far as I remember, there are certain conventions on this matter which we have inherited. If that is the case, obviously the legislation now proposed is simply carrying into effect international obligations which we already had.

Mr. McGILLIGAN

What Deputy Esmonde has said is quite true. There is no one in this House who stands up more frequently to uphold the dignity of the courts than Deputy Johnson. There is no one in this House who endeavours to hold up the judges to more public scorn and contempt than the same Deputy. Imagine the idea of a judge being asked to decide on the facts whether a certain state of law exists, and going to be swayed by other influences. If that is the idea of the Deputy I would rather leave him alone in his view of the judiciary. The Deputy has gone farther and talked about a common point of view, about patents in this country, and that Departments have awakened to things that Deputy Johnson, as advised by the public, knew long ago. Luckily he has given us an example of how he has been advised. Under the existing patent laws the Deputy says articles must be manufactured here.

Mr. JOHNSON

I did not say anything of the kind.

Mr. McGILLIGAN

The Deputy has asked why we did not enforce certain rights and certain obligations with regard to patents as a quid pro quo, as a recommendation for their validity here. Yet, the Deputy holds with the recent decision of Judge Meredith that there is no patent law in this country at all. I wonder is this an example of what the public knows about patent law, and has advised the Deputy, so that he in his wisdom must give it out here? The Deputy talked about waving flags. Again no man can bristle with more righteous indignation at what he calls malpractices than the same Deputy. He has hoisted to-day what must be considered the flag of the pirate, and that is what he wants the Dáil to uphold by his request to refuse a First Reading to this Bill.

AN LEAS-CHEANN COMHAIRLE

took the Chair.

Question put.

The Dáil divided: Tá, 46; Níl, 9.

Tá

• Pádraig Baxter.
• Earnán de Blaghd.
• Seoirse de Bhulbh.
• Próinsias Bulfin.
• Séamus de Burca.
• John Conlan.
• Bryan R. Cooper.
• Sir James Craig.
• Máighréad Ní Choileain Bean Uí
• Dhrisceóil.
• Osmond Grattan Esmonde.
• Seán de Faoite.
• Pádraig Mag Ualghairg.
• James Sproule Myles.
• John T. Nolan.
• Peadar O hAodha.
• Mícheál O hAonghusa.
• Ailfrid O Broin.
• Seán O Bruadair.
• Parthalán O Conchubhair.
• Máirtín O Conalláin.
• Séamus O Dóláin.
• Tadhg O Donnabháin.
• Mícheál O Dubhghaill.
• John Good.
• William Hewat.
• Patrick Leonard.
• Donnchadh Mac Con Uladh.
• Seán MacCurtain.
• Maolmhuire Mac Eochadha.
• Pádraig Mac Fadáin.
• Patrick McGilligan.
• Risteárd Mac Liam.
• Eoin Mac Néill.
• Seoirse Mac Niocaill.
• Liam Mac Sioghaird.
• Peadar O Dubhghaill.
• Donnchadh O Guaire.
• Mícheál O hIfearnáin.
• Risteárd O Maolchatha.
• Séamus O Murchadha.
• Pádraig O hOgáin (Luimneach).
• Seán O Súilleabháin.
• Caoimhghín O hUigín.
• Seán Príomhdhall.
• Liam Thrift.
• Nicholas Wall.

Níl

• Seán Buitléir.
• Séamus Eabhróid.
• Tomás Mac Eoin.
• Tomás de Nógla.
• Wm. Norton.
• Tomás O Conaill.
• Aodh O Cúlacháin.
• Seán O Laidhin.
• Domhnall O Muirgheasa.

Tellers:—Tá: Deputies Dolan and Sears. Níl: Deputies Morrissey and T. O'Connell.

Motion declared carried. Second Stage fixed for Tuesday, 16th November.