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Friday, 14 May 1915

Senator GARDINER (New South Wales) (Vice-President of the Executive Council) . - I thank honorable senators for their criticism of the Bill. The chief point of Senator Heating's criticism was whether it will be wise to allow the Bill to go through with a provision for penalties to be obtained by only the Attorney-General. I do not know whether I am not in agreement with him; but, as he hinted, with a great knowledge of measures of this character, further legislation may be needed. If the Government find that such legislation is necessary, that almost apparent defect may be remedied.

Senator Bakhap - If you do that, for goodness' sake consolidate the Patent Acts. We do not want to have to refer to halfadozen Acts.

Senator GARDINER - It is always easy to make a suggestion of that kind, and there is always a very drastic method of doing anything. This is urgent legislation which is required for war time only, and, in the anxiety to do extreme things in the time of war, it is not wise, I think, to bring down a comprehensive measure dealing with many personal interests. The course we have taken is, perhaps, better than the more free-and-easy method of settling the matter at once by a consolidating measure. I think that in the interjection of Senator Bakhap there is also an indication of the feeling of Senator de Largie.

Senator Bakhap - No; I think it is always pernicious to have many amending measures on the statute-book. They ought to be consolidated with the original measure.

Senator GARDINER - In connexion with hurried legislation of this kind, if one could foresee the difficulties which the experience of a few months' practical working may discover, we might resort to that method ; but even with comprehensive legislation such as suggested by the honorable senator, the experience of perhaps a week might discover a defect, even in a direction to which much thought had been given. However, I think, with Senator Keating, that a penalty of £500 for the infringement of a patent, to be obtained by the Government through the Courts, is perhaps unjust to the licensee, who maybe expending large sums of money in producing an article, and would have his business considerably interfered with. That aspect of the matter will receive attention. At present I am bent upon getting this Bill through. It is necessary for me to refer to some statements by Senator de Largie. He commenced his speech by assuring us that he was friendly towards the measure. I feel rather pleased that there are not many more friends like the honorable senator here.

Senator de Largie - I said that I was friendly towards legislation in regard to patent rights, not towards this measure.

Senator GARDINER - The honorable senator made the sweeping statement that the Bill we passed some months ago was so much waste paper, and that nothing had been done under its provisions. I interjected, perhaps somewhat rudely, that the statement was not correct, because much' has been done under that legislation. I will come right to the very patent to which the honorable senator referred, and that is the patent for the thermit welding process. The Government have suspended that patent, and taken it out of the hands of the Germans. When the honorable senator reads his proofs he will see that his earlier statement would lead the Senate and people outside who read his speech to believe that the Government werereally conserving the interests of the Germans interested in the patent. But that is not the case.

Senator de Largie - The Government have safeguarded their interests.

Senator GARDINER - The Government have suspended the patent, and placed it in the hands of a Commonwealth official, in the interests of the people.

Senator de Largie - They have suspended the patent, and have not used it.

Senator Senior - And they have threatened the licensee with damages if he uses it. That is a peculiar way of providing for the use of a patent.

Senator GARDINER - I can see that Senator Senior is following the lead of Senator de Largie, and is not giving that attention to facts which he generally gives iri regard to a statement of that kind. The position is not that we have not safeguarded the interests of the licensee. Under the first amending Act which we passed it was found that if a patent were voided, then, any one could make use of the patent, and no penalty was provided.

Senator de Largie - Why should he not?

Senator GARDINER - Let me answer one question at a time. Experience in connexion with our legislation taught us - although we did not intend it - that when patents were voided and licences were given to persons to take them up, any person not licensed could set to work in competition with those who were licensed. Therefore, we introduced this Bill, which makes it an offence for any one else to interfere with the use of a licensed patent.

Senator de Largie - And the man who gets a licence may do nothing.

Senator GARDINER - The man who gets a licence is to be protected, because the Attorney-General will have power to take proceedings against any person infringing a patent and a licence.

Senator de Largie - The licensee in the case to which I referred is not using the patent, and we are going to safeguard his interests. .

Senator GARDINER - This Bill only needs to be read by any person to see the justice of its provisions. We discovered, as I said, a defect in the first measure, and that is that, after voiding a patent, any person except the original patentee could use it. We remedy that defect by providing that the Attorney-General may take action, and imposing a penalty of £500 upon any person infringing a patent or the rights of a licensee. In regard to the patent for the thermit welding process, Senator de Largie said that the Government had done nothing. If he considers that the annulment' of the rights of the German patentee is nothing, he is entitled to his views. If he says that the vesting of that patent in an officer of the Commonwealth is .nothing, he will find it difficult to get others to believe him. Now, what was the position of the Government in regard to this case? I am sorry that the honorable senator introduced the personal element into the discussion.

Senator de Largie - Do not be sorry for anything I may do ; be sorry for yourself.

Senator GARDINER - I am sorry. The honorable senator, unfortunately, introduced the name of one of the applicants for a patent, and seemed to think that Mr. Teesdale Smith-

Senator DE LARGIE (WESTERN AUSTRALIA) - I mentioned two applicants.

Senator GARDINER - Very well; but I want to deal with one of the two applicants. The honorable senator seemed to consider that, because of past services rendered to the Commonwealth Government, because of hardships inflicted upon him by the Commonwealth Government, further consideration should have been given to one of the applicants; but what is the real position regarding this particular patent? It is generally used by the State Governments in welding rails for the tramways. Would it have been a wise act for the Commonwealth Government, altogether apart from whether it was Mr. Teesdale Smith or Mr. Chinn, to hand over to a private person a monopoly, the chief users of which are the public of this country ?

Senator Senior - In any case, granting a patent means actually guaranteeing a monopoly to the person who uses it.

Senator GARDINER - Of course it does. When this German patent was voided, instead of giving a monopoly to a private person, whether it was Mr. Teesdale Smith or Mr. Chinn, we maintained the monopoly as the right of the Commonwealth, and in the interests of itS people, especially as its chief users are the people of the States in the shape of the State Governments.

Senator Bakhap - And the State Governments are not forbidden by the Commonwealth to use the patent.

Senator GARDINER - Not only that, but they can use the patent on the payment of 10 per cent., which goes into the coffers of the Commonwealth.

Senator de Largie - Who is using the patent?

Senator GARDINER - The Government of New South Wales are largely using this process in the welding of rails. So far as I know, the chief users of the patent will be the State Governments in Australia. That, I hold, is one of the patents for which a monopoly should not have been given to any private person. I can quite understand the eagerness of a private person to get a patent for the process. I can quite understand that a private person imagines that he is suffering a great injustice when he does not get a patent for it. But 1 ask honorable senators to give their attention to that aspect of the question, because we are charged by Senator de Largie with having done nothing under the recent legislation. What we did in this particular case was, instead of handing over the patent to Mr. Teesdale Smith or Mr. Chinn, to maintain it for the Commonwealth of Australia, and not for a German patentee, and the Commonwealth is permitting the use of the patent. The licensee is Mr. Bell, the Engineer-in - Chief for Railways. The licence was not given to him personally, but as an officer of the Commonwealth.

Senator de Largie - Do you say that he has extended the use of the patent to New South Wales?

Senator GARDINER - The Government of New South Wales are using the patent in connexion with their tramway system in Sydney.

Senator de Largie - Have they got the consent of the Commonwealth EngineerinChief to do that?

Senator GARDINER - I do not intend to go into details.

Senator de Largie - Certainly not.

Senator GARDINER - But the Government of New South Wales are using the process.

Senator de Largie - Why not be straightforward in the matter?

Senator GARDINER - I shall always be pleased to be put in comparison with the honorable senator as to who is the more straightforward in debate.

Senator de Largie - You are not now.

Senator GARDINER - If it is not sufficiently straightforward for the honorable senator, I think that most honorable senators will recognise that the Government have done something, and that it has enabled the owners of the State railways to use the process without having to pay undue royalty to a private individual.

Senator de Largie - It is not used on the railways.

Senator Senior - The Commonwealth Government have only voided the patent during the time of the war. They are really caretakers for the German patentee.

Senator GARDINER - We have done what the first amending Act gave us. power to do, and that was to void the patent during the time of war, and for such other period as we might issue a licence for. If the expenditure of a large sum is required for the erection of a plant to work any particular process, the Government will issue a licence which will carry the user over a period considerably beyond the duration of the war.

Senator de Largie - But they havenot done so.

Senator GARDINER - I have shown clearly, I think, that in this particular case we have not only not done nothing, but done something very considerable in. the interests of the people of the Commonwealth. We prevented a private person from getting a monopoly of a process which is chiefly used for, and directly paid for by, the State Governments. Other patents have been dealt with, but I do not propose to read out a list of them. There was, for intance, the patent granted to Mr. Tonks to manufacture glass pavements, if I may use that term, for lighting basements.

Senator de Largie - Why did not the Government take that over?

Senator GARDINER - The honorable senator compared our action in that case with the refusal of a licence to Mr. Teesdale Smith and Mr. Chinn. Mr. Tonks, who is engaged in manufacturing the article, was given a licence because he did not, so far as I could see, trespass upon the interests and the rights of the people of the Commonwealth.

Senator de Largie - Where do the municipalities come in ?

Senator GARDINER - If we had imagined that Mr. Tonks would be placed in a position to take undue advantage of the people, he would not have gota licence.

Senator de Largie - The municipalities will have to go to Mr. Tonks to get the right to use the patent.

Senator GARDINER - There is no question about that.

Senator de Largie - What difference is there in the municipal trams having to go to any one to get the right to weld iron?

Senator Bakhap - Is Mr. Tonks a glass manufacturer ?

Senator GARDINER - All these matters were fully investigated. The capacity of an individual to conduct the business and give a fair service to the community was very closely inquired into by a Board. Let me now get to the question of lysol, in further answer to the statement of Senator de Largie that nothing has been done. Lysol is one of those chemical preparations which are used in almost every household in the Commonwealth. Four persons have been licensed to manufacture the article. The licences were granted after a public investigation. It was unnecessary to give one person a monopoly. It was necessary to let persons manufacturing the article know that if they incurred an expenditure in the erection of plant, they would be safeguarded to some extent.

Senator Bakhap - Can you give the names of these people?

Senator GARDINER - I am sorry to say that I have not got the names here. The royalty for a licence in regard to the ferro-prism patent would be10d. per superficial foot, or about 10 per cent. on the cost of the article.

Senator de Largie - Which the municipalities have to pay.

Senator GARDINER - It is paid by the Commonwealth Government, and surely if any profits accrue from suspended patents, that is the body most entitled to them, because the money will be held in trust for the people.

Senator de Largie - Why did you not do that with thermit ?

Senator GARDINER - I thought I dealt sufficiently with that question. I admire the honorable senator's pertinacity, but wish he would exercise it in a better cause. The royalty in the case of lysol is such sum as the Minister from time to time fixes, but not exceeding 10 per cent. on the cost of the article. The chief intention of the measure is to enable the Government to protect the people to whom they issue licences, by preventing outside persons competing with them.

Senator Senior - Then you take up the position that if one man gets a licence to cut timber no other man should have a

Senator GARDINER - That is not the position. In many cases these licensees will have to spend a large amount of money to produce the article. If there was no guarantee of security against outside competition the chances are that the public would not get the article, or would get one inferior in quality.

Senator Senior - Does not the heavy penalty of £500 seem an almost absolute protection to a licensee for his monopoly ?

Senator GARDINER - That is why we are proposing a penalty of £500.

Senator Senior - Then the Government arereally barracking for the monopolist ?

Senator GARDINER - Nothing of the kind. Under the ordinary patents law the patentee had a monopoly.

Senator de Largie - Why in time of war safeguard German patents to a greater extent than is done in ordinary times ?

Senator GARDINER - The Government Have in no way safeguarded German patentees. Not only have we not safeguarded and protected the German patentee of Che particular article in which Senator de Largie is chiefly interested, but we have already avoided his patent, the use of it is at the disposal of the people, and the profits accruing from it are going into the coffers of the people. Senator de Largie seems to have an impression that in all our war legislation we should aim at getting even with the Germans. We have adopted a more farreaching and effective method by sending our men to meet the Germans on the field of battle, where we shall eventually win out. Some people would like to stick pins into all the Germans they see. That would give them pleasure and the Germans pain, but it would not add to the reputation of the British people or bring us a day nearer ultimate victory. We have introduced this legislation because it is the most effective and straightforward way of dealing with enemy subjects, who by thelaws of nations are not permitted to trade in this country during the time of war.

Senator de Largie - And nobody else is allowed to use their patents.

Senator GARDINER - The honorable senator is not in his ordinary frame of mind which enables him to take reasonable views. He appears to have allowed the thermit patent to overshadow everything else, and, perhaps, because the patent did not go in the direction that he wanted it to go, he is inclined to find fault generally. I hope the Senate will recognise that we have used the powers conferred on us a little more than six months ago to conserve the rights of the people, and I trust it will agree that we are not asking too much in seeking for power to further protect the persons to whom we issue licences.

Question resolved in the affirmative.

Bill read a second time.

In Committee:

Clause 1 agreed to.

Clause 2-

(2)   This section shall be deemed to have commenced on the same day as the Patents Trade Marks and Designs Act 1914.

Amendment (by Senator de Largie) proposed -

That "section" be left outand "Act" inserted.

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