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Friday, 3 December 1965

Mr BOWEN (KINGSFORD-SMITH, NEW SOUTH WALES) .- There is one matter on which I should like the Attorney-General (Mr. Snedden) to give us some explanation. Clause 35 sets out what are examinable agreements. Paragraph (f) of clause 38, excludes from this field agreements which, broadly speaking, relate to a licence in respect of a patent or the assignment of a patent. I can understand why that would be because we know that a patent is a grant of the exclusive right to make or vend the product of the invention for a period of 16 years. It is a kind of monopoly. It is granted by the Government in consideration of the inventor's disclosing his invention in his specification. On the one hand, he discloses his invention; on the other, he gets a monopoly. There is a public interest behind this - to encourage invention and to encourage research - but the Patents Act itself provides for those cases in which a patent is not made properly available to the public.

Section 108, in Part XII, provides that after a patent has been in operation for three years, anyone may present a petition to the Commissioner of Patents, alleging that the reasonable requirements of the public with respect to the patented invention have not been satisfied, and praying for the grant of a compulsory licence. Two years after that, if still the reasonable requirements of the public are not being met there may be a petition to revoke the patent. That is provided in section 109. Section 110(1.)(b) provides that the reasonable requirements of the public shall be deemed not to have been satisfied - if a trade or industry in Australia is unfairly prejudiced by the conditions attached by the patentee, whether before or after the commencement of this Act, to the purchase, hire or use of the patented article, or to the using or working of the patented process.

The Commissioner of Patents is the person who normally decides whether or not the conditions being attached by the holder of a patent are fair in the interests of the public.

I can understand, therefore, why agreements relating to patents are exempted by clause 38, but if we insert sub-clause (5.), as proposed, in clause 39, we have a different situation in the case of a patent holder who hopes to control or supply not less than 30 per cent, of the market. What I want to put to the AttorneyGeneral is this: If the holder of such a patent is liable to have the conditions on which he is licensing, or the fees that he is setting, scrutinised by the Tribunal and also by the Commissioner of Patents, we may get conflicting decisions. This is recognised in the English legislation, in which control of undesirable use of patents was achieved in relation to monopolies and restrictive practices by an amendment to the Patents Act. If the Monopolies Commission makes reports involving the use of patents, those reports have to go before the House of Commons, which may pass a resolution as to whether they are acted upon or not. If the House of Commons passed a resolution, this would be passed to the Controller of Patents. What I am not entirely clear on is that in the case of our Patents Act this will now be removed from the jurisdiction of the Commissioner of Patents and vested solely in the Tribunal, in that one case in which the owner of a patent is in a dominant position because he has 30 per cent, or more of the market. Sub-clause (5.) provides that sub-clause (1.), which is extremely limited in its exemption, will not apply. It exempts only any act or thing that is, or is of a kind, specifically authorised or approved by, or by regulations under, an Act.

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