Fifth Standing Committee on Delegated Legislation
Wednesday 3 November 1999
[Mr. Frank Cook in the Chair]
Draft Chartered Institute of Patent Agents Order 1999
4.30 pm
The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock): I beg to move,
That the Committee has considered the draft Chartered Institute of Patent Agents Order 1999.
I welcome you, Mr. Cook, as Chairman of the Committee, I shall not detain the Committee long.
The order concerns the right to conduct litigation and rights of audience in England and Wales. Historically, the right to conduct litigation has been the preserve of solicitors. Rights of audience have been the preserve of barristers and, to a lesser extent, solicitors. Last year, the Institute of Legal Executives became the third body to be authorised to grant its members rights of audience before certain courts.
If approved, the order will further extend rights of audience and rights to conduct litigation to a further category: fellows of the Chartered Institute of Patent Agents who have completed a master of laws course entitled ``Litigation Skills for Patent Agents''. Fellows of the Institute who are solicitors or barristers may be exempted from completing the course.
The draft order was laid before the House on 25 October. Registered patent agents already have the right to conduct litigation and have rights of audience before the patents county court and in matters of appeal from the Comptroller of Patents to the Patent Court under the Patent Acts 1949 and 1977. The order will not affect those rights.
Under the order, the Chartered Institute of Patent Agents will become the second new authorised body for the purposes of section 27 of the Courts and Legal Services Act 1990, and the first for section 28 of that Act. The order will enable the institute to conduct litigation to members in the Chancery Division of the High Court—including its Patent Court—and the county court. It will also allow the institute to conduct appeals from the patents county court, the county court and the Chancery Division of the High Court on matters relating to the protection of inventions, designs, technical information and trade marks, and on matters regarding passing off and related ancillary matters.
The order will enable the institute to grant rights of audience in hearings in chambers on interlocutory matters ancillary to intellectual property litigation. The institute will be able to grant those rights to suitably qualified fellows who have completed the litigation skills for patents agents course. That new course will develop a knowledge base to supplement that which is already the subject of examinations conducted by the institute. The institute expects about 20 individuals to qualify initially, with numbers increasing as more fellows take the qualifying course.
The authorisation of the institute to grant such rights was welcomed by those who considered the application, and will extend the rights of audience and rights to conduct litigation that were allowed under the 1990 Act. Procedures under the Act, however, proved to be cumbersome and susceptible to delay, which is why the Government used the Access to Justice Act 1999 to reform the system of applications.
The application is also a deregulation measure, under which clients of patent agents who need to use the courts will instruct a single person. The patent agent will not have to instruct a solicitor and/or barrister to progress his or her client's case. That ought to lead to lower costs for businesses—especially small and medium-sized companies—as an unnecessary tier of expense based on restricted practice will be cut out. The patent agent will be able to go straight to court: I hope that all Committee members welcome that.
The Access to Justice Act, which received Royal Assent in July, is a blueprint for changing the way in which legal services are provided. All barristers and solicitors will acquire full rights of audiences on call to the Bar or admission to the Roll. For the first time, advocates and litigators will have a statutory duty to act with independence in the interests of justice. That will apply to patent agents under the order, should Committee members pass it. In addition, the Bar Council and Institute of Legal Executives will become authorised bodies for the granting of rights to conduct litigation. Those provisions came into force on 27 September.
Further provisions in the Act, which will come into force in January, will change the way in which the bodies may be authorised to grant rights of audience and the right to conduct litigation, and the way in which rules governing those activities may be amended.
The Lord Chancellor's Advisory Committee on Legal Education and Conduct—ACLEC—will be replaced by a new legal services consultative panel. The panel will have a role similar to ACLEC, but the process for approving changes to the authorised bodies' rules will be simplified and improved. The panel will be more streamlined and will consist of a chairman and about eight members, rather than the 17 members of ACLEC.
One consequence of the success of the institute's application is that we have proposed that fellows who become authorised advocates or litigators should come within the jurisdiction of the legal services ombudsman for those activities that they carry out under the order—activities in the higher courts. The legal services ombudsman oversees the handling of complaints about members of the legal profession. The support and advice of the ombudsman will be important in seeking to ensure that the standards of service by fellows of the institute are maintained. A separate order to that effect, which will proceed by way of negative resolution, has been laid before both Houses. The institute has its own complaints system. Complaints about patent agents are dealt with by the litigator conduct committee. I have confidence in the way in which complaints are handled, and I am sure that patent agents will not increase the burdens on the ombudsman.
The Government are fully committed to ensuring that all new legislation is fully compliant with the Human Rights Act 1998. I am satisfied that the provisions of the order are compatible with the convention.
4.35 pm
Mr. Nick Hawkins (Surrey Heath): I echo the Minister's welcome to you, Mr. Cook, as you chair our proceedings this afternoon, which I hope will be brief.
On behalf of the official Opposition, I welcome the order. The powers for the order to be made arise under the Courts and Legal Services Act 1990, which is Conservative legislation. That was one of several valuable legal reforms that occurred while my hon. Friend the Member for Solihull (Mr. Taylor) was Parliamentary Secretary to the Lord Chancellor's Department.
Mr. John M. Taylor (Solihull): My hon. Friend extends a courtesy to me, but I did not go to the Lord Chancellor's Department until 1992. However, my hon. Friend is not that far out, because I was Whip on the Committee that considered the 1990 Act.
Mr. Hawkins: I am grateful for my hon. Friend's correction. I knew that he had been involved in the matter.
I have two reasons for welcoming the fact that patent agents now have greater opportunities. For a number of years, I was a corporate lawyer, and for part of that time I was responsible, among other things, for dealing with trade marks. The Minister made it clear that trade marks are dealt with by the Chartered Institute of Patent Agents.
For two years, I was the company legal adviser for Access, then the largest credit card organisation in the UK; it was later broken up into its constituent parts, when the four banks that founded it decided to take the issuing of credit cards back under their own control. During that time, I worked closely with those responsible for defending the Access trade mark. As the company legal adviser, I was heavily involved in those issues and I am therefore well aware not only of the complexity of such matters but of the skill of trade mark and patent agents. I had the opportunity to work with many of them, both then and subsequently; I moved to another company, where I still occasionally, although more rarely, dealt with trade mark matters.
The second reason for my being interested in the valuable work of the Chartered Institute of Patent Agents is that both my parents were research scientists. My father was involved in the patenting of many developments in powder technology and chemical engineering during his many years as an academic scientist and as a senior scientist with Unilever. One of the most important lessons that I learned, as I came to know more about the law, was that it is very important for any inventor—whether he works privately in a garden shed, as does Trevor Bayliss, the designer of the wind-up radio, whose work has been so helpful in third-world countries, or whether he works for a massive international PLC—to protect his rights by patent.
From those two personal experiences, I am well aware of the value of the work done by the institute and its members. Therefore, it is with pleasure that I welcome the fact that the institute will have such rights; it is exactly what the previous Conservative Government intended under the Courts and Legal Services Act 1990. I am delighted that the Government are continuing our work. I warmly welcome the draft order.
4.39 pm
Mr. John Burnett (Torridge and West Devon): I, too, welcome you, Mr. Cook. You have patiently chaired Committees that have dealt with legal matters in the past. I shall not keep the Committee long this evening.
I am grateful to the Chartered Institute of Patent Agents, especially its secretary, Mr. M. C. Ralph for the information with which he has so promptly provided me. The institute is an old organisation. It was founded in 1882 and received its royal charter in 1891. It has provided me with a precis of the qualifications required to be a patent agent and with details of its registration procedure.
I understand that registration as a patent agent is different from membership of the institute and that the right to practise as a patent agent is not restricted to members of the institute. However, under the draft order, the institute will be the only body authorised under sections 27 and 28 of the Courts and Legal Services Act 1990. Will the Minister confirm that the draft order will enable the institute to authorise its members only for the purposes of sections 27 and 28? Will he also confirm that trade mark agents do not fall under the aegis of the institute, although I understand that about 600 out of 900 members of the Institute of Trade Mark Agents are also patent agents?
The draft order will be in the public interest first and foremost because it will promote competition and be in the interests of the consumer. We in Britain have an enviable record of invention. In fact, we probably lead the world in our inventive capacity. Of course, the slowness of our large institutions in exploiting our inventors' products has been questioned, but now is not the proper time to debate that.
Our inventors and original thinkers must be able to protect their intellectual property as effectively and cheaply as possible. I suspect that it has been necessary for patent agents to conduct litigation through solicitors, and thence counsel. The draft order presumably dispenses with that necessity, and I hope that the Minister will confirm that. I also hope that he will confirm that members of the institute either have, or will have, direct access to counsel.
The Committee should be provided with further information. Presumably, the institute will be bound by certain rules of conduct for any litigation authorised under the draft order on matters such as the avoidance of conflict of interest, a bar to acting on both sides, first duty to the court and so on. Competition should be fair, which means that those organisations and individuals who provide the service should compete on similar terms and conditions.
What provisions exist for clients to question patent agents' charges? Will clients be entitled to apply for taxation of costs? How will they be able to question costs if they feel aggrieved because those acting for them have overcharged? What complaints procedure will apply in the unlikely event that any member of the institute transgresses the regulations to which I have referred, or, for that matter, any other rules or regulations?
I pay tribute to the many original individuals who conceive so many useful ideas, inventions and new products, and I hope that by enacting the order we shall in some way help them. I ask the Minister, en passant, to mention to the Chancellor of the Exchequer that we could have a more favourable fiscal regime for research and development.
4.45 pm
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