The Gazette 1983

GAZETTE

APRIL 1983

the text of the Act in full, together with its schedules and

offers lengthy and well-researched commentary and

interpretation on each section. The booklet commences

with a general note giving the history of devolution in

Northern Ireland from 1920 to date, carrying references to

all the major legislation leading up to the 1982 Act. Each

Section is then dealt with separately with an explanatory

note on each. While the Act has only 7 Sections and is

considerably shorter than most pieces of legislation, Mr.

McGuire is to be complimented on his excellent

commentary which will be of considerable value to both

lawyer and lay-man alike.

While the Act is short, it is quite complex. The Act

amends the Northern Ireland Constitution Act of 1973

and the Northern Ireland Assembly Act of the same year.

The purpose of the 1982 Act is to provide for a staged

devolution of power to the province of Ulster. In a general

note of explanation to the background leading up to

enactment, Mr. McGuire, obviously ayare of the delicate

political background to the "Irish question", treats his

subject thoroughly and dispassionately. However, while

the publication date was 25th November 1982, Mr.

McGuire ends his short reference to relations between the

Republic and the United Kingdom with the Executive

decision of both Governments in November 1981 in

establishing the Anglo-Irish Inter-Governmental Council.

It may not be appropriate to a publication of this sort to

comment on what, after all, is a rather changeable

relationship between the two jurisdictions, but Mr.

McGuire does quote the Labour Front Bench Spokesman

commenting favourably on the Bill in Hansard. TWs

quotation is left without comment from the author, but its

inclusion appears to be intended to show the political will

to obtain "cross-community support necessary for

devolution". I would not have thought that much

semblance of this support existed at the time of

publication.

On a more general point, this type of commentary

should be required reading for the draftsmen of

explanatory memoranda on Irish legislation. Such

explanatory memoranda are rarely of much practical use,

but a commentary of the sort written by Mr. McGuire

would be of tremendous value.

The publishers are also to be complimented on their

excellent presentation of this booklet. An extension of this

idea to Irish legislation would be most welcome.

Gary Byrne

Review of Terrell on the Law of Patents - 1 3 t h

Edition. Sweet & Maxwell Ltd., London. 7 00 pp. £ 4 0 . 00

(Sterling).

The first edition of this indispensable text-book for the

practitioner appeared in 1884. The present edition has

been necessitated by the sweeping changes introduced

into the United Kingdom by the Patents Act 1977. This

Act has not only amended the Patents Act, 1949 in many

fundamental respects: it also introduces provisions which

enable the United Kingdom to fulfil its obligations under

the Patent Co-Operation Treaty of 1970, the European

Patent Convention of 1973 and the Community Patent

Convention of 1975.

. , . .

The principal changes highlighted by the new edition

are. the following. A statutory definition of patentability

has been introduced conforming with that contained in the

European Patent Convention changing radically the

previous statutory definition and interpretive case law.

The new Act removes the ground of invalidity known as

prior claiming. It introduces a statutory definition of

infringement which replaces the former case law based

upon the language contained in the form of granted Letters

Patent for inventions. A further change is to increase the

period of patent protection from 16 to 2 0 years with a con-

comitant abolition of the right to apply for an extension of

the term of a patent. The new Act also abolishes the

previous pre-grant patent opposition procedure and

patents of addition. The Act having been passed by a

Labour

Government

not

surprisingly

introduces

provisions regarding employees' inventions including the

right of the employee to an award of compensation in

certain circumstances for inventions made by him in the

course of his employment. The other noteworthy

innovation effected by the 1977 Act is the abolition of the

former Patents Appeal Tribunal and the creation of a new

Patents Court as part of the Chancery devision of the High

Court.

Part 2 of the Act has introduced the most fundamental

change to enable effect to be given to three International

Conventions already mentioned. The Community Patent

Convention has not yet come into operation. The

European Patent Convention of 1973 established a

European Patent organisation including a European

Patent Office situated in Munich empowered to grant so-

called European patents as provided for under the

Convention. Thus it is no longer necessary for an inventor

to file separate national applications in those European

countries which have ratified the European Patent

Convention. Instead the Applicant has the option of filing

one application at the European Patent Office and

designating any of the contracting states of the Convention

where patent protection is desired. If, following

examination by the European Patent Office, the

application is accepted, a European patent is granted for

each of the designated states and thereafter the European

patent is treated in the State concerned as having the effect

of and being subject to ine same conditions as our national

patents granted by that State.

With the enactment of the Patents Act, 1977 the

exclusive monopoly enjoyed by the U .K. Patent Office no

longer exists but is now shared with the European Patent

Office. The enactment of the Patents Act 1977 therefore

constitutes a striking diminution in British sovereignty

with profound consequences for the future development of

indigenous British Technology.

Only

government

instability in this country has prevented the enactment of

similar legislation and moreover the derogation from

sovereignty implicit in the British legislation may not so

easily be achieved in this country with its more rigid

constitutional provisions touching on the question of

sovereignty.

The foregoing are some of the complex new features of

U .K. Patent law dealt with by this latest edition of Terrell

and it seems safe to predict that the pace of judicial

interpretation will require further editions in the future and

in this connection it is to be hoped that the publishers will

consider the printing of a loose leaf edition which can be

readily up-dated with supplements to take account of

changes of official practice and judicial interpretation.

Martin Tierney