My Lords, I am very grateful to the Minister for his very full and careful response. However, the noble Lord, Lord Stevenson, has put his finger on the point. I thought that what the Minister said was entirely reasonable. I heard what he said about TRIPS and two steps. However, when I read the actual wording of the Bill, I do not see that. I see a kind of blancmange where the IPO and the comptroller can take this over and revoke a patent after an opinion without a very clear step between the opinion and the revocation procedure. I am not an expert patent lawyer, and I shall consult a number of organisations, including the Law Society and the Chartered Institute of Patent Attorneys, but it seems to me that they are entirely right to be concerned about the Bill’s wording.
I entirely accept that the Minister, absolutely in good faith, has read out how he and the IPO believe that this is meant to operate. However, we operate on the basis of the rule of law. The Minister, in a way, has made a Pepper v Hart statement whereby, if we were to have a judicial review of the IPO when revocation had taken place and everything had gone pear-shaped for a patentee, the patentee could rely on the Minister’s statement. I would much prefer to amend the Bill, and I cannot for the life of me see why if it is the intention
to have revocation proceedings only in clear-cut cases where a patent is invalid for various particular reasons, it cannot be expressed in the Bill.
The bit of the Minister’s response that I found somewhat disingenuous was somewhat like political jujitsu, when he said that this is all for the benefit of SMEs. I thought that that was a cunning reversal of the arguments because, if we are not careful, SMEs will be faced with the power of a determined major company that wants to make sure that it gets opinions in place. It could then bring revocation proceedings that could be extremely threatening to some small patentees. That is not entirely helpful to the SME.
We need to chew over the Minister’s words, but this is a very serious issue for the professionals involved. They really understand the steps that need to be taken. They understand, as I do not, all the intricacies of TRIPS, they recognise novelty and they have to advise on such issues on a daily basis. They are extremely concerned that this is a woolly area that gives the comptroller too much power. However, we will no doubt come back to this on Report. In the mean time, I beg leave to withdraw the amendment.