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Saturday, 16 December 1905

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I did not see this Bill until about five minutes ago, but I have no hesitation in, saying that it is full of danger. The Minister tells us that it is only a formal measure, but it proposes to place in the hands of the Commissioner the right to go back on some of the most important provisions of the existing Act. The Minister has not said a word about the vested rights which may already have been affected by a strict observance of the rules of the Patents Act having been insisted upon. I have no desire to interfere with the passing of a formal Bill, but I wish to point out to honorable members the very serious consequences that may follow from provisions such as those now submitted to us. Clause 2 provides -

(1)   The Commissioner may, in relation to any application for a patent made under section twenty-nine of the Principal Act -

(a)   extend the prescribed time for doing any act or taking any step, and

(b)   revive any application for a patent or any proceeding in relation thereto which has lapsed by reason of an omission todo any act or take any step within the prescribed time.

Sir William Lyne - That applies to within six months of the commencement of the Act.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Very valuable properties may be affected by these provivisions. There are certain rules laid down, within which certain steps have to be taken, and certain precautions have to be observed; and very often where people interested in patent rights see that all the rules have been complied with,and that there is no further chance of competitive patents coming into conflict with them, they enter into negotiations which involve very large sums of money. I think that the Minister has unintentionally misled the House.

Sir William Lyne - I think that the honorable and learned member is unintentionally misleading the House.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I can assure the Minister that I should not have taken the trouble to speak if it. had not appeared" to me that thismeasure was so full of danger. The Minister can have no practical knowledge of the business of dealing with patent rights.

Sir William Lyne - The honorable and learned member need not be insulting.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - No one, apparently, can criticise a measure without exciting the anger of the Minister. Probably the Minister is acting on information, and has not studied the matter at all.

Sir William Lyne - That is another insult.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I shall not be prevented from saying what I desire by any such interruptions of the Minister. I am not attempting to lay down any distinct proposition, but I am warning the House against being led away by the statement of the Minister that this is a merely formal matter. The Patents Act of 1903 lays down a number of provisions which are intended to regulate the procedure in applying for patent rights. People, in dealing with certain rights may assume that all the requirements have been complied with, not only in regard to a particular patent, but in regard to competitive patents, and large transactions may be entered into on the strength of the fact that other patent applications are out of time, and have thus been finally disposed of. This Bill, however, provides that the Commissioner shall have practically unlimited power in relation to any application that comes before him. He could extend the prescribed time, probably in regard to future patents, and revive any application. There might have been an application in opposition to a patent which has since been granted, and which has been the subject of important negotiations. But the Commissioner will have power to revive any application which may have lapsed by reason of an omission to do any act, or take any steps within the prescribed time. Clause 3 is pregnant with danger. In sub-clause 2 it is provided -

The prescribed time for doing any act or taking any steps may be extended under this section although the time has expired.

The Minister told us that the Bill was introduced owing to a flaw in the Act, but he has not indicated any flaw. He is seeking to unfasten all thestrings that were tied up when the Act was passed. We do not know what may be underlying this Bill. Suppose that a patent worth£10,000 has been granted because an application for another patent has failed. Negotiations may have been entered into because of the knowledge that the competing patent had not been registered. Yet we are asked to place in the hands of the Commissioner, who is, no doubt, a very capable man - in fact, I know that he is - the power to revive an application, not one month old, or six months old, but, it may be, five years old. This is a deliberate attempt - I do not say with an improper purpose - to untie the strings of the Act of 1903, and give the Commissioner power to receive past applications, to get rid of past inaccuracies, to take up past applications which were previously out of time, and to generally do many things calculated to disorganize the patent laws. Sub-clause 3 of clause 5 provides -

Strict compliance with any prescribed form of patent shall not be necessary, but any such form may be varied to suit the circumstances of the case.

Who ever heard of such an unconditional power being given to the permanent head of a Department? Why were our patent laws passed? Because we recognised that a citizen who made an invention should be protected. A regular code of procedure is laid down by which patent rights are protected from stage to stage. If these precautions are not necessary, why should the Act have been passed? Having adopted the Act, I ask why should we unconditionally relax its provisions, as the Minister now proposes?

Mr Isaacs - The honorable and learned member cannot have read the Bill.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I am reading the Bill now, but I would ask the AttorneyGeneral to look at its provisions for himself.

Mr Isaacs - I have had a good deal to do with it.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Then I say that honorable members have received very poor treatment in that no explanation whatever has been offered to them with regard to any flaw in the Act. Clause 8 contains the following most dangerous and farreaching provision : -

After section one hundred and seventeen of the Principal Act the following section is inserted : - 117A. - (1) Where owing to any error or omission in the Patents Office, any application for a patent, or any proceeding in relation thereto, has lapsed, or any act or step in relation thereto, required to be done or taken within a certain time, has not been done or taken, the Commissioner may -

(a)   revive the application or proceeding ;

(b)   extend the time for doing the act or taking the step ; and

(c)   permit the act to be done or the step to be taken.

I am not exaggerating when I say that this is simply an attempt to subvert the whole of the patent laws. If honorable members are prepared to accept the Minister's statement that these provisions are necessary in consequence of a flaw in the Act, honorable members are much more unsophisticated than I take them to be.

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