Intellectual Property Bill [HL]

Lord Walker of Gestingthorpe Excerpts

Wednesday 22nd May 2013 Lords Chamber

[Lord Walker of Gestingthorpe]

My Lords, coming back to your Lordships’ House as I have, after three and a half years’ hard labour in the Supreme Court on the other side of Parliament Square, I have been touched by the friendliness and helpfulness of so many of your Lordships and the officers and staff of the House, whether or not they had any acquaintance with me in my earlier incarnation as a Law Lord. When I was a Law Lord I followed the practice of some, but not all, of my colleagues in sticking to the day job. That is why, more than 10 years after I became a Member of your Lordships’ House, I am making my maiden speech today. It will, I fear, be a very modest contribution, which will disappoint some of your Lordships, who have made kind remarks.

My first serious encounter with intellectual property law was about 20 years ago, when I was first appointed as a High Court judge in the Chancery Division, and the allocation of responsibilities between judges in that division was the task of the Vice-Chancellor, my noble and learned friend Lord Scott of Foscote, who I see is lurking behind me. He rang me up and said he was going to make me a judge of the Patents Court. I should explain, perhaps, that the Patents Court is a sub-division of the Chancery Division, and that most of its work is done by judges who have been patent experts all their lives. However, because patent litigation goes on for a long time and judges cannot sit in judgment on cases on which they have advised, there is a need for some supernumeraries. I said to the Vice-Chancellor, “I ought to tell you that I do not have a single O-level in any science subject”. I am not proud of that, but it is true; I had a very old-fashioned education. This carried no weight at all with the Vice-Chancellor. He said that I would find it an interesting intellectual experience, and hung up on me. It has indeed been a most interesting intellectual experience and I have learnt just a little bit of science along the way.

Maiden speeches are not meant to be controversial. I hope it is not controversial to say that one of the most important and problematic provisions of the Bill is Clause 16, which introduces a new Section 88A to the Patents Act 1977, and provides for a unified patent court. This is a remarkably bold step forward, on which successive Governments are to be congratulated, because it has been a very long haul indeed. It is a long, and in many ways sad, story. The European patent convention, which was signed in Munich in 1973, was in fact a pan-European measure; it was not an EU measure at all. Part of the difficulty, I suspect, is that it took the EU a very long time to recognise that the Community patent convention was simply dead in the water, because it was signed by only seven member states, including the UK, when unanimity was required. It is perhaps right to say that the failure of the EU to recognise that it was dead in the water is one of the reasons why it was been such a long and hard struggle to get to the agreement signed in Brussels last February.

One difficulty under the European patent convention was that, although a single application produced a bundle or sheaf of patents good in each contracting state, enforcement of the patent rights required litigation in different countries. Where a European patent was attacked as invalid or enforced in infringement proceedings in the courts of a number of different states, there were several well known—indeed, I might say notorious —cases in which national courts administering the same law under the European patent convention reached different conclusions. In particular, there were several cases in which the courts of Germany and the Netherlands reached different conclusions from those reached in the courts of England.

That has sometimes been explained by the very different procedure that applied in different member states. Typically, in this country, there would be a long trial—long oral proceedings with, perhaps, days of cross-examination of expert witnesses—whereas, in Germany or the Netherlands, the procedure would be conducted much more on paper. It is therefore a truly bold and radical move that jurisdiction is now to be divided not by national boundaries but by sectors of the fields of science and technology in which patents are granted. It is a bold and unpredictable move. As so often, I suggest that the devil will be in the detail. For instance, we are told that there are to be procedural changes made in the new unified patent court. It will be important to see them.

As the clause would enable the Secretary of State to act merely by a draft order that requires the approval of both Houses, it will be important to see as much as possible in Committee what will be in that vital order placed before both Houses by the Secretary of State to understand just how far the unified court, as far as it sits in London—or, as it may be, in Edinburgh—will adopt a different procedure from that applied in the court at present. All those are matters that I hope to follow closely in the Bill’s later stages.