Standing Committee D
Tuesday 15 June 2004
(Morning)
[Mr. David Amess in the Chair]
10.30 am
The Parliamentary Under-Secretary of State for Trade and Industry (Mr. Gerry Sutcliffe): I beg to move,
(1) during proceedings on the Patents Bill [Lords] the Standing Committee shall, in addition to its first meeting on Tuesday 15th June at 10.30 a.m. meet—
(a) on Tuesday 15th June at 2.30 p.m,;
(b) on Thursday 17th June at 9.25 a.m. and 2.30 p.m.;
(2) the proceedings shall be taken in the following order namely, Clauses 1 to 5, Schedule 1, Clauses 6 to 15, Schedules 2 and 3, Clauses 16 and 17, new Clauses, new Schedules, remaining proceedings on the Bill;
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5 pm on Thursday 17th June.
My first task is to welcome you to the Chair, Mr. Amess, and I take great pleasure in doing so. I have not served under your chairmanship before, but I am sure that your leadership and skill will get us through the Bill effectively and efficiently. I also welcome all members of the Committee.
On Second Reading, hon. Members on both sides of the House broadly welcomed the Bill. I hope that that will put us in good stead as we approach the detailed scrutiny. I wish the Committee well in its deliberations.
Mr. James Arbuthnot (North-East Hampshire) (Con): May I also say how honoured we all are to be under your chairmanship, Mr. Amess?
A matter of huge importance was raised on Second Reading, namely whether we were talking about ''pat-tents'' or ''pay-tents''. The hon. Member for Newport, West (Paul Flynn) led us down the garden path, I regret to say; he suggested that a short 'a' would allow his constituents to get home more quickly for tea. That may be true. The Minister then told us that the pronunciation depended on which area of the country one came from, but I am afraid that that, too, is incorrect. I have now been informed that it is pronounced ''pat-tents'', because it comes from the Latin patens, meaning open. When one discloses a secret, one is making it open, and one is therefore granted letters on the opening of it. That sounds hugely convincing.
Mr. Sutcliffe: I am grateful to the hon. Gentleman, who has already started scrutinising. I will take his word on the pronunciation of patent. Those who read the report of Second Reading were even more confused, because hon. Members also talked about the parent Bill and the patient Bill. I am afraid that we caused difficulties.
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Mr. Arbuthnot: It is good to hear that the Bill is being talked about, at least in circles in which it matters, anyway.
The other issue I want to raise is the order in which we are to consider the clauses. Most unusually, the Bill deals with patents just as a regulatory reform order is going through its stages, so the measures that the Committee is considering might be changed under regulatory reform procedures, and although measures are being considered under the order, we might change them in Committee. That is potentially unsatisfactory. A note from the Library says that it has been assured by parliamentary counsel that it is possible to refer in a Bill to legislation that does not yet exist. I find that unsatisfactory, too; it is like trying to legislate on quicksand. Will the Minister comment on the fact that two groups of people are considering the same body of law, with potential consequences for both groups?
Brian Cotter (Weston-super-Mare) (LD): I, too, am pleased I am to be under your chairmanship, Mr. Amess. I was tempted to go out into the sunshine this morning, but I thought, ''No, this Committee will be so lively and well run that I must attend,'' so here I am.
Patently, we have come to a decision on whether we should say ''pat-tents'' or ''pay-tents''. I am already beginning to forget which it is; ''pay-tents'', I think. I congratulate the right hon. Member for North-East Hampshire (Mr. Arbuthnot) on having done the work on that.
As regards the timing in the programme motion, I expressed my concern on Second Reading that we were waiting for a key report. It had been promised to us in November, March and April; there is now talk of it arriving in the summer. It worries me that such a key report will not be available before the end of our discussions on the Bill. Apart from that, however, I am happy to proceed on the basis of the programme motion.
Mr. Sutcliffe: I am grateful to hon. Gentlemen for making their points in the way that they did. The right hon. Member for North-East Hampshire made a point about the regulatory reform order and the discussions that are taking place. I can assure hon. Members that there are no difficulties. I acknowledge and accept his concerns that there could be problems, but because the Bill has been drafted in the full light of everything that has taken place, I do not perceive that there will be any. As he rightly explained, it might be something for the House to examine; I understand that a procedure such as we are discussing has been adopted before. The provisions of the Bill that refer to the regulatory reform order are minor and will not come into force until that order does. I hope that that makes the matter clearer for him.
The hon. Member for Weston-super-Mare (Brian Cotter) mentioned the report. I said that it would be produced in the summer and that is still the case. Although I acknowledge his concerns, I still think that we have the opportunity to scrutinise a Bill that has
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been well consulted on. I hope that the Committee will be able to do that and will support the programme motion.
Question put and agreed to.
The Chairman: I remind hon. Members that adequate notice should be given on amendments. As a general rule, my fellow Chairman and I do not intend to call starred amendments, including any such amendments that may be reached during an afternoon sitting. Clause 1
Methods of treatment or diagnosis
Brian Cotter: I beg to move amendment No. 9, in clause 1, page 1, line 20, at end add— '(5) The comptroller will undertake periodic review of the efficacy of subsection 1 above in providing protection against monopolisation of scientific discoveries in humane genome technology relating to subsection (1).''.'.
The amendment aims to add a new subsection to the end of the clause. It is important that I emphasise that we are talking about a periodic review, which is a response to concerns in the wider world about the issue. DNA patenting has been allowed under European, United States and Japanese law since the first DNA patents were filed 20 years ago. To date, thousands of DNA molecules, cells and proteins produced by genetic engineering have been patented. Many medicines that use patented DNA are on the market. They include treatments for cancer, anaemia, diabetes and vaccines for hepatitis B.
Some patient groups, such as the Genetic Interest Group, and many of those involved in research into genetically inherited disorders, have welcomed patenting. They see it as a spur to promote research into rare inherited diseases and as a way of putting the newly acquired genetic information in the public domain. However, there are concerns that the creation of monopoly rights over genes and the royalties that are payable to patent holders may lead to prohibitive costs for users of screening services.
Dr. R. G. Elles of the United Kingdom Clinical Molecular Genetics Society, writing in the Bulletin of Medical Ethics in January 1997, warned that:
''The issue of gene patenting first came to our attention through a demand for royalty payments on the use of the cystic fibrosis gene sequence from the Hospital for Sick Children in Toronto in Canada in early 1993 . . . negative effects of gene patenting can be recognised and measures need to be taken to control them.''
Therefore, many argue that rather than providing incentives for research, the patenting of living material merely restricts research by other laboratories. That is a key and important point, which the Minister should address.
An EU directive on the legal protection of biotechnological inventions was translated into UK law in the Patents Regulations 2000. The new regulation was supposed to help the biotechnological sector by introducing a legal framework based around the patent system which would allow biotech companies to make appropriate decisions about
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investment and research, and encourage innovation by allowing them to benefit from the commercial risks that they were taking.
None the less, hon. Members expressed concern on Second Reading about the ambiguity of the regulations and exactly what could be patented. The Minister nobly tried to quell those fears by stressing that raw, fundamental information on the genetic code was not patentable. He also stressed that it would be different if the genetic material were isolated from its natural environment by means of an invented process involving a new technical solution. Therefore, certain gene-based inventions might be patentable provided that they satisfied the normal criteria for any invention. However, Dr. Lynne Jones was less concerned about a gene that could be patented just because it had been discovered than about the simple patenting of that discovery covering all uses of that gene, regardless of whether they were known at the time of the patent.
That concern was repeated a couple of years later in a report published by the Nuffield Council on Bioethics in July 2002, which concluded that companies were being granted exclusive rights over the use of genes in diagnosis, research and treatment, thus preventing other scientists from working on any aspect of that gene. The Nuffield report concluded that, as a result of that, research into AIDS and diseases such as cancer and malaria was being held up because patents on human genes were being granted too readily to pharmaceutical companies. I appreciate pharmaceutical companies' need to invest and to put a lot of money into making progress so that they can take advantage of their work, but that, none the less, is a genuine concern.
When the Government were implementing the EU directive on the legal protection of biotechnological inventions in 2000, they agreed that that issue should be addressed and that they would not wish to introduce regulations that would allow a company to control a range of processes that were consequential to an initial patent, and thus prevent valid and proper applications taking place in the future. That is a key point, and, difficult as it may be to see a way around it, it has to be addressed.
The Government said that they would ask the committee of the World Intellectual Property Organisation, a special UN agency, to investigate the matter. What is the outcome of that request? Will they reassure us that there is sufficient protection under UK law to ensure a proper balance between promoting innovation and ensuring that future research is not unreasonably restricted by the patents process?
This is a can of worms and a difficult issue. My amendment asks for something to which the Minister could say no. However, I repeat that we would be asking the comptroller to
''undertake periodic review of the efficacy of subsection 1 . . . in providing protection against monopolisation of scientific discoveries''.
I hope that the Minister will either look at that and return to it before the end of our proceedings, or accept that there is a big problem. I look forward to his response.
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10.45 amMr. Arbuthnot: On a question of typography, I think that the amendment is meant to read ''human'' rather than ''humane'' genome technology.
Although I am sympathetic to the points raised by the hon. Member for Weston-super-Mare, I am not attracted to the method that he has chosen to address them. I do not believe that the Patent Office can act as a branch of the Competition Commission. It has expertise in many areas, but monopolies is not one of them. I am not quite sure what the Patent Office would do if one of the reviews suggested in the amendment found that a monopoly did exist. The purpose of the Patent Office is limited, namely to protect new inventions. Although the consequences of that protection are a monopoly in certain terms for about 20 years, it would be beyond the scope of the Patent Office to police the consequences by trying to root out monopolies.
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