Intellectual Property Bill [HL]

Lord Young of Norwood Green Excerpts

Thursday 13th June 2013 Grand Committee

[Lord Clement-Jones]

My Lords, I am indebted to the Chartered Institute of Patent Attorneys for having drawn my attention to the issues on Clause 14. Generally, the institute welcomes this proposal, but considers that it needs to be tightened up. If a product has a patent number or patent application number on it, it is easy for any third party to identify the patent or application and make any such subsequent inquiry as it needs to. If, however, all that is marked on the product is an internet link, it could turn out to be a considerable job even to identify the patent or application. The internet link, for instance, could be to the home page of a company and the patent number could then be buried deep in the sublevels of the internet site. Alternatively, the link could be to a page where all a company’s patents and applications are listed, but in an unsearchable format. This proposal could provide a way for a company to conceal the information that is supposed to be present on the product. To ensure that the internet link provides the required information directly, I hope that the Minister will see the virtues of this amendment. I beg to move.

[Lord Young of Norwood Green]

My Lords, I know that imitation is the sincerest form of flattery, and I doubt that the contribution of the noble Lord, Lord Clement-Jones, is copyright-protected. However, it would not be very good if, having found the same source, I repeated exactly the same words. We share the sentiments of the noble Lord, Lord Clement-Jones. We think that the government proposal is good but, in this age of the internet, it could be made even more effective. On those grounds, we support this amendment and look forward to the ministerial response.

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Moved by

[Lord Young of Norwood Green]

25C: Clause 16, page 16, line 14, at end insert—
“( ) In making an order under this section, which confers jurisdiction on a court, removes jurisdiction from a court or varies the jurisdiction of a court, the Secretary of State shall—
(a) ensure he takes into account the views of—(i) HM Courts & Tribunals Service,(ii) the Scottish Court Service,(iii) the Northern Ireland Courts and Tribunals Service; and(iv) any other appropriate body;(b) where the number of patent cases is such as to meet the requirements as set out in Article 7 of the Agreement on a Unified Patent Court, confer local divisional court jurisdiction on—(i) in England and Wales, the High Court;(ii) in Scotland, the Court of Session;(iii) in Northern Ireland, the High Court.”

[Lord Young of Norwood Green]

My Lords, we welcome the introduction of the Intellectual Property Bill and are supportive of its policy intent and objectives, particularly as it provides for the power to establish a unified patent court, giving effect to the European agreement made in February 2013, which we also support.

Clause 16 amends Section 89 of the Patents Act 1977 and expressly provides the Secretary of State with the power to make an order conferring divisional jurisdiction on, or removing jurisdiction from, a court. With this amendment, we are suggesting that before this power is used, the Secretary of State ought to consult with stakeholders.

At present, under Article 7 of the Agreement on a Unified Patent Court, each contracting member state may request and establish one division of the court of first instance of the unitary patent court within its jurisdiction for every 100 patent cases in each calendar year during three successive years prior to or subsequent to the date of entry into force of the agreement. This is subject to a maximum number of such divisional courts per jurisdiction of four. We note that in the event that the UK jurisdiction as a whole has a sufficient number of patent cases to merit more than one such divisional court within the UK, the Secretary of State will have the power to designate other courts, which need not be in London.

At present, the Court of Session currently has exclusive jurisdiction in Scotland over patent cases, including UK and EU-UK patents. If it were to lose this jurisdiction in respect of the new unitary patent, which is of course designed to eventually supersede the current European patent and possibly national patents, patent litigants in Scotland would be forced to litigate their relevant patent rights elsewhere in the United Kingdom or further afield in the EU. That would add significantly to their costs and to their overall business burdens and administration. We believe that at least two divisional courts might be situated in the UK as a whole and suggest that one might be based in Scotland. There seems to be potential to ensure that future patent litigants who operate in the Scottish jurisdiction are not unduly disadvantaged.

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[Viscount Younger of Leckie]

My Lords, the amendments tabled by the noble Lords, Lord Stevenson of Balmacara and Lord Young of Norwood Green, relate to the unified patent court. I will address each amendment in turn.

Amendment 25C seeks to ensure that the Secretary of State takes account of the views of the courts services and any other appropriate body when using the power to confer or amend the jurisdiction of a court. These bodies are already closely involved in the implementation of the unified patent court. Establishing this court is an enormous task that requires resources and expertise from across government. It is for this reason that the Government have set up a task force responsible for UK implementation of the unified patent court agreement. This task force is a joint endeavour between the Department for Business, Innovation and Skills and the Ministry of Justice, and I can assure noble Lords that Ministers and senior officials from each department are fully engaged in this matter.

Officials from Her Majesty’s Courts and Tribunals Service are leading on work to establish the UK-based divisions and on the discussions with European partners through the preparatory committee of the unified patent court. Similarly, officials from the Ministry of Justice are leading the work for the UK on the selection and training of judges for the unified patent court. The devolved Administrations in Scotland and Northern Ireland and the courts services in those jurisdictions are represented on the steering board which oversees the work of the task force. Noble Lords may be interested to learn that the Chancellor of the High Court and the patents judiciary in England and Wales are also involved in the work of the task force. The judiciary is represented on the steering board of the task force, and officials meet the judges on a regular basis.

I can confirm that the Government are consulting the Administrations in the crown dependencies and the British Overseas Territories on whether they wish the unified patent court agreement to apply to their territories. This forms part of the usual procedure for ratifying the agreement.

Given this close engagement across government departments and with the devolved Administrations, I trust that noble Lords will agree that the views of all concerned will be taken into account when implementing the unified patent court agreement.

Amendment 25C also seeks to ensure that local divisions of the unified patent court will be set up in each jurisdiction of the UK. I appreciate the arguments in favour of setting up a local division in England and Wales, Scotland and Northern Ireland. Ensuring local access to justice is a key element of the unified patent court, and this is why the agreement makes provisions for setting up local divisions. Let me be clear that no decision has yet been made about how many local divisions the UK will host and where those divisions may be located. Contracting states of the unified patent court agreement are not obliged to host a local division. Local divisions can be set up and disbanded upon request by a contracting state. These requests will be considered by the body that will govern the administration of the unified patent court. Noble Lords may also be interested to learn that it will be possible for a local division to sit in different locations as the need arises. A travelling local division could provide an alternative to hosting more than one division. This amendment would fix in primary legislation the number and location of any local divisions the UK may host. It is undesirable and unnecessary to be prescriptive in this case as it would restrict the UK in the administration of any UK-based local divisions in a manner not provided for in the unitary patent court agreement.

Amendment 25D raises a number of points. First, the amendment would require the Secretary of State to consider the need for “reasonable” access to courts across the United Kingdom. As I have already said, the Government are working closely with the devolved Administrations in Scotland and Northern Ireland to ensure that the needs of users throughout the UK are addressed.

Secondly, this amendment places a limitation on how the power may be used to require the payment of a fee. As it stands, Clause 16 is intended to account for various circumstances where a fee might be required. The Government do not currently anticipate that fees for the court will be paid directly to any government department. However, the details of the financial arrangements of the court are still being negotiated through the preparatory committee that has been set up by the contracting states of the unified patent court agreement. It is anticipated that court fees will be paid directly to the unified patent court. A change to UK law to facilitate the payment of a fee to the court, as proposed by Amendment 25D, is not required. The agreement sets out high-level principles for how the unified patent court fees will be decided, but it will be for the members of the preparatory committee, including the UK, to agree the level of court fees. In agreeing the level of fees for the court, the preparatory committee will need to balance the need to ensure that the court is accessible to users with the requirement that the system will eventually be self-financing. Ensuring the system is accessible and eventually self-financing is a priority for the UK, and the final details will be carefully considered before we ratify the agreement.

Thirdly, this amendment raises the issue of how the power may be used to align UK law with sections of the unified patent court agreement. As it stands, Clause 16 is intended to ensure that provisions of the Patents Act which relate to national patents may be aligned with equivalent provisions in the unified patent court agreement should this be necessary. For example, it may be desirable to align the law on infringement so that the same provisions apply for European bundle, unitary and national patents. This may be necessary to avoid a situation where patents valid in the UK will be subject to different infringement laws depending on whether they were national patents granted by the IPO or European rights granted by the European Patent Office. The unified patent court agreement does not make any provisions for national patents so it is necessary to ensure that the power conferred specifically allows for this eventuality. This amendment would not allow such an alignment to be made because the power would be restricted to giving effect to the provisions of the agreement.

Finally, this amendment would remove the ability to use the power conferred to amend any enactment other than the Patents Act. This would be an important omission from the scope of the power to ensure that the UK can fully implement the unified patent court agreement, which must be avoided. In light of all that I have highlighted, I ask noble Lords not to press their amendments.

[Lord Young of Norwood Green]

I thank the Minister for that very comprehensive and constructive response. He has shed light on a number of areas that we were concerned about, especially the inclusion of Scotland on the steering board. He talked about judges being trained. Do we have a figure for that yet or are we still determining the need? Other than that, the Minister certainly covered the waterfront, so to speak, and we will obviously read his response carefully. I welcome his openness and the range of the response. Given that, I beg leave to withdraw the amendment.

Amendment 25C withdrawn.