I have made my point on this amendment. The Minister will not accept it unless he has had a change of mind during the past week.
Patents Bill, 1991: Committee Stage (Resumed).
Debate resumed on amendment No. 59:
In page 44, between lines 2 and 3, to insert the following subsections:
"(1) Where two or more persons are entered in the register as applicants for or proprietors of a patent, the Controller may, upon application made to him in the prescribed manner by any of those persons, give such direction in accordance with the application as to the sale or lease of the patent application or the patent or any interest therein, the grant of licences under the patent application or patent, or the exercise of any right under section 80 in relation thereto, as he thinks fit.
(2) If any person who is entered in the register as an applicant for or proprietor of the patent fails to execute any instrument or to do any other thing required for the carrying out of any direction given under this section within fourteen days after being requested in writing so to do by any of the other persons so registered, the Controller may, upon application made to him in the prescribed manner by any such other person, give directions empowering any person to execute that instrument or to do that thing in the name and on behalf of the person in default.
(3) Where an application has been made under this section, the Controller shall notify—
(a) in the case of an application under section (1), the other person or persons registered as applicant for or proprietor of the patent concerned;
(b) in the case of an application under subsection (2), the person in default;
and shall thereafter determine the question.
(4) No direction shall be given under this section so as to affect the mutual rights or obligations of trustees or the personal representatives of a deceased person, or their rights or obligations as such.".
—(Deputy Barry).
Deputy Barry has asked that four new subsections be added to section 80. These impose additional duties on the controller. The primary task of the controller is to grant patents as quickly and efficiently as possible. The more peripheral duties are imposed on the controller, the less will he be able to perform his primary functions. Already the controller has many duties under the Bill other than the granting of patients. He has to deal with restoration proceedings, replication proceedings and patent licensing problems, all of which are time consuming. It is not appropriate that the controller should be overloaded with further peripheral time-consuming duties such as envisaged in the amendment at a time when the patent examination backlog is so large and the available staff are curtailed. I cannot accept the amendment, which would deflect the controller in the performance of his main duties.
In any event I am informed that the duties in question, being of a litigious character, are appropriate to a court and I do not accept that the controller should be burdened with legal squabbles which should appropriately be considered by a court. I received no representations from industry or from inventors to include in the Bill the sorts of provisions envisaged in Deputy Barry's amendment.
I am disappointed with the Minister's response. What I am seeking is already part of the 1964 Act and it was included in a Bill circulated nearly ten years ago. I recognise that there is a huge backlog of patents needing attention and that there has been a curtailment of staff. Several Deputies made the point on Second Stage that with the lifting of the Government embargo on staff and proper management the backlog could quickly be cleared and the Patents Office could become a profit-oriented body. At present it is struggling.
I am concerned that people should not unnecessarily go to court. There is delay and expense involved and bad feelings are engendered. I should prefer to see the Patents Office clear up these matters rather than the courts.
Amendment, by leave, withdrawn.
Question proposed: "That section 80 stand part of the Bill."
Subsection (1) states:
Where a patent is applied for by, or is granted to, two or more persons, each of those persons shall, unless an agreement to the contrary is in force, be entitled to an equal undivided share in the patent application or patent, as the case may be.
I wonder if that is adequate. It leaves the position somewhat uncertain because an equal undivided share can fall into either of two categories. It can be what is known as a joint holding or a holding in common. Either of these would fall into the category of an equal undivided share but there is a big difference between the two. In the case of a joint holding it would fall on the death of one of the joint holders to the survivor, whereas in the case of the holding being in common it would not. That half share would go to the next of kin of the person who died. Which is it intended that this should be?
Let us take the case of A and B who apply together for a patent and are granted it. Under section 80 as it stands they would each be entitled to an equal undivided half share in that patent. If A dies, what happens to his half share? If the undivided half share comes into the category known as a joint holding, it goes to the survivor. A dies and B takes the lot. On the other hand, if it is the type of undivided holding that comes into the category of being in common, then A's half does not go to B. B retains the half he already has and A's half goes to A's next of kin or to whomever it is left in his will or would go to on his intestacy. The section leaves that matter open and in doubt. I suggest that the holding ought to be in common and that the right of survivorship should not apply. It would be prudent to spell that out in the section by inserting the words "in common" after the words "equal undivided share". If the intent is that it should go to the survivor, then the word "joint" should be inserted before the word "share". I do not think survivorship would be appropriate in a patent and I would welcome the Minister's comments. In the interests of clarity we should specify which it might be.
This section regulates the rights of co-owners with respect to each other. Under subsection (1), co-owners are entitled to an equal undivided share in a patent application or a patent. Under subsection (2), each can use the invention without reference to the others. Under subsection (3), one co-owner may not assign or license rights under a patent or an application without the consent of the others. Under subsection (4), anyone supplying a co-owner with the means of putting an invention into effect will not infringe the rights of the others. Under subsection (5), anyone acquiring patented products from one co-owner cannot be interfered with by the others. Under subsection (6), the rights and obligations of trustees or personal representatives are unaffected.
I accept the reasonable argument put forward by Deputy Taylor in regard to how the rights of the personal representative of one of the co-owners could be affected. In the interests of clarity it is appropriate that we re-examine this issue. I think that is the Deputy's concern.
Pretty much so.
In other words, the Deputy is worried that the personal representatives, spouse or family of an inventor who dies would not benefit from his invention. He believes that their rights are not clearly spelt out in the legislation. Subject to advice from the Attorney General and my officials, I agree with the point made by the Deputy. It is very important that we ensure the rights of a successor, spouse or family of the co-owner of a patent are protected under this legislation. The Deputy has argued that these rights are not spelt out clearly in the Bill. I will have the matter examined by the Attorney General's office to ensure that these rights are clearly spelt out in this section. The Deputy may wish to put down an amendment in this respect on Report Stage. If he does so, I will have it considered.
Broadly speaking, the Minister's response is satisfactory. However, I should like to clarify the point further. As I said, there are two categories of ownership when a patent is vested in two people — one being "joint" when the rule of survivorship applies and the other being "in common" when it does not. In the "in common" case the patent goes to the next of kin and personal representatives of the person who dies. Usually that is a matter of intent. Two parties who wish to register a patent or property between them can do it anyway they like. That is a matter for them to decide. If they decide they want survivorship to apply they can do that. Similarly, if they want "in common" to apply they can do that.
Section 80 (1) provides that unless there is an agreement to the contrary in force they are entitled to an equal undivided share. However, it does not specify whether this should be "in common" or "joint". It is implicit from what the Minister said that it is intended the "in common" type situation should apply. In other words, the right of survivorship should not apply. I agree with him. That would be the correct interpretation. If that is what he is saying, I agree with him. I do not think the right of survivorship would be appropriate for the joint ownership of a patent unless the parties wanted it to operate that way. It could be that two people who take out a patent jointly might wish, in the event of the death of one of them, the ownership of the patent to fall to the other and that the family of the person who dies should not be involved in the ownership of the transaction at all. If they want ownership to fall directly to the surviving owner there is nothing to stop them so declaring. They would have to do this specifically. That is what the words "unless an agreement to the contrary is in force" in subsection (1) means. If they want, they can have an agreement to the contrary.
Assuming that there is no agreement to the contrary, we should clarify the matter. All the Minister would have to do to put the matter beyond yes or nay would be to add in the words "in common" after the words "undivided share". This would clarify that the survivorship position would not apply and that in the event of one of the patent holders dying his share would, under his will or his intestacy, go to his personal representatives or next of kin.
I thank the Deputy for further clarifying the point. Section 80 (6) provides that; "nothing in subsections (1) and (2) shall effect the mutual rights or obligations of trustees or of the personal representatives of a deceased person, or their rights or obligations as such".
That begs the question——
I agree with the Deputy. In view of the points raised by him it would be appropriate to have these rights clearly stated in the legislation so that there would be no ambiguity. This could have major repercussions for the rights of the spouse or family of the deceased owner of a patent. It could be a very valuable asset and there could be enormous legal implications for a family. In those circumstances I am disposed to ensuring that there are no doubts in this respect. This provision is taken from the 1926 Act and we should avail of the opportunity to update it so that the rights of the personal represntatives of a deceased owner of a patent are spelt out clearly. If Deputy Taylor puts down an amendment for Report Stage on what he regards as appropriate we will have the opportunity to tease out these points in detail. This is the purpose of a Committee Stage debate and I am very anxious to get the views of Deputies on the legislation.
In that spirit, is Deputy Taylor happy?
I am quite happy.
Question put and agreed to.
Sections 81 to 91, inclusive, agreed to.
SECTION 92.
I move amendment No. 60:
In page 51, subsection (3), line 11, to delete "his" and substitute "this".
This amendment simply corrects a typing error in the Bill by substituting the word "this" for "his" in line 11 of subsection 3.
Amendment agreed to.
Section No. 92, as amended, agreed to.
SECTION 93. Question proposed: "That section 93 stand part of the Bill".
I should like the Minister to read his speaking notes on this section.
This section deals with the right of audience before the controller. Any party to a proceeding before the controller can appear in person or be represented by counsel, solicitor, registered patent agent or any other person being a person approved by the Minister under section 106 (3) to act on behalf of others for the purpose of obtaining patents.
Section 106 (3) provides that: "The Minister may, at his discretion, permit any person not registered as aforesaid, upon application made by that person, to act on behalf of others for the purpose of obtaining patents ...". I am concerned about the question of right of audience before the controller. Why should there be restrictions on this? Why should any person not be permitted to go before the controller and argue the case other than a barrister, solicitor, patent agent or person for whom the Minister gives permission? Why should such a right be vested in the Minister? Why should a person who wants to appear before the controller have to make an application to the Minister? Is the Minister going to set up a system or procedure to examine people and give them a licence to appear before the controller? This is unnecessarily restrictive.
We are not talking here about a court; this is not a court of law, it is the controller of the Patents Office. There are plenty of solid business men and business women around who know their occupation and who are experienced in these matters, who may wish to take a brief and go on behalf of an applicant or a patent owner and argue out some relevant matter before the controller. What on earth is wrong with that? The modern trend in tribunals and non-court hearings is to open up these things to people who feel fit and qualified enough themselves to do it. That is the best test of the issue, not whether they have a licence. How is the Minister to know or to determine whether a person is suitable to go before the Controller of Patents and argue a point? What criteria will the Minister apply? How could such a position be wished for by the Minister? Why should he seek to provide that power for himself in section 106 (3) which states:
The Minister may, at his discretion, permit any person not registered as aforesaid ... to act on behalf of others....
What will he do? Will he conduct an examination and ask questions before deciding whether he can go in? If the person is a patent applicant or has a matter of contention pending before the controller under this Act and if he wants to bring another person with him or her to argue their case or make their representations to the Controller of Patents, what could possibly be wrong with that? This is a very backward looking measure confining it to elitist categories — barristers, solicitors, patent agents or this strange animal, he or she whom the Minister licences to go in. I do not think that is necessary or appropriate. It is a matter for the person going before the Controller of Patents to decide whom they want to take with them. If I am a patent applicant I might value Deputy Barry's expertise in a particular field and want him to come and make the representations for me. What is wrong with that? Why should I not be able to take him with me if that is what I want to do. If he is an expert on a certain subject from a patent point of view, does he have to go cap in hand to the Minister and ask for a licence to be allowed go before the Controller of Patents? I agree that the Controller of Patents is a very important person but he does not have that aura whereby a person who wishes to make representations to him should undergo some examination by the Minister.
The Leas-Cheann Comhairle is punning.
I was talking about Deputy Barry and the "expert teas". Sorry for the interruption.
I did not hear that. It makes the point. You are clearly departing from your usual impartial position and supporting the argument I am making. Admittedly I have not tabled an amendment on this subject but I would ask the Minister to have a look at this matter on Report Stage to see whether this is really necessary and whether we are obligated to do this. I do not think the EC would mind whether we include this provision. Hearings before the Controller of Patents are very informal, they are businesslike. I do not think any casual person who does not know anything about the subject is likely to have the temerity to present themselves and start making representations on matters before the Controller of Patents. At the end of the day it will only be people who know something about the subject who will seek to go before the controller. I do not think, in this day and age, we should put in these artificial restrictions. I do not think we need them.
First of all, 99 per cent of all applications to the Patents Office comes through patent agents. There are about six patent agents operating in Ireland at present and they are performing a very important function. We have allowed a situation here which the patent agents may not be very happy about but we felt it necessary to remove restrictions. If, for example, there was an application on the engineering or technological side, one would use a person qualified in those fields to put forward an application to the Patents Office. However, we want to be reasonable about this as it is a serious business. It is right and proper that my Department would have a position in relation to suitable persons putting forward their application. We are leaving it open but we do not want to have persons who would not have expertise in a particular field and who would be doing a disservice to the patent applicant themselves.
That is their affair.
It is also our affair, and I believe it would be right to ensure that everything is in order. It is a very simple process and not a cumbersome registration system in regard to having suitable persons. We have to have regard to the seriousness of this issue and we have to ensure that a patent licensee or applicant would use the services of a person who would be in a position to give the proper advice and submit a proper application to the Patents Office. In fairness we are ensuring that this would not be a restrictive practice by expanding it. Deputy Taylor would have a case if we had said that all applications have to come through patent agents. That would be a reasonable point of view. The patent agents representative would argue very strongly——
It would be a most unreasonable view to take.
The patent agents may say it would be a very reasonable argument, and I am sure that people in the legal profession would want to ensure that solicitors would be required to make particular cases in registrations and going before courts——
I do not support that and it is being diffused.
And rightly so. Patent agents are responsible for 99 per cent of all applications going before the Patent Office. We have a major backlog of 20,000 applications which is a very difficult task and we are taking action to resolve it. This Bill will certainly be of assistance in this regard. We have made it very broad by saying that any party may be represented by counsel, solicitor, a registered patent agent or any other person approved by the Minister under the provisions of section 106 (3) to act on behalf of others for the purpose of obtaining patents. If you are applying for a patent in relation to a pharmaceutical product it would be appropriate to have a chemist or a person with a Bachelor of Science degree or who had experience in that industry to assist in putting forward your application. The Minister and the Department will be reasonable in this regard but we do not want the use of unqualified persons who would not be able to assist. I am not in a position to change this provision because it is an admirably reasonable section. In practice I believe it will be effective and in the circumstances I will not leave it open at this stage.
The more I think about this subject the more hardened I become in my view that this is entirely wrong and against the modern trend. The modern trend in this issue is derestrictive. I thought the Minister for Industry and Commerce, Deputy O'Malley, was very hot on this subject. He will be bringing in the Solicitors Bill — and I have to declare my interest, as a solicitor, in this — under which, and rightly so, functions which until now were reserved to their exclusive jurisdiction are now being passed off to what many of my colleagues would think are unqualified institutions. Building societies would be able to do conveyancing. Banks would be able to do probate. Things like that which were formerly within the sole preserve of solicitors could be diversified. That is a welcome trend. Here we find a completely unnecessary restrictive practice being brought in on this issue. Why? It does not add up. In many tribunals, for example, the Employment Appeals Tribunal, the person who is the litigant before that tribunal, which also requires a degree of expertise, can bring in any person to assist him in making a claim even if he is not a solicitor, barrister or trade union official. That tribunal works well. Only people who know something about it in fact go in there, but that is the modern trend.
Many people have an expertise in the various fields of patent law and patent subjects. Many people would know far more about it than 98 per cent of the solicitors who are licensed to practice here. My colleagues would not take it amiss if I said that 98 per cent of them do not have or have never had involvement with patent law in their practices. The number of solicitors who would have expertise in patent law would be extremely small, yet in this section the Minister gives the right to all solicitors to act on behalf of an applicant before the controller of patents, while a person with far more knowledge and expertise of patent law than a solicitor is barred from going in unless he appeals to the Minister for permission. That raises a very interesting question. How is the Minister to decide such an application? How is the Minister to conduct an investigation to find out whether or not a person is an appropriate person to be allowed come before the august personage of the controller of patents to argue for or against a patent, a variation or whatever? Will the Minister run into all sorts of difficulties and have his decisions questioned if lone person is accepted and another is not?
Let us be practical about this. We know full well that nobody in his right mind will take it upon himself to go before the Controller of Patents unless he knows the subject and is prepared to argue if from a basic knowledge of the patent or industrial property legislation. Why should it be considered necessary to introduce a restrictive provision like this giving a licensing function to the Minister on this question? It is a very unusual and novel concept to introduce a provision that one must seek permission of the Minister to allow a person to come before the tribunal on behalf of somebody. Will the Minister examine the person and his CV and ask questions? How is the Minister qualified to know whether or not a person has expertise? With all due respects to the Minister, there are plenty of people who know more about the intricacies of patent law than the Minister. Is the Minister qualified to decide whether or not a person is qualified to argue a case before the controller of patents? This provision is restrictive and it runs contrary to everything the Minister said he stood for.
Confining the right of audience before the Controller of Patents to barristers, solicitors, patent agents and people to whom the Minister has given permission is completley uncalled for. It should be left open to the patent applicant to decide who he wants to represent him. If the patent applicant is as careless or as thoughtless of the prospects for his patent that he would chose to bring in a person who knows nothing about the subject or who would not be able to do justice to the application, let it be on his own head. As the Minister said, patents are very important and valuable products. In many cases they are worth large sums of money. We can quite safely leave to the knowledge and discretion of any person who wants to make a patent application, the choice of person to go with him. It does not behove the Minister or anyone in this House to dictate who a person can bring in with him to argue the case. That should be the patentee's decision. He knows the score and who the experts are. He might want to bring in an expert from abroad and that should be his decision. The patentee should be fully entitled to bring in whoever he wants without having to go through the indignity of applying to the Minister for permission. The person best qualified to decide who should argue the case for him before the patent controller is the applicant who will know the position better than anybody else. I feel strongly about this. The Minister is introducing an unnecessarily restrictive provision here and I would ask him to reconsider it.
Deputy Taylor suggested that we should be practical about this. We have to be practical and that applies also to Deputy Taylor. I am practical about it. The Deputy referred to the possible knowledge of a Minister and his qualification to scrutinise a suitable person. Under section 106, dealing with the registration of patent agents, the procedure is managed by a board appointed by the Minister of which the controller is chairman. That would be an appropriate board to assess the qualifications of any applicant to represent the patentee. I would use this board to assess the suitability of a person. The Deputy is making a mountain out of a molehill because 99 per cent of all applicants want to get their patents at the patents office.
The six patent agents have the expertise and knowledge to ensure that an inventor will get his invention dealt with expeditiously. In this legislation we are allowing a person to select another suitably qualified person to assist in putting an application through the patents office. This is a step forward. The Deputy referred to views expressed by Deputy O'Malley with regard to liberalisation in this area to allow for fair competition. That is certainly embodied in this legislation. The Deputy would have a very good case if we did not allow this flexibility in the legislation. From the point of view of efficiency and effectiveness we could easily have provided that applicants for patents must go through patent agents.
I would recommend an inventor to go through a patent agent to ensure that the proper procedures were followed. Patent agents are experts in this field so going through them would avoid the possibility of putting in an application that was not in order and delaying the whole procedure. People would be well advised to avail of the services of the experts in that regard. However, in the interest of fair competition and to allow a patentee to avail of the services of a specialist to assist with an application he may put in the application without any regard to such an agent but will have the option to use some other expert.
I note the points made by Deputy Taylor. I have already said that if this Bill could be amended to allow a change I would have no hesitation whatsoever in amending it. However, it is such an important event for a patentee to apply for a patent that we must ensure he has the best possible advice and assistance. It is only reasonable that the Department should have a say as to the suitability of persons. It will be appreciated that the Minister would not personally investigate every application before issuing approval. In this particular procedure — and Deputy Barry would know this — the Minister would be the person who would issue the actual approval——
How would I know that?
Deputy Barry has had vast experience in various Departments. He will appreciate that the file would come to the Minister and if the Minister felt he required additional assistance he would look for that. We have a procedure whereby a board is appointed by the Minister, of which the controller is the chairman, to give advice on particular applications.
The number of cases where this would arise will probably be so minute that I feel we are raising hares on this issue. I do not think this is a matter of the greatest concern but if Deputy Taylor feels strongly about this he can put down an amendment on Report Stage when it can be discussed further.
I do not want to put down an amendment. I am opposed to the section.
I have no intention of changing my view in this regard. I am quite satisfied about the section.
It appears we have wasted some time on a matter which is not of great consequence. The point made by the Minister is correct. Of the 20,000 applicants for patents I would say that 19,900 of them will go through a patent agent. If the other 100 want to bring in some other expertise they should be allowed do so.
Having said that, if a person applies to the Minister's office to bring in some person considered to be an expert, I cannot visualise any circumstances where that would be refused. That is the reality and I do not think this issue is really worth the time we are putting into it, with due respect to the Minister and the Deputy.
We have to bear in mind that we are not talking about patent applications only. I agree that in the overwhelming majority of cases an application for a patent would go through a patent agent. However, this covers a much wider spectrum. It covers any proceeding before the controller. There can be all sorts of ancillary proceedings on a wide variety of issue affecting the patent, its use and licensing, and not the actual application, where a patent agent might not necessarily be the person involved in it. I am not just raising a hare. It is of more substance and if, as Deputy Barry says — he may well be right for all I know — as a matter of course any application made to the Minister to permit a person to go in before the controller, would pretty much be automatically granted, why go to the trouble of having this whole rigmarole put into the Bill? Why not leave it wide open and leave it to the litigant to decide who he will bring with him before the controller? I do not want to take up any further time.
Question put and declared carried.
Sections 94 and 96, inclusive, agreed to.
NEW SECTION.
I move amendment No. 61:
In page 53, before section 97 but in Part VIII, to insert the following new section:
"97.—(1) If a patent application is to be refused or is refused or deemed to be withdrawn following failure to reply within a time limit set under this Act, the legal consequence provided for shall not ensue or, if it has already ensued, shall be retracted if the applicant requests further processing of the application.
(2) The request shall be filed at the office in writing within two months of the date on which either the decision to refuse the application or the communication that the application is deemed to be withdrawn was notified. The omitted act must be completed within this time limit. The request shall not be deemed to have been filed until the prescribed fee for further processing, not exceeding the reasonable cost of providing a service, has been paid.".
If the Minister can give me an assurance that a similar provision will be put into the rules I will withdraw this and the next amendments.
I will give an assurance to Deputy Barry that we will make provision in the rules for the aims of Deputy Barry's amendments. We will take into account the wording of the amendments but I cannot at this stage give a commitment that it will be exactly the same. However, the principle of what Deputy Barry wishes will be included under the rules to be made under this Bill. I give that clear assurance to Deputy Barry.
That would be more appropriate than changing the section in the Bill.
Amendment, by leave, withdrawn.
Amendment No. 62 not moved.
Section 97 agreed to.
Sections 98 to 105, inclusive, agreed to.
SECTION 106.
I move amendment No. 63:
In page 56, lines 3 to 6, to delete subsection (3) and substitute the following:
"(3) 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 or at a particular time.".
I wish to delete subsection (3) and replace it with my amendment. The purpose of this is to give discretion to allow nonregistered persons to act as patent agents. The wording has been changed and is more general than before. It is not limited to persons acting as patent agents in a particular case or at a particular time. However, for the purpose of obtaining patents it is more restrictive. I recommend that the wording of section 86 (2) of the 1964 Act be reinstated. It reads as follows:
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 or at a particular time.
I think we have given this issue a strong airing. Subsection (3) as it stands is perfectly clear. It is not obvious therefore why the Deputy wants to alter the wording given that he accepts the principle. The subsection, as it stands, was vetted by the parliamentary draftsman. As I have stated already, the register of patents agents is a procedure managed by a board, appointed by the Minister, of which the controller is chairperson. Subsection (1) states that the register of patents agents in existence prior to the commencement of the Bill will continue in existence and be maintained by the controller. Subsection (2) prohibits any person, partnership or company acting for gain from describing or holding themselves out as patent agents unless they are registered in the register of patents agents while subsection (3), as I have already stated, enables the Minister to permit a person not registered in the register of patents agents to act on behalf of others for the purposes of obtaining patents. Such a person will have to apply to the Minister and demonstrate that he has the capability to act in this way.
In the circumstances I would recommend to my colleague, the Minister, and to the Department that the board, appointed by the Minister, of which the controller is chairperson, who manage the register of patents agents be the first to vet applications even though it will be open to the Minister to grant licences or to obtain any other advice that he or she requires. In adopting this admirable procedure, whereby the board appointed by the Minister will vet applications, we are giving further responsibilities to the board.
There are quite a number of appreciable differences between Deputy Barry's amendment and subsection (3) and I do not think Deputy Barry referred to all of them. The first is that subsection (3) constitutes the Minister, for practical purposes, as an alternative licensing authority for patents agents. It provides that the Minister may allow any person not on the register to act on behalf of others for the purpose of obtaining patents. In other words, it would be a permanent appointment, and not confined to a particular case. It would appear that the subsection, as drafted, gives the Minister a general right to appoint persons not on the register to act as patents agents at all times and for as many would-be applicants as they wish. Deputy Barry's amendment is much more restrictive in that it would confine the Minister to appointing a person in a particular case or at a particular time. In other words, this would not enable a person setting up in business to seek commission whereas the subsection as it stands would.
Another difference is that Deputy Barry's amendment would give a right to act as a patent agent; in other words, to carry out all aspects of a patent agent's work. This would involve much more than submitting an application for a patent whereas the subsection would confine it to employment for the purpose of obtaining patents; in other words, making applications. It would not allow a person to carry out other aspects of a patent agent's work.
This subsection should be reviewed and a distillated mixture of Deputy Barry's amendment and the subsection, as it stands, should be considered. Another look is warranted. I am not happy with either as they stand but a mix of the two might be appropriate. On balance, I would prefer Deputy Barry's amendment.
As the Minister of State said, we have argued this point already and I reluctantly accept his point of view. If Deputy Taylor were to put down an amendment before Report Stage both the Minister of State and I could look at it to see if he can improve on what both the Minister of State and I have suggested.
I am surprised that Deputy Taylor feels that Deputy Barry's amendment is more suitable given that he argued earlier——
In some respects.
The Deputy has stated already that he considers Deputy Barry's amendment to be more attractive than the subsection.
On balance.
Deputy Barry's amendment reads:
Provided that if in any circumstances he thinks it right to so do the Minister may authorise any person whom he considers suitable to act as a patent agent in a particular case or at a particular time.
That individual would not be a patent agent as such and would only act for the person in making that application. That is quite a different matter to registering an individual as a patent agent. As I said, we have six patent agents already and there is plenty of scope for more given that there is a backlog of 20,000 applications. It is a matter for suitably qualified people to put forward an application which would be scrutinised by the board under the controller and then submitted to the Minister for approval.
What we are saying is that in individual cases a person may decide to get an expert to apply on his or her behalf. I should say, however, that a person does not need to get an agent to put forward the application to the patents office. There are many people who were well qualified and competent to put forward applications on their own. To allay Deputy Taylor's worries and concerns, a person will be under no obligation to engage a patents agent or an expert to act on their behalf. That would meet the Deputy's requests. This does not apply in the Deputy's profession very often. This profession is, however, open to more competition which is not the case in certain professions. Indeed, the patents agents would prefer if we restricted it to patents agents but we are not doing so. We are leaving it open because we want to encourage people to submit their own applications and make the procedure as economic and as inexpensive as possible. I think Deputy Barry understands fully what is proposed in the section and, having elaborated on it, I feel he concurs with it.
I am withdrawing the amendment as Deputy Taylor is going to table an amendment on Report Stage. We will look at it then.
I will look at it.
Amendment, by leave, withdrawn.
Section 106 agreed to.
Sections 107 to 113, inclusive, agreed to.
SECTION 114.
I move amendment No. 64:
In page 60, lines 31 to 33, to delete subsection (2).
This is a belt and braces section. It states that the Minister may make such rules, except in relation to any matter appropriate to be provided for by rules of court, and do such things as he thinks expedient subject to the provisions of the Bill and it goes on to list 13 matters which must be taken into account by the controller. Subsection (2) states:
Without prejudice to subsection (1), the Controller may adopt such procedures for giving effect to this Act as appear to him to be appropriate.
By including that subsection we are wiping out the rest of the section. The controller will be able to ignore all the matters mentioned and do anything he wants. This seems to be an odd way of going about it. While it is very unlikely that the controller would ignore subsection (1), subsection (2) gives him this right. I am not sure if we should give the controller a blank cheque in that regard. I would prefer to see him tied down unless the Minister can give me a good reason for including the subsection.
I certainly hope I can give a very good explanation for including it in the Bill. This subsection is necessary to enable the controller to lay down internal procedural instructions, e.g., guidelines for examination of patent applications. Subsection (2) merely clarifies that the controller has power to lay down internal official procedures and directions for the performance of duties under the Act. These would include guidelines regarding the examination of patent applications for use by those officers of the controller to whom the task of examination is delegated. Subsection (2) makes it clear by the words "without prejudice to subsection (1)" that the controller has no authority to make statutory rules under the Bill in the same way as the Minister or this House can. In this regard, subsection (2) is very important to the Bill. In the circumstances, I could not agree to its deletion. As I said, the controller has no authority to make statutory rules under the Bill in the same way as the Minister has.
He may not have the authority to make rules but, under subsection (2) he has the authority to ignore the rules which we make in this House.
The words "without prejudice" mean the exact opposite; the controller would have no powers to change the Bill in any way. It is very important that that is spelt out very clearly. It is clear that subsection (1) cannot be changed or amended by the controller without permission of this House or by the Minister.
Amendment, by leave, withdrawn.
Question proposed: "That section 114 stand part of the Bill."
The Minister is being given power to make rules. If he makes rules and it is found necessary at a later date to alter them would the Minister be entitled to do so under this section?
The Minister has powers under this legislation to make and change rules.
It does not say "change, vary or alter". It says that the Minister may make such rules.
The Minister would still be making rules even if he did so at different times under the Bill.
It is a nice point; if the Minister of State thinks it is all right so be it. Very often a section of this kind includes the phrases "may make" or "or having made them may vary or change them".
Question put and agreed to.
SECTION 115.
I move amendment No. 65:
In page 60, line 36, after "post" to insert "or by any other prescribed means".
Amendment agreed to.
Question proposed: "That section 115, as amended, stand part of the Bill."
This section deals with serving documents by post. Does that refer to ordinary or registered post?
"Post" means any method of post but the use of the ordinary post would be the normal procedure. Registered post may also be used. The purpose of this section is to permit the Minister at a future date to make rules allowing for the filing of documents by electronic means. We are leaving it open in that regard because of the new technologies and procedures. It gives the Minister flexibility in that regard. It is not necessary to include "registered post", "ordinary post" or any other prescribed means. Circumstances will change and there is no point in having to amend the Bill at a future date to allow for new technologies which are being developed every day.
I am happy that the section allows for new technology and so on. However, at present we are dealng with the provision of serving documents by post. The Minister says that ordinary post would suffice but I wonder if that is a good idea. We are talking about important matters which could affect the rights of people and companies and the serving of these documents on them. Very important and crucial decisions could hinge on serving these documents. Traditionally, documents had to be served personally or handed in and sending them by post is a relatively recent innovation. There is nothing wrong with that. However, having regard to the type of documents and the issues involved, would it not be prudent to provide for the necessity for the documents to be sent by registered post so that that could be recorded? After all, anybody can say that a letter has been posted but there is no evidence to that effect. In the case of a registered letter a receipt is issued by the post office and it is signed for at the other end. It confers a certain degree of formality; we are not talking about casual matters, very important issues could be involved. It is quite a concession to allow important documents of this nature to be sent by post but as the concession is made, would it not be prudent to say that it should be registered? In that way if a question arises later as to whether it was sent at least there would be a receipt to prove that it had. Such a degree of formality is warranted because it debases the issue and puts it on a very casual footing to say you can serve an important originating document which would arise under this legislation by putting a 32p stamp on it and dropping it into a letter box.
I take the Deputy's point. However, in the rules which we will be preparing to accompany the Bill I will recommend that documents should be sent by registered post to ensure their safety in regard to the controller and the applicant. Deputy Barry put forward an amendment in relation to the other prescribed means and, with the advent of future development in relation to technology and computers, it may well mean that the patent agent may be linked to the patents office to speed contact. There will be quite a number of rules under the Bill which will be laid in the Library of this House in the normal way. Deputies will have an opportunity of scrutinising rules made under this legislation. I will recommend that we leave "post" in the Bill but in the rules I will recommend that documents are sent by registered post.
I am glad the Minister feels the issue is of such importance that registered post is warranted. Having said that, I do not know how it can be achieved. I do not think the Minister can cover the matter by rules and regulations. If he was to provide for that in the rules he would be in conflict with the section. If the section is left in its present form, allowing for the service of documents by post, and the rules provided it be registered post, it would give rise to a difficulty. The Minister has indicated that a degree of formality should exist and therefore the section requires a variation. This could be done by adding the words "pre-paid registered" before the word "post". Will the Minister consider that either now or on Report Stage if he agrees with my suggestion that service of notices in this way should be by registered post rather than by ordinary post?
At present applications may be delivered by hand. Couriers may also be used although under the Postal and Telecommunications Act they are not authorised to convey letters. We do not want to tie ourselves down too much in the Bill. There will be more flexibility to include that provision in the rules and regulations rather than in the section. In this case "post" means "post and other prescribed means". It might be restrictive to specify in the Bill the words "registered post" because there are other methods of transmitting messages such as recorded post and other terminologies may arise in the future. The word "post" is clear and specific. When making rules under this Bill the Minister and the Department will have an opportunity of including the words "registered post" or, perhaps, other forms of postal delivery which may be introduced in the future. Perhaps, "couriers" also could be included in future legislation. I am leaving the section as open as possible so that we do not have to come back to amend it in circumstances of changing technology or changing practices in future.
Question put and agreed to.
Sections 116 to 126, inclusive, agreed to.
SECTION 127.
I move amendment No. 66:
In page 68, between lines 20 and 21, to insert the following subsections:
"(2) Subject to subsections (1), (3) and (4) of this section, section 120 in its operation in relation to an international application for a patent designating the State which is treated by virtue of the European Patent Convention as an application for a European patent designating the State, shall have effect as if any reference in that section to anything done in relation to the application under the European Patent Convention included a reference to the corresponding thing done under the Treaty.
(3) Any application described in subsection (2) which is published under the Treaty shall be treated for the purposes of section 11 (3) as published when, and only when, a copy of the application has been supplied to the European Patent Office in English, French or German and the relevant fee not exceeding the reasonable cost of providing a service has been paid under the European Patent Convention.
(4) Any application described in subsection (2) which is published under the Treaty in a language other than English, French or German shall, subject to section 120 (6), be treated for the purposes of section 56 as published when, and only when, it is re-published in English, French or German by the European Patent Office under the European Patent Convention.".
Since I put down this amendment I have been advised that if section 127 (1) is taken in conjunction with the European Patent Convention it would be sufficient to allow section 120 of the Bill to be interpreted as applying to international applications filed and published under the Patent Co-operation Treaty. I understand the Minister also has been so advised. If he can give me an assurance on that — he is nodding acceptance — I will withdraw paragraphs (2) and (4) of amendment No. 66.
However, paragraph (3) of the amendment is still necessary. I understand that this matter is not dealt with under the European Patent Convention because it concerns the prior art effect of the Patent Co-Operation Treaty application against a national application under section 11 (3). If paragraph (3) of amendment No. 66 is not introduced into the Bill a Patent Co-operation Treaty application will serve as prior art, that is the state of the art, against an Irish application of later priority date even if the Patent Co-operation Treaty application is published after the date of the Irish application in some other language such as Japanese, Russian or Mongolian and even if the fees are never paid to the European Patent Office to bring the Patent Co-operation Treaty application into effect as a European application. That is complicated and difficult and I hope the Minister understands the point I was making. If he takes the opportunity to study it he will see it is correct. I do not want to force him to accept an amendment in this regard at this stage but, perhaps, he will undertake to consider the matter between now and Report Stage.
This amendment to insert additional subsections is misconceived. Section 127 was drafted with the assistance of the experts in the World Intellectual Property Organisation who administer the Patent Co-operation Treaty, and there is no need for an amendment. The points raised by Deputy Barry are reasonable but I do not think the amendment is necessary. I will consider the matter between now and Report Stage if the Deputy feels it would improve the Bill. I am not giving a commitment to bring in an amendment but I will consider the points put forward in the House and Deputy Barry's amendment which we did not have the advantage of when considering the matter originally.
I will give the Minister my notes.
I would appreciate that.
Amendment, by leave, withdrawn.
Amendment No. 67 not moved.
Section 127 agreed to.
SECTION 128.
Question proposed: "That section 128 stand part of the Bill."
I oppose this section and I appeal to other Members to oppose it also. This section is a total negation of democracy. The Minister has very extensive powers under this Bill and if we agree to this section we will be giving him even more power. There probably would not be a Patents Bill, 1991, if the Minister had taken these powers in a previous Act. I feel strongly that if it becomes necessary to amend this section of patent law it should be done in the House; it should not be a prerogative of the Minister.
I wish to draw the Minister's attention to this section in the context of a point I made on section 114. I ask the Minister to consider subsection (2) which states that the Minister may by order revoke or amend an order under this section. Subsection (1) gives the Minister power to make an order while subsection (2) gives the Minister power to revoke or amend such orders, but he does not have that power under section 114. If he is happy with that position that is all right but I am simply drawing his attention to the distinction in the format between those two provisions. It highlights the point I made earlier.
I will deal with the concerns addressed by Deputy Garland in his amendment opposing section 128. I will elaborate further on the section. It is envisaged in this section that at a future date the European Patent Convention, the Patent Co-operation Treaty or other international conventions to which the State is a party, may be amended, and it is considered expedient, therefore, that the Minister should have power by order to make any necessary provisions to give effect to such an amendment without the necessity to come back each time to the Dáil with primary amending legislation. The Minister would have to place a copy of the rules in the Library and at that stage Deputy Garland or any other Deputy would be in a position to object to them within 21 days and then the matter would have to be debated in this House. This is a far better procedure than having to amend the legislation on a regular basis because of the changes, some of which may be minor, that will take place and it leaves us with a little more flexibility in this regard.
Deputy Taylor said subsection 2 provides that the Minister may by order revoke or amend an order under this section. This is also provided for in section 3 (4). The question of revoking or amending an order under the section is clearly stated and gives us such rights, but section 3 (4) also gives us such rights. It states:
The power to make an order includes power to amend or revoke the order, except in the case of an order under section 1 (2).
That should allay Deputy Taylor's concern that we have made provision in the Bill to revoke or amend an order under this section. All such orders will have to be placed in the Library. Members who wish to object will have the opportunity to lodge such objections within 21 days and the matter will then be debated in this House. Indeed, as Deputy Garland has said this will afford this House an inbuilt protection in the legislation, in that the Bill could not be amended without due regard to the rights of Members to have the matter debated.
I will withdraw my amendment on the basis that I will require time to examine the Minister's reply. If I am not satisifed with it I will put down an amendment on Report Stage.
I take the Minister's point with regard to section 3 (4) but in the light of that it seems to me that section 128 (2) should not be there at all because we are simply saying the same thing twice.
I take the Deputy's point, but nevertheless it is needed to make the provision quite clear because it refers specifically to section 128 without refering back to section 3. We could refer back to section 3 (4) instead of inserting subsection (2) to the section and that would be quite clear. But I believe that subsection (2) ensures that Deputy Garland's concern is more easily satisifed than by not including it, but it is a slight duplication.
Duplication is not desirable.
I accept that but it is a slight elaboration.
It does not need it.
Question put and agreed to.
SECTION 129.
I move amendment No. 68:
In page 69, subsection (3), line 10, to delete "issued or".
Amendment agreed to.
I move amendment No. 69:
In page 69, subsection (4), line 33, after "so," to insert "or".
Amendment agreed to.
Section 129, as amended, agreed to.
Sections 130 to 132, inclusive, agreed to.
FIRST SCHEDULE.
Amendment No. 70 is in the name of Deputy Peter Barry. Amendment No. 72 is related and I suggest, therefore, that we discuss the two amendments together. Is that agreed? Agreed.
I move amendment No. 70:
In page 70, between lines 18 and 19, to insert the following:
"1. Section 28 of the Act of 1964 shall continue to apply to a patent of addition in force at the commencement of this Act.".
I believe that a patent of addition granted under the 1964 Act should continue during the life of the parent patent, even though a patent of addition cannot be granted under the Bill. The grounds for revoking a patent granted under the 1964 Act are set out in the 1964 Act and it would be unfair to apply the new grounds for revocation as set out in this Bill retrospectively to the existing patents. That is the purpose of my amendment.
Deputy Barry's amendment is unnecessary because amendment No. 72 in my name takes care of this concern.
Amendment, by leave, withdrawn.
Amendment No. 71 is in the name of the same Deputy. Amendment No. 78 is related and I suggest that we discuss amendments Nos. 71 and 78 together. Is that agreed? Agreed.
I move amendment No. 71:
In page 70, between lines 18 and 19, to insert the following:
"2. The provisions of section 58 of this Act relating to the grounds for revocation of a patent shall not apply to any patents granted under the Act of 1964, but the provision of sections 34 and 35 of the Act of 1964, relating to those matters shall continue to apply in any such case notwithstanding the repeal of those provisions of that Act.".
I will listen to the Minister's response before I comment.
This matter is taken care of in amendment No. 78 in my name which proposes to insert an additional paragraph No. 12.
Amendment, by leave, withdrawn.
I move amendment No. 72:
In page 70, paragraph 1, line 26, after "Act," to insert "A patent of addition granted under the Act of 1964 shall remain in force only for so long as the patent for the main invention remains in force.".
Amendment agreed to.
I move amendment No. 73:
In page 70, paragraph 2 (1), line 28, after "shall" to insert "for patents which have been in existence for less than ten years".
I cannot accept this amendment. This is an important section. The Deputy's amendment restricts the additional term of four years to those patents granted under the 1964 Act which have more than ten years left to run when the Bill comes into force. This would not be equitable when we are so much further behind other European countries in having a patent term of 20 years. Other European countries have had a 20 year term for the past 14 years or so. The question of granting an additional four years has to be viewed in the context of the counter balancing provisions of paragraphs 2 (3) and 4 of the Schedule in particular paragraph 4 which significantly circumscribes the effect of the extra four years. In the circumstances it is very important that that should be clarified. I know that concern has been expressed by the manufacturers of generic pharmaceuticals. However paragraph 3 (1) of the transitional provisions deals with the treatment of petitioning for the extension of the 1964 Act patents, which are still pending when the Bill will become law. The paragraph as amended by the Minister's amendment No. 73a, was prepared with a view to curtailing as much as possible and within constitutional constraints, the duration of extensions in these cases. The effect of the amendment is as follows: to abolish the link between the extension possible and the length of time an extension petition was pending; to provide for a four-year extension in all cases where a petition has not been opposed; and to provide, in any case where an extension has been opposed, that the petition will be decided under the provisions of the 1964 Act. Even though this might result in a few cases in an extension of more than four years, it is necessary for constitutional reasons to permit the continued operation of the 1964 Act in those cases and not to wipe out proceedings already in train before the court.
Paragraph 4 relating to transitional provisions was included with the specific interests of generic pharmaceutical manufacturers in mind. In relation to patents extended under paragraph 2 (1) or paragraph 3 (1) it is provided that any third party may, during the final two years of such extension, make all such preparations, except importation or marketing of a patented product, as would normally have to be undertaken to place a generic version of a pharmaceutical product on the market. Such preparatory work will be immune from actions for infringement of the relevant patent and will provide a valuable headstart for full commercial marketing after the term of the patented product expires.
I have given very careful consideration to this matter because the views of the generic pharmaceutical industry, which is of vital importance to the economy, have to be balanced against those of the patented pharmaceutical industry, which is of equal importance. In Solomon fashion the Bill has to balance all considerations. I feel that I have come up with a reasonable provision in this regard.
Over the weekend I received many representations about this matter, partly because of my former association with the Health portfolio.
The cost of medicines in this country is extremely high by any international comparison. The drugs Bill is of the order of £120 million. In our industrial development we have created several factories spawned from what is called the generic chemical industry. Clonmel Chemicals would be a very good example of that. When the lifetime of a patent is over anyone can make a particular drug under licence from the National Drugs Advisory Board. That is a very brief explanation of the production of generic drugs. Generic pharmaceutical manufacturers cannot produce a "St. Bernard" or a "Yellow Pack" variation of that drug, they have to make the identical product. The significance of that is that generic drugs are often sold for half the price of patented branded products. Therefore, a huge saving is made to the taxpayer by developing a strong generic industry.
I have been advised that there is the potential for job losses in the generic sector and that serious disruption may be caused by those who have patents exploiting them for a period longer than that reasonably needed by them to recoup their special research and development costs.
In support of Deputy Barry's amendment, I must say that it is vital to promote a generic chemical industry. It is vital that we have cheaper drugs because the savings made could go towards developing an improved health service with better hospital care, nursing care and so on.
I ask the Minister to reconsider his position and to give his views of the job effects in the generic chemical industry.
Like Deputy Yates, I have considerable problems with the wording of the Bill, to start with. The Minister appears to have made some improvements but I am not entirely satisfied that it has been improved sufficiently. Nor am I entirely satisfied with Deputy Barry's amendment. Therefore, I am reserving the right to put down an appropriate amendment on Report Stage.
This is a very important part of the Bill. Having been involved in the Department of Health, I too, am well aware of the cost of drugs to the economy.
In Ireland we have a mix between branded manufacturers and generic manufacturers. Drugs produced by generic manufacturers are not necessarily very cheap compared with branded products. I have to balance the conflicting demands of the branded patented products, which are produced in this country, against generic products. There is a feeling, and this is evident in Deputy Yates' point of view, that Ireland has only generic producers, but that is not the case. The actual branded production of even bulk pharmaceuticals is of vital importance to our economy and accounts for a high degree of our export revenue. That is the balance that the Minister, myself and the Department of Industry and Commerce officials have to bear in mind.
Deputy Garland says he will review the situation and may decide to put down an amendment on Report Stage. That is his entitlement, and it would provide the House with a further opportunity to tease out the issue.
I have met representatives of different interest groups and I have received representatives from interests on both sides.
Members have concentrated on the pharmaceutical industry but it is not the only industry to be affected by the Bill. This is not a Drugs Patents Bill, it is a Patents Bill. It deals with electronics as well as all other kinds of products. When one considers that there are 20,000 applications pending at this stage, one realises the variety of those applications. There is a tendency — and an over-concentration, I might add with respect to Deputy Yates — to deal only with generic drugs and branded product drugs. It is interesting that we have not received many representations from other industries producing branded products and patented products that are of great significance to the economy as well as to themselves.
To elaborate once again because, as I said, this is a very important part of the Bill, paragraphs 2, 3 and 4 which relate to the transitional provisions, when taken together, from a package of proposals for the treatment of the 1964 Act patents following the coming into force of this Bill.
Paragraph 2 (1) of the transitional provisions permits an additional four years to be added on to the term of patents that are still live when the Bill comes into force. Anyone with a patent that expires before the Bill comes into force will not be able to avail of these provisions. The patents involved with the new provisions will have a 20-year term instead of a 16-year term. Equity requires that a provision to that effect should be enshrined in the Bill. It is important to note that this applies in respect of all patents, irrespective of subject matter. Ireland is now some 12 to 15 years behind its European partners in providing a patent term of 20 years. To refuse now to do what is provided in paragraph 2 (1) would give the wrong signal to the international community as regards our seriousness about protecting inventions, and individual patent holders who have been kept waiting for so long for a patent term in Ireland comparable to other European countries would, to say the least, feel very let down. We owe them a gesture of goodwill. But let it not be forgotten that we are also taking away certain rights that patent holders have under the present law, and I shall deal with those in a moment.
As I stated earlier, paragraph 2 (1) applies across the board, irrespective of the subject matter of a patent. The only sector which has demurred in relation to paragraph 2 (1) is the generic pharmaceutical industry. Their representations have, nevertheless, been given serious consideration and the opportunity has been taken to include certain restrictive provisions in paragraphs 2 (3), paragraph 3 and paragraph 4 of the transitional provisions.
It is worth considering the effect of paragraphs 3 and 4 of the transitional provisions which will directly benefit the interests of generic pharmaceutical manufacturers. With regard to paragraph 2 (3) of the transitional provisions I should say this subparagraph bans the making of petitions to extend the term of patents granted under the present Act after the enactment of this Bill. This is a significant curtailment of existing rights in that at present a patent holder is entitled to make a petition to the court or to the controller for an extension of his patent term and the law allows for the grant of an extension of five years or, in certain circumstances, up to ten years. The curtailment of this right brought about by paragraph 2 (3) is of direct benefit to generic manufacturers who, because of it, can make future plans on the basis of the certainty provided by that paragraph.
I want to place on the record quite clearly that paragraph 3 (1) of the transitional provisions deals with the treatment of petitions for the extension of the 1964 Act patents still pending when this Bill becomes law. The paragraph, as amended by the Minister's amendment No. 73 (a) was prepared with a view to curtailing as much as possible, and within constitutional constraints, the duration of extensions in these cases. The effect of the amendment will be (i) to abolish the link between the extension possible and the length of time an extension petition was pending; (ii) to provide for a four-year extension in all cases where a petition had not been opposed and (iii) to provide, in any case where an extension has been opposed, that the petition will be decided under the provisions of the 1964 Act. Even though this might result in a few cases in an extension of more than four years it is necessary, for constitutional reasons, to permit the continued operation of the 1964 Act in those cases and not wipe out proceedings already in train before the courts.
I have very carefully considered this provision. It is very important that those rights be retained by cases before the courts at this stage. It would not be constitutionally proper that we in this House would have the right to wipe out the rights granted under that 1964 Act. I am very conscious of that and have taken sound advice from the Attorney General's office in that regard. This is a key provision of this Bill.
I might reiterate that paragraph 4 of the transitional provisions was included with the specific interests of generic pharmaceutical manufacturers in mind. In relation to patents extended under paragraph 2 (1) or paragraph 3 (1) it is provided that any third party may, during the final two years of such extension, make all such preparations — except the importation or marketing of a patented product — as would normally have to be undertaken to place a generic version of a pharmaceutical product on the market.
As Deputy Yates will be fully aware, to place a product on the market requires the licensing of the drugs organisation here. That is required for a generic product as much as a branded product. A generic product must be fully examined by Dr. Scott, or any future "Dr. Scott", who may so require. Having dealt with that organisation, in the Department of Health, I must say it is regarded as one of the most effective and efficient regulatory bodies and is recognised as such in Europe and in the USA for the work they carry out. In my capacity as Minister of State at the Department of Health I went to inspect it and was very impressed. They are very conscious of the need to place drugs on the market as quickly as possible, considering the health and well-being of our citizens. A generic drug must be subjected to the full regulatory procedures. We are giving generic manufacturers an opportunity to commence their research work two years before the patent expires. This will be of great assistance to them but it may take five to eight years to get a product onto the market.
I must emphasise that, fortunately in our economy, we have generic companies doing tremendous work. I want to compliment them because I have worked with them at home and abroad——
Stabbing them in the back.
——in my role as Minister responsible for trade and marketing. I have supported and will continue to support generic drug manufacturers. But the generic drug manufacturers themselves can become the branded, patended, producers of the future; they are in that field also. I can give examples in my constituency, one of which is the Elan Corporation who employ 375 people who have branded products as well as, I presume, being involved in an area of generic work. Therefore, we must strike a balance between the generic and branded manufacturers here. I am sure Deputy Yates would like to have such balance struck to ensure that the international community, with clients in our country, who contribute to our economy and exports, who have provided jobs here, are also taken into consideration. We cannot throw their rights aside. For example, why should they have less of an opportunity working in our economy as opposed to working in the United Kingdom or elsewhere in Europe? Surely it is only right and proper that in this Bill we would afford them the rights available to them in other EC member states? Why should we render our economy less attractive for branded international companies which, from an IDA point of view, we constantly attract here to establish plants? It is my wish that, in the Single European Market, instead of just manufacturing bulk pharmaceutical products it will be important — and I have stressed this with the major pharmaceutical companies — to see the finished product trade here. We must provide the environment to encourage them to come in here, complete their work, and have the final, branded and packaged product leave this country.
In the European context to date there have been restrictive practices operated by, for example, the Italians and French, who insist that the branded major companies provide that the finished product be manufactured in their country. Under the Single European Market a significant change will take place on 1 January 1993 when we will have an opportunity of attracting those companies rather than exporting bulk pharmaceuticals. I might remind the House that they add greatly to our overall export figure but do not necessarily add to the creation of employment here.
I want to make it quite clear that I must balance the great contribution that will continue to be made by generic manufacturers here while encouraging the major, if one likes to call them, multi-nationals, to do so——
What about the Irish ones?
There are also branded companies here who manufacture branded products and will continue to do so. I want to ensure that our climate is right for them as well, to have added value to their product made here. The protection of the patent laws of this country must apply to them also. I believe we have struck the right balance in this regard. In the circumstances I cannot accept the amendment proposed.
The Labour Party support this amendment and regard it as extremely important. If anything it does not go far enough but it is certainly a very welcome amendment. I am afraid the Minister is getting carried away by his verbosity.
Such as it is.
The position is that years ago these companies, on the basis of the 1964 Act, applied for and were granted patents for 16 years on their product. When they applied for that patent they knew that it was for a 16-year period; that was all they expected to get and they were very happy to get it. They have exploited that position and raked in their profits over the years; that was the arrangement.
What is happening now? What is the Minister doing now? Unasked for, for nothing he comes along and gives them an extra four years they never expected, do not require and which, let us face it, will have serious adverse consequences for ordinary people. The Minister used the expression that he was concerned about the health and well-being of our people. If he is concerned about the health and well-being of our people he ought to bear in mind the cost of drugs and the difference in price between the branded and generic product. He did not take that into account in his lengthy statement. He said that equity requires this provision to be made. That is the most outrageous, illogical statement in this context that I could possibly imagine.
Does equity require that a company who applied for and were granted a patent for 16 years and expected no more should, for no reason, no consideration, no benefit to the public or to anybody except their own well-to-do shareholders, be given a present of an extra four years of this patent? Has all sense and logic been turned on its head? The Minister is turning the whole position upside down. Equity and logic require a continuation of the conditions under which they applied for and got a patent for 16 years. That is all they expected and all they need. They have probably made their profits 50 times over already and equity most certainly does not require that they be given an unasked for and unwanted gift of an extra four years for nothing.
Regarding the need to cater for the branded products as well, any new product will get the 20 years under the earlier sections, irrespective of this amendment. They will not be adversely affected. We are talking about existing patents which are due to run out within the next couple of years. Where is the equity in regard to the generic drug manufacturers who have since 1964 geared their whole manufacturing process, their research, employment and finances, in the knowledge that patents would expire in 1992, 1993 or 1994 under the law laid down in 1964? They were prepared to take on workers and produce drugs identical to the branded products at a fraction of the rip-off cost which the branded manufacturers, so beloved of the Minister, have been extracting from the populace for more than ten years. These branded drugs have been making enormous profits for the multinational companies. There has been an astronomical increase in their profits, at the expense of the unfortunate people who need to take their drugs for the sake of their health.
The legal position has been firmly established since 1964 but the Minister tells the generic manufacturers to get lost because an extra four years is being added to the life of the patents. The multinationals will pick up the profits and the unfortunate generic manufacturers who are playing such a wonderful role in catering for the health needs of our people are to be cast aside in the interests of the big fellows, who are to continue making enormous profits, as if they have not already done well enough. The Minister thinks that the millions they have made on their branded patented products are not enough. He wants to increase that profit, for no apparent reason. Santa Claus is not in it.
The Minister is seeking to bestow an extra four years out of the goodness of his heart so that the unfortunate people who need those medicines for themselves and their families will have the privilege of continuing to pay perhaps £15 or £20 for a branded product instead of £1 or £2 for the generic product. That will be the result of the Minister's action. He has the means to bring the matter under control but instead of addressing reality he goes on about what equity requires. His argument does not hold up. To say that companies have the right to apply to the court for an extension is not relevant. While a company could make an application, the court has a discretion and might or might not grant the extension. No court is very likely to be sympathetic to an application to extend a patent beyond 16 years, knowing that this was the term on which the original application was based. The court would know that the company concerned had been raking in millions hand over fist and would have done well enough already. There are other companies ready and willing to produce the identical generic product at a small fraction of the price.
Why do we have to pander to the needs and demands of the multi-nationals? Some excellent Irish firms who have communicated with us all indicated that in the expectation of these patents running out over the next few years they want to protect existing employment, take on staff and produce generic drugs. Why must we block them? For what purpose? Who will benefit? Are we obligated to do it? There is no such suggestion by the Minister. Why are we cutting our own throats? We wonder about our level of unemployment being the highest in Europe. If this is a typical example of the way we approach these matters, it is not in the least surprising that our unemployment rate is so high. It will remain so as long as we behave in this ridiculous fashion by adding on an extra four years of patent rights for the manufacturers of branded products so that they can continue selling their products at an artificially high price. They have already made their money under the protection they enjoyed for 16 years. Why not cop ourselves on and realise what is at stake?
We should do the sensible thing for once by protecting jobs and making these important drugs available at manageable cost to families who desperately need them. We are not under any obligation. We are in control of our own affairs. Why does the Minister find it necessary to argue that these companies should have an extra four years which they never sought and do not need? What is behind it all? What kind of representations have been made to the Minister to allow this continuation for an extra four years?
The big corporations.
We know that the patents cover items other than drugs. Why make the point that the Minister has not had representations from the electronics and other industries? So what? Every firm does not make representations on every issue. The real issue here is the drug industry. These firms applied for and got a patent for 16 years, which is a long time. That is all they expected or could get. When they did their research for those drugs 16 years ago they knew what the patent period was. They had no reason to believe that it would be anything other than 16 years. They did very well and they should keep to the bargain that was made. One could argue that this period should be reduced. For example, we could reduce the term from 16 years to 12 years, which would be long enough. One can imagine the screams and howls of anguish by the multinationals if instead of extending the period to 20 years we took four years off so that the patent would only run for 12 years. If the Minister put forward an amendment in this respect one would have a great deal of sympathy with him. I could immediately assure him of the support of the Labour Party because we stand for the rights and interests of the people on the ground who have to buy these drugs. The Minister has put himself and the Government firmly and squarely on the side of the multinational drug manufacturers. That is where his money goes. That is who Fianna Fáil, the Progressive Democrats and the Minister support.
When a measure like this is introduced there are winners and losers. On this occasion we have to ask: who are the winners and who are the losers? The Minister seems to be exercising himself. Perhaps he needs one of the drugs——
I am anxious to respond in an orderly fashion to these outrageous comments.
No doubt the Minister will respond when I am finished. As a result of this change in the legal position the winners will be the multinational drug manufacturers who will be given an extra four years on their patents. They will be able to continue to charge the artificially high prices attributed to these drugs for another four years. This is a very big win. We are not talking about small beer——
They will have the exclusive right to produce a drug.
They will have the exclusive right to produce a drug at their price.
They will have a monopoly.
We are talking about very big money. That is the winners side.
Zig and Zag.
I will not respond to that.
The Minister and the Government are on that side of the coin.
Walt Disney is over there.
On the other side of the coin are the people who have to buy these drugs. They will have to continue paying £15, £20 or even £25 for a prescription. The generic manufacturers produce these drugs for an infinitesimal fraction of that — it could be 10 per cent or 20 per cent. The people who are given prescriptions by their doctors and who are strapped for cash are the losers because they will have to continue paying the high prices. They are the first losers.
The second losers are the people who will lose jobs and those who cannot get jobs as a result of generic manufacturers not being able after a lapse of time, based on the patent, to set up in business to manufacture drugs. They will be the losers. Jobs will be lost in these indigenous Irish companies. The Minister for Industry and Commerce has always said that his prime objective is to help and benefit indigenous Irish companies. Virtually all of the generic companies are Irish indigenous companies. However, they will be the losers and the multi-national drug companies will benefit and be able to carry on for an extra four years.
I tried to come in a little earlier to try to stop Deputy Taylor digging a hole for himself with these statements. Deputy Taylor seems to have forgotten that approximately 8,000 people are employed in the branded products area and approximately 1,000 in the generic area. I believe my party represent the workers. I have to bear in mind the need to protect their employment, something which Deputy Taylor, if one takes his statements at face value, does not seem to be concerned about. He seems to have disregarded the fact that multinational companies give tremendous employment to Irish people. He should not be knocking these companies just because they are multinationals; he should remember that they are employers. Whether they come from the USA or Japan multinational companies are welcome here and I would encourage them to set up here. I do not know if it is Labour Party policy to discourage outward investment in Ireland. Maybe it is. I should point out that encouraging and supporting inward investment by these companies which are in a position to provide employment here does not mean we are not giving support and assistance to indigenous Irish generic companies. We have assisted Irish companies through the Industrial Development Authority. Why is this regarded as a conflict of interest? Deputy Taylor in his outbursts on this Bill does not seem to have taken into account the 8,000 people employed in the branded products area. I had to restrain myself from interrupting the Deputy——
May I say that the Minister's restraint was admirable?
I thank the Deputy but I can assure him that it was difficult. I do not like to be political — this is a nonpolitical Bill which I hope will be fully endorsed by this House — but the people who support the Deputy's minority party should reconsider their position. This Bill is long overdue and should be passed as expeditiously as possible.
I was well aware that this would be the most contentious part of the Bill and I sought to achieve a balance in it. I should point out to the House that there was no ideological difference between the views expressed by the Minister for Industry and Commerce, Deputy O'Malley, and me in this regard. The extension of the period from 16 to 20 years is justified. If any of the Deputies opposite were in the position we were in they, too, would have had to include a balanced provision in the legislation.
You let Albert down.
Under the 1964 Act the courts were given the power to extend the period of a patent. The average period of the extension was five years but in some cases it could be as long as ten years. That provision is not included in this Bill. We have provided for a four-year extension only. In addition, generic Irish manufacturers and other generic companies will be able to undertake two years preparatory work on a product. This is also a major concession. Even without the four-year extension they could not put their products on the market because of the lead-in period for generic drugs. It is obvious that neither Deputy Taylor nor Deputy Yates have had any experience of being in the Department of Health. Their catch-cry on a regular basis is that the cost of generic drugs should be reduced. They seem to believe that a reduction in the cost of generic drugs would solve all the problems in this area overnight. Generic drugs cannot be put on the market without going through the proper procedures to protect the interests of the public. It is simplistic to think that generic drugs can solve the problem of the cost of drugs to the Department of Health and to the economy. It would be very nice if that were possible.
It would be a big help.
When I was in the Department of Health I had a good look at this area.
There have been unprecedented cutbacks in the health services.
I am aware that the former Minister for Health, Deputy O'Hanlon, had given careful consideration to this area and he had negotiated with the representative bodies of the pharmaceutical companies for reductions in the cost of drugs. Providing a branded product in the market place requires enormous costs in research and development. In a sense, we are not giving recognition to our companies in the pharmaceutical area who should be in the branded drugs area, not just relying on generic drugs that we have not got.
We have qualified people in this country who could produce uniquely branded drugs, without relying on generic copycat productions. I get the impression that that is all Deputy Taylor and Deputy Yates are aware of and that we do not have the expertise to produce new branded drugs when required. We do have and we will have such expertise in the future. Enormous investment is required in these companies. A high percentage of the cost of a drug arises in the research and development area. When I was in the Department of Health I had the opportunity of seeing them at first hand in this country and also when I went on IDA missions abroad to try to attract major pharmaceutical companies to locate here. Under the Patents Bill we have to ensure that we provide similar provisions to those which are now available in the other 11 countries of the EC. Twenty years is the term of the patent in the rest of Europe.
We are doing that but what the Minister has to do——
Why should we not take advantage of the situation when this Bill is long overdue. Both Deputies opposite were in Government with parties who did not bring this Bill before the House and should have had it passed six or seven years ago.
I should hope not.
By extending the term of the patent to 20 years, which you would have had to do, you would have allowed the benefit being provided now. By means of this Bill we are making up for lost time.
Where was the Minister of State for the last four years?
It is a reasonable extension and I am convinced that it is right and proper. The CII who represent all the big manufacturers in this country are satisfied.
All the big manufacturers.
I understand from submissions that they are satisfied with the provision. The actual representatives of the pharmaceutical industry are not particularly satisfied with the provision we have made.
That is for sure.
The companies who represent the so-called multinationals to which the Deputy referred are not particularly satisfied with the provisions of the two-year lead-in period which we are granting to generic companies.
One could never satisfy them.
Following careful consideration I emphasise the contribution that branded drugs make to the economy, a point which seems to be disregarded totally by Deputy Taylor particularly; I think Deputy Yates would have a more balanced view and I will be interested to hear his comments. Deputy Taylor has total disregard to the employment needs. I hope the employees of these companies, who are spread out in very important constituencies, will be aware of the viewpoint expressed by a representative. On reflection perhaps it was not an authorised statement by Deputy Taylor and that it does not represent the views of his party.
It does.
That is a matter for him to explain to his supporters wherever they may be in different constituencies. I have to have a balanced view and to take into account the needs of the Irish economy to allow the generic companies to survive and develop.
To allow for the generic companies to survive?
When companies here apply for patented new branded drugs they will have a 20 year period in which to pay for the cost of research and development. I hope we can have less emotive contributions to this debate than those put forward by Deputy Taylor. I represent a rural constitutency which is very conscious of the cost of drugs. Under no circumstances would I put forward proposals which would result in an excessive cost of drugs to any of my constituents. That is an unfair reflection on my position and the views of my Department.
That is a fact.
We had a fair exchange in this regard and I would encourage the Bill being passed as quickly as possible.
I would like to correct the Minister, first, on his remark that this Bill was not an ideological Bill. It most certainly is an ideological Bill. I made this clear on Second Stage when I was the only Deputy in the House to vote against it and I make no apology for it. We are having a rehash of the debate we had last time round on my amendment to section 36 which, as you will recall, basically provided for a reduction in the term of a patent — not an increase from 16 to 20 years, which is the purpose of this Bill — from 16 years to ten years.
I welcome on board the Fine Gael Party in the person of Deputy Yates who apparently has now seen the light. While their amendment does not go far enough, the ten-year factor has obviously got through to him. I would recall to Deputy Yates when he was needed he was not there nor were The Workers' Party. There are seven Deputies in The Workers' Party and not one of them had the courtesy to be in the House to deal with this important legislation, to give support to Deputy Taylor and I.
That is a good question.
On the last occasion when my amendment on section 36 was discussed the only contribution The Workers' Party could make was that they came in half way through the debate and did not know what to do. They voted with the reactionary parties — Fianna Fáil, Fine Gael and the Progressive Democrats — to crucify the taxpayers and the ordinary people in Ireland who, as Deputy Taylor said, are paying far too much for their drugs. Thanks to Deputy Taylor I had some support in the House for my amendment. It is much to his credit that he supported me.
The Minister referred to the necessity to balance the needs of the generic industry with the patented firms. I see little sign of balance. There is a mere 1 per cent gesture which amounts to nothing. The fact is that the Minister is totally in favour of the patented manufacturers. The same number of jobs, if not more, could be created by the generic industries than the patented goods industry. I accept that there would be disruption and that people would have to transfer from one firm to another or, perhaps, from one area to another. There is no reason the overall employment in the country should be affected. Indeed, one could argue that it could be increased. The Minister raised a spurious argument about employment; of course that matter is important but there are no employment implications that I can see. On balance and with some reluctance I will support Deputy Yate's amendment although it does not go far enough.
I always get great pleasure from listening to Deputy Leyden. I will give him a little advice. I have observed him from time to time and he is better when he is reading out strict guidelines handed to him by the civil servants.
That is a spurious comment.
The Minister started off all right with the point about the 8,000 jobs and the 1,000 jobs but he moved on to his usual bluster and bluff which does not stand up to scrutiny. On the conclusion of this debate on this amendment I hope the Minister will see that his position has collapsed and that he should mend his hand between now and Report Stage. When I see these white bits of paper with numbers such as 73a on them, I know that the Department are making it up as they go along. They are obviously shifting their position as the debate is developing. Why did the Minister find it necessary to mend his hand with regard to amending the First Schedule? Does the Minister realise the weakness of his position?
The purpose of a patent is to indemnify those who invest in the high risk area of research and development so that when they hit a new invention, for instance, perhaps a cure for AIDS, they will be allowed a certain exclusive period to recover the high risk expenditure in their laboratories where they might have created drugs which were no good and where they experimented on rabbits and rats and so on. At the end of the day we have to strike a balance with regard to a reasonable period to recoup that level of investment.
It is a good job that Deputy Garland is not here to listen to the Deputy talking about rabbits and rats.
Sixteen years is more than an ample period within which to recover research and development expenditure. The Minister is saying that if someone invents a cure for AIDS he and his colleagues in Europe, the bureaucrats in Europe, the people who are subject to the pressures and lobbies of big business, will ensure that the cure for AIDS is not produced by other than big business companies. There is a big business impression on this Bill. The nature of the exhaustion of the life of a patent, means that anyone can produce such drugs under licence from the National Drugs Advisory Board. The Minister seems to think he has a monopoly of wisdom on how the National Drugs Advisory Board work. I, too, have met Dr. Aileen Scott. I, too, spent some considerable time in the offices of the National Drugs Advisory Board and I can stand over the Minister's confidence to them in terms of their being an office of high repute with an international reputation. However, when the life of a patent is over in 16 years, anyone can, if given a licence by Dr. Scott, produce a drug. Inevitably four or five people will produce the drug and the logical conclusion is that there will be pressure on the price. Because people at that stage will not have the research and development expense, because the formula is available in the patents office, there will be competition for the first time in the pricing.
I have no doubt as to what big business want, but we must also look at the unrepresented view. The Minister keeps talking about one section of business versus another. What about the poor god-forsaken patients, the consumers of those drugs? What of their rights tonight? Where is their voice being heard? What about the voice of the poor person who is £4 over the limit for a medical card, the old age pensioner or the person on low pay? They are being forgotten and ignored in an argument between two sections of the pharmaceutical sector. The Minister has an obligation to patients to ensure that they get value for money and that they are not exploited by extensive lifetimes on patents which go beyond a reasonable point to recoup R and D expenditure, which instead, create an exclusive right to overcharge for a product because no one else can produce it. That is the kernel of what we are talking about.
The Minister made great play of his argument that 8,000 people are employed in this area in the country and that big corporations in the pharmaceutical sector would not be here unless patent law was what the Minister is proposing. The reason those 8,000 people are employed here is because of the tax code. It is because we have the lowest rate of corporation tax and because we allow a level of transfer pricing that allows such companies to gain huge profits which will go untaxed because all of the goods are exported. If the Minister introduced a 30-year patent life and changed the corporation tax rules, those 8,000 jobs would not be there. The Minister's argument is falsely based, it is specious and it does not hold water.
There is a huge jobs potential in the generic sector. Virtually all of the pharmaceutical companies involved in the 1,000 jobs in the generic industry are Irish companies. The indigenous pharmaceutical sector is in the generic area, not in the branded area. If it suits any of the big operators to go to Venezuela tomorrow, they will do so, but the critical factor will be our tax law within the Single European Market and not the patent law.
I regret that the Minister is an apologist for multinationals and that he does not understand the case. The Minister will know from his extensive foreign promotional trips for the IDA to attract industry that patent law is not a factor, that the factor is our tax and our financial incentives by way of capital inducements to industry.
The Minister has put much stress on balance, equity and on fair play so I would ask him to review his position. I appeal to the Minister not to force this matter to a vote which would preclude discussion on it on Report Stage but to consider a half-way house of two years. I suggest that given the preparatory period of two years which the Minister is allowing, he should move to an 18-year period and allow that preparatory time to immediately come into play at the end of the 16-year period. That would strike a fair balance within industry and it would allow the orderly growth of the pharmaceutical sector. It would allow a clear message to go out that the Government do not want to see multi-nationals ripping off ordinary patients.
Where I find most fault with the Minister's argument is with regard to his recollections of his days as a Minister of State at the Department of Health where this was not an issue. I can assure the Minister that it is now Government policy to use the maximum level of generic drugs. I am surprised that the Minister was not aware of this, but, for the Minister's information, the former Minister for Health, Deputy O'Hanlon, sent out a drugs formulary to all general practitioners and all hospitals in the dispensing of drugs, so that where possible generic drugs should be used. I would go further. In Sweden they have a very simple system. If one is a public patient there is a little box on the prescription note, and unless the doctor ticks that, a generic drug, where available, is prescribed. They reckon this has cut their drugs bill by 40 per cent. That is very significant given that we have a public sector drugs bill of £120 million.
Not only the patients' but the taxpayers' interests are at stake here. I ask the Minister to realise the weakness of his position, to stop bluffing and to consent and allow us to proceed with the rest of this Bill by agreeing to, on Report Stage, bring forward a different amendment.
I did not intend to get involved in this debate. However, the Minister's comments about the needs of the multinational drug companies forced me to take a stand. The multinational drug companies are well able to look after themselves. They are the biggest lobby group in the world. In Washington, Brussels and other major capitals they pay vast sums of money to ensure they are well represented in the seat of power.
One must ask who is representing the man in the street. It is our job to do that. We are the protectors of the public not of the multi-national drug companies. Deputy Taylor was being attacked as being anti multinational. I have no doubt that Deputy Taylor is not. We welcome multinational companies. We welcome industry, but we must have safeguards. The interests of the public are paramount. These companies are welcome and, as Deputy Yates said, it is the tax concessions that attract them.
We should be looking at whether or not the term of a patent should be cut back from 16 years. We understand the cost of research and development. It is very expensive but some of the very wealthy companies in the world today happen to be drug companies. I have no objection to drug companies making healthy profits. It is good for our country that companies make profits. They must, however, be controlled.
The Minister indicated that generic drugs would not make an appreciable difference in the overall cost of drugs. He was in the Department of Health and I, at one stage, was in that Department. What the Minister says is flying in the face of all reason. Of course it would make a tremendous difference but there was never really the will to use generic drugs because again the drug companies, and their representatives, were whispering in the ears of doctors to prescribe branded products as against generic products. That is business.
A very large proportion of the population come under the medical card scheme which means the State is paying for their drugs. Then there is the cash back scheme for the ordinary person if he spends over £90 in a three month period. The State are picking up the tab. Any additional years added to the term of a patent will be paid for by the State and, God knows, the health budget is strained to the limit. There are complaints up and down the country about our inadequate health scheme. We should be endeavouring to be cost effective right across the board. Drugs are very expensive and, here we are, making it harder for the State, and the general public, to get drugs at a reasonable price. When drugs are patented we are at the mercy of the drug companies because they can charge what they like. I had to purchase a two months supply of drugs last week and it cost me £121.
That was the Minister's friends overcharging.
I can pay for them but what about the person on the margins? If a doctor prescribes a drug that person will have to ask the doctor if there is a cheaper drug available. I am not being emotive; they are the facts. People are looking for good health care and we would all like to deliver a good system. The only way we can do that is by trimming our costs. We can do that in a number of ways but in particular in the area we are discussing this evening. Instead, the Minister is handing over four years more when we should be talking about a reduction of four years. The European Commission says we must do this and we trot off like the proverbial lamb to the slaughter and make it possible.
The Minister will not change his attitude but I appeal to him to do so in the interests of the people of Ireland and in the interests of a good health care system. It is amazing how people change when they hop from one Ministry to another. They seem to forget about the responsibilities they had. I ask the Minister to look at this again.
There has been a reasoned argument this evening. Members are purely representing the public and that is the role of the Opposition. The Opposition must point out to the Government that they cannot literally ride roughshod over the populace. Some Members want to protect the public interest. That is why I am asking the Minister to think again; it is not capitulation, it is just taking another look. The Committee Stage gives us time to reflect and suggest amendments. I ask the Minister to reflect on this issue and do the right thing.
Might I mention that the Minister of State and the Deputies concerned are straying somewhat from the spirit of the amendment tabled by Deputy Barry. At this stage we should resolve to remain within the terms of the amendment rather than moving far afield.
I put it to my young colleague, Deputy Yates, that abuse is a poor substitute for good argument and like the old school of Fine Gael, of which Deputy O'Brien is a member, as distinct from the new school, it would be more appropriate to put forward reasoned arguments in a calm manner and not to subject Members to abuse just because they read from a script or express their views on this area. I feel that Deputy Yates did not look at the amendment put down by Deputy Barry. Indeed, I am delighted Deputy Barry has returned to the House — he had to leave to attend an official engagement — because I think he will steer the Fine Gael Party towards a more reasoned view.
I will leave again if the Minister of State keeps up that line.
With respect to the Deputy, he has vast experience in public life and Ministries——
I warn the Minister of State that I will leave.
——while Deputy O'Brien has served in the Department of Health. Deputy Yates has not had that opportunity as yet. We will try to ensure that he does not get it for a long time.
Deputy Barry has put forward an interesting amendment in which he accepts the extension of four years. He has however, included certain provisions. I should make it clear that I am not accepting the amendment, rather I am suggesting that it has been put forward in a more reasoned manner by Deputy Barry, unlike Deputy Yates who made emotive and irrational statements in Deputy Barry's absence. I hope that he will now have an opportunity of leading Deputy Yates into calmer waters and bringing him back to reality.
One would get the impression that there are only pharmaceutical companies in this country. This provision however, will apply to all companies in the high technology and computer hardware sectors; software is dealt with in the law dealing with copyright. Approximately 35 to 40 per cent of applications for patents are made by the pharmaceutical industry which is a very important industry but little regard seems to have been had to other industries who rely on patents legislation and who will benefit from this extension. Irish indigenous companies will benefit also. In relation to the pharmaceutical industry, it takes eight to ten years to get a product on to the market. One can see, therefore, given the period of 16 years, that companies had little opportunity to recoup the massive cost of research and development. Deputy O'Brien put forward a reasoned and balanced view in this regard and is correct when he says that we have carefully considered this matter. We did not decide on it overnight. We were open to receiving representations and hearing reasoned arguments but nothing that has been put forward in this House this evening would influence me to change my view in this regard. I am not accepting the amendment put down by Deputy Barry. In regard to amendment No. 73a——
We are dealing with amendment No. 73.
Amendment No. 73a is linked with it.
We will reach that amendment when we have disposed of amendment No. 73.
I will abide by your ruling.
We must dispose of amendment No. 73 before we proceed to amendment No. 73a.
I apologise to the Minister of State and the other Members for leaving the House but, as the Minister of State said, I had given an undertaking to attend another official engagement at 5.30 p.m. It seems that I may have missed the most interesting part of the afternoon. Deputy O'Brien appears to have made a balanced and constructive suggestion to the Minister of State which he would be wise to consider between now and Report Stage. That would be in the best interests of this House in terms of passing good legislation. In that spirit, I will withdraw the amendment and reenter it. I hope the Minister of State will reconsider the position between now and Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 73a:
In page 70, paragraph 3 (1), lines 41 to 47, to delete subparagraphs (a) and (b) and substitute the following:
"(a) if no notice of objection to the extension has been given within the time prescribed in that behalf by rules under the Act of 1964 or by rules of court (as the case may be) the proprietor of the patent may withdraw the petition and the term of the patent shall thereupon stand extended for a period of 4 years from the date of its expiry;
(b) if notice as aforesaid has been given within the time prescribed or if the petition is not withdrawn the provisions of the Act of 1964 shall continue to apply in respect of that petition.".
In defending his position the Minister of State suggested that this was a compromise of sorts in that it lays down a two-year period within which manufacturers can enter the playing field and prepare, with the National Drugs Advisory Board, generic products. Would he clarify at what point exactly this will come into operation and how it will work?
In fairness, I have outlined my views on the amendment and I do not want to be repetitive. I took the opportunity to do so on the amendment put down by Deputy Barry. I accept that this concept forms an important part of the Bill. We have considered this provision very carefully given that a considerable number of representations have been received from both sides of the argument. Deputy Barry also put forward a reasonable point of view. I am pressing my amendment while he has withdrawn his. In fairness, I do not want to be repetitive and should say that the position will not change even if other points of view are put forward.
The Minister of State's advisers will tell him whether this is correct or not but his amendment may be deficient. I have been advised that the words "or if any such objection has been withdrawn" should be inserted in subparagraph (a) after the words "if no notice of objection to the extension has been given" and that the words "and has not been withdrawn" should be inserted in subparagraph (b) after the words "if notice as aforesaid has been given".
I will look at that matter before Report Stage to see if the wording can be improved. I will take into account what the Deputy has said.
I will give the Minister of State the note I have received.
I will consider it.
Amendment agreed to.
I move amendment No. 74:
In page 71, paragraph 4, line 9, to delete ‘only" and substitute "any".
Paragraph 4 reads:
In the case of a patent the term of which has been extended under paragraph 2 (1) of 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..."
I am suggesting that we substitute the word "only" with "any". That would make the intention clear.
I have no objection to accepting the amendment.
It is only a drafting amendment.
That is a debatable point. As I can make no argument for not accepting it I will accept it.
Big deal.
Amendment agreed to.
I move amendment No. 75:
In page 71, paragraph 5, line 15, to delete "section 37" and substitute "the Act of 1964".
Amendment agreed to.
I move amendment No. 76:
In page 71, paragraph 7 (d), line 41, to delete "give rise to" and substitute "enjoy".
Amendment agreed to.
I move amendment No. 77:
In page 72, paragraph 7 (k), lines 21 to 22, to delete ", in accordance with the statement made under Rule 26 (1) (h) of the Patents Rules, 1965,".
Amendment agreed to.
I move amendment No. 78:
In page 73, between lines 40 and 41, to insert the following paragraphs:
"12. A patent granted under the Act of 1964 to which paragraph 1, 2 or 3 of this Schedule applies shall be revocable only in accordance with the provisions of that Act.
13. Any application for a licence under section 42 of the Act of 1964 which was pending at the commencement of this Act shall be decided under the provisions of the Act of 1964.".
Amendment agreed to.
First Schedule, as amended, agreed to.
Second Schedule agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
On Wednesday, 4 December 1991, subject to agreement between the Whips.
I have no objection to debating Report Stage as soon as possible. There is a meeting of the British-Irish Inter Parliamentary Body here on Monday, Tuesday and Wednesday. However, we will be finished at 4 p.m. on Wednesday.
The Whips will discuss this matter and I am agreeable to taking the Bill at a time suitable to the House.
We must specify a date.
Report Stage ordered for Wednesday, 4 December 1991.