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Thursday, 1 December 1960


Mr SPEAKER - Order! There is too much audible conversation.


Sir GARFIELD BARWICK - After consideration of the oral and written representations made to me, I remain of the view that the disadvantages of early publication are such that section 43 should not remain in its present form. I intend, therefore, to propose as an interim measure an amendment of the bill, by which the documents accompanying a patent application would become open to public inspection at acceptance of the application or at the expiration of two years from the lodgment of the complete specification, whichever is the earlier. The reasons for this proposal are: First, it is clear from the comments which I have received in respect of the proposed scheme that interested parties would prefer a measure of certainty regarding the date on which documents accompanying applications become open to public inspection. Secondly, when the Patents Law Review Committee made its recommendation, the work position in the Patent Office was such that applications were, on the average, being accepted two years after the complete specification was lodged. Thirdly, in the case of Convention applications which have originated in the United States of America or Great Britain - and these form the majority of Convention applications lodged in Australia - publication two years after the lodgment of the complete specification would mean that publication of an invention would take place in Australia at approximately the same time as it would in the United States of America or Great Britain.

I repeat that this is only proposed as an interim measure. It would give effect to the intention behind the Patent Law Review Committee's recommendation that section 43 be repealed while avoiding the disadvantages accruing from any worsening in the work position in the Patent Office.

In preparing the permanent scheme, which I intend to be the subject of a further bill next session, consideration will be given to alternative suggestions regarding publication, since, as I pointed out in my previous statement, under the permanent scheme it might be possible to secure the advantages of earlier publication while avoiding the disadvantages. The present bill would give effect to the various improvements in the patents law which were recommended by the committee, and would also give effect to amendments which are required to the Patents Act before Australia can ratify the International Convention for the protection of Industrial Property as revised at Lisbon in 1958. Clearly, these proposed amendments should not be held over for a further period pending settlement of the permanent scheme. I intend, therefore, to propose the amendment I have already mentioned - that is, a provision that the documents accompanying a patent application would become open to public inspection at acceptance of the application, or at the expiration of two years from the lodgment of the complete specification, whichever was the earlier - and to have the bill considered by Parliament this session.

As this proposed amendment is an interim measure, the result is that there will, in effect, be a holding period on publication until a further bill is introduced next session. The same result could, of course, be achieved by the stipulation of a shorter period than 24 months. However, it is, I think, preferable that if the period is to be altered by future legislation it should not be increased by that legislation. I would not expect that any longer period than 24 months from lodgment of the complete specification would in any case be favoured.

In addition to the amendment just mentioned, certain consequential amendments of the bill will be necessary. The most important of these would be an amendment of clause 15 - new section 78 - so as to provide that after publication, rather than after acceptance, as in the bill, an amendment of the specification would not be available if a claim of the specification as amended would not in substance fall within the scope of the claims of the specification before amendment.







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