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
Thursday, 8 December 1960

Mr WHITLAM (Werriwa) .-I move -

Omit " Sections forty-two and forty-three of the Principal Act are repealed and the following section is inserted in their stead ", insert " Section forty-two of the Principal Act is repealed and the following section is inserted in its stead ".

The consequence of the proposed amendment would be to preserve the present provision in the Australian patent law that a complete specification shall be published six months after it has been lodged. In his second-reading speech last June, the Attorney-General (Sir Garfield Barwick) announced that he would repeal section 43 of the principal act, which makes this provision. Then, in September, after he had had the advantage of consultation with the manufacturers - which the Patent Law Review Committee had not had - he forecast an amendment. His published explanation of the proposed amendment is in these terms -

The scheme that has been evolved would provide that where acceptance of the application was likely to be unduly delayed the Commissioner of Patents would determine the date of publication, but that he could not publish before twelve months had elapsed from the date of lodging the complete specification, and in the case of a Convention application, not before the date on which it was expected that the invention would be published in the Convention country. He could be required toy the applicant to publish after the expiration of the twelve-month period.

That further scheme is still not acceptable to the manufacturers and, accordingly, the Attorney-General has forecast amendments, and has circulated them, which would provide for an interim measure under which the publication would take place on the second anniversary of lodgment or on date of acceptance, whichever date first arrives. He is careful to point out that this will be an interim measure, because he proposes to bring in a final measure on this matter next session. In the statement which he made in the

House last week he twice reiterated the term " interim measure ", and said that the result would be that there would be a holding period on publication until a further bill is introduced next session. He said, further -

The sir?.? result could, of course, be achieved by the stipulation c' a shorter period; 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.

The Attorney-General is proposing, therefore, to introduce this interim measure the effect of which will be that a complete specification which is lodged with the commissioner after this week cannot be published until the commissioner has accepted it, or until two years have elapsed, whichever happens first. Next session - in about another four months - he proposes to bring down another amending bill. I hardly think it will come down on 28th February, when it is expected we shall come back. I anticipate that this proposed measure will reach us for discussion about April. If the Attorney-General then proceeds with the proposal he made in September, we shall then alter the law to provide that any specification lodged thereafter - or in fact any pending specification, that rs, any specification lodged next week or thereafter - will be published at, say, twelve months from the time of its lodgment. It appears to us that this is messing about with the law too much. Any specification which is now pending or which rs lodged from next week onwards can be published two years after its lodgment. However, the position may be that after next April any specification which is pending or which is thereafter lodged will be able to be published in twelve months.

We cannot see why the present position should not be held at this stage. We are not saying what our attitude will be towards the amendments which the AttorneyGeneral forecast in September, because we have not had the advantage of full consultation with patent attorneys or manufacturers on this subject, and apparently the Attorney-General feels that the Government can profit from further consultation with them in the meantime. What is the purpose of having an interim measure to make an alteration which will probably be altered again in so short a time? Surely there can be no prejudice - such as the Attorney-General referred to on several occasions - to patent applicants in convention countries or in our own if the present law continues until we can bring in a final measure next session. It is true, as appears from information which the Attorney-General has given me since the second-reading stage, in answer to a question which I put on the notice-paper last week, that in actual fact the time of publication in the United Kingdom and in the United States of America is in excess of two years. But it is not quite right to say that Australia is alone in the period of its early publication.

Belgium, which is one of the most highly industrialized countries in the world, as well as one of the most closely settled, provides for publication at the same time as we do - six months from the date of filing. The Canadian law at present provides for the publication to take place on acceptance, after the patent has been issued. The average period which that takes is two years. That is not a statutory requirement, but is the result of the congestion in their patent office, which is of the same order as or perhaps a little worse than the congestion in our own Patent Office. Canada has recently had a committee report on this matter, the same as we have, and the Canadian committee has made a recommendation1, I believe, in line with our present statutory provision.

Sir Garfield Barwick - It is the same idea, but not the same recommendation.

Mr WHITLAM - I have not seen the report. Does the Canadian committee recommend the publication of a complete specification six months afterwards?

Sir Garfield Barwick - No, before acceptance.

Mr WHITLAM - At some period before acceptance and some period, presumably, less than two years. I would be indebted to the Attorney-General if he would quote the provisions of the Canadian report, which is not available in the Parliamentary Library. The Attorney-General is proposing to review the recommendations of our own committee which recommended, in effect, that publication should take place on acceptance. He forecast an amendment, in September, and he was then minded to recommend, in effect, publication after twelve months. He is now introducing an interim measure to provide for publication after two years. The committee which recently inquired, into this matter in Canada has apparently recommended publication prior to acceptance, perhaps after six months. I submit that the reasonable thing to do is for this Parliament to hold the position until next session. There will be a multiplicity of legislation in this matter and there will be. uncertainty. Tho patent attorneys and manufacturers want to know what the time is, and the Attorney-General says that he will therefore fix two years; but they will also know what the time is if we leave the period at six months for the time being.

Suggest corrections