Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Saturday, 16 December 1905

Mr WATSON (Bland) - I do not profess to be able to understand the full bearing of the whole of these proposals, but I do know of two specific cases in which applicants for patents have been placed in a most unfortunate position through no fault of their own, but owing to a difference of opinion as to the interpretation of the law. During the time that the Act was being passed through this Chamber, the question was raised as to whether we should not allow applications to be lodged before the commencement of the Act - the time at which it would be convenient, after the organization of the office, to have full effect given to the Act. In consequence of that, section 29 was inserted. That section provides -

Applications for patents may be lodged at the Patents Office immediately after the Commissioner is appointed, notwithstanding that this Act has not then commenced, and all applications so lodged shall have priority as prescribed, and the lodging of an application under this section shall have the like effect as the lodging of an application after the commencement of this Act ; but any patent granted pursuant to the application shall be dated as of the day of the commencement of this Act.

If honorable members will refer to section 67 of the principal Act they will see that a period of sixteen months after the lodging of the application is allowed during which period applicants may proceed with the payment of fees and apply for the sealing of their patents.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I should not object to a specific case being dealt with.

Mr WATSON - In the case to which I refer the applications were lodged under section 29 before the Act came into operation. They then allowed about fourteen months from the commencement of the Act to elapse before they asked for the sealing of their patents; in other words, they construed section 67 as allowing them the full period of sixteen months after the commencement of the Act, notwithstanding that they had lodged their applications before its commencement. The Commissioner came to the conclusion that the sixteen months' period dated from the receipt of the application, and upon that ground he ruled that these persons were too late with their application for sealing. I understand that a number of members of the legal profession hold that the applicants were well within the time allowed them, so long as the sixteen months from the commencement of the Act had not elapsed. As a layman, the section does appear to me to bear that construction. As I understand, what is proposed in this Bill is to allow applicants whose claims may not have been confirmed within the specified time from the lodging of the original applications an opportunity to be placed in possession of their patent rights. In one particular case an application was made, and the patent was being operated, but the applicant had not the money in the earlier period to apply for the sealing of the patent, and to pay the required fees. Later on, however - within the sixteen months' period provided under section 67 - he was in possession of the requisite means, and applied for the sealing of his patent. He was then met with the decision of the Commissioner that his application was too late.

Mr Carpenter - Would the honorable member alter the Act to meet a case like that?

Mr. WATSON.Iwould. Where the Act, upon a reasonable construction, makes it appear that a man is entitled to sixteen months from the commencement of the Act in which to seal his patent, andno person has been prejudiced, I think that we ought to extend to him the privilege of patent protection.

Mr Carpenter - If the Act misled him, that is an entirely different matter.

Mr WATSON - I quite admit that we ought not to open the door to all sorts of legal complications without due inquiry. But I hold that the applications under section 29 cannot, in the very nature of things, be very numerous.

Mr Conroy - This Bill would apply to every application.

Mr WATSON - But it is only in a. very few cases under section 29 of the principal Act that applicants have failed to seal their patents within sixteen months of the lodging of the first application.

Sir William Lyne - I do not think that there are half-a-dozen cases.

Mr Conroy - Then why not include them in a schedule to this Bill ?

Mr WATSON - The suggestion of the honorable and learned member is worthy of consideration. I know of two such cases which occurred in Sydney. One of them relatedto a very valuable patent indeed. The application was made under section 291 of the original Act, and the applicant waited until fourteen months after the commencement of the statute before attempting to seal his patent. At that time, the sixteen months dating from the period of his original application had expired, and he thus incurred the risk of losing a very valuable patent owing to the loose drafting of the law. The principle which impresses me in connexion with clause 8 is that it is very hard to make the applicant responsible for an error o the Department.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Why not allow applicants to say that it is their error?

Mr WATSON - I think that we ought to consider whether we cannot protect an applicant against an admitted error by the Department.

Suggest corrections