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Tuesday, 20 October 1903

Mr KINGSTON (South Australia) - I think that the various firms of patent agents in South Australia, who joined in sending to the Prime Minister the telegram which has been read, have been well advised. They have put the matter strongly. The term " irremediable chaos " has evidently struck terror into the hearts of the Government, who, not knowing precisely what it refers to, propose to meet an objection which they presume to be made against the clause. Though I do not like leaving too much to regulations, and though admittedly the fixing -of priority amongst applications for patents is an important question, still, in a matter of this sort it is, perhaps, just as well to make the provision pretty elastic, as is done by the amendment proposed to be made. I shall, therefore, support it.

Mr Deakin - It applies only to an interregnum.

Mr KINGSTON - I hope it will be a very short interregnum.

Mr Glynn - The only important point is that as to priority.

Mr KINGSTON - It is a matter so important that it should be fixed by Parliament, but I see no objection to regulations, particularly in view of the strong language used by the South Australian patent agents. I may here say that I know that the patent agents in South Australia who have been mentioned, as well as other patent agents who might be mentioned, have gone to a good deal of trouble in connexion with this Bill. I should like publicly to acknowledge here the assistance rendered by various patent agents in the different States. They undoubtedly applied themselves keenly to the problems dealt with in the Bill, and they have displayed a public spirit in connexion with it that does them every credit. I should also like to say that I am not at all satisfied that there is a necessity for any considerable postponement of the commencement of this measure. I know that stress has been laid on the suggested necessity of postponing for some period the coming into operation of the Bill. But I do not believe that any such necessity exists. I believe that the Patent Offices of the different States are in fair working order, and, with an intelligent appreciation of the position on the part of the Federal officers, and a determination to make the inconvenience to the public as little as may be, the Bill may be brought into operation without considerable delay. I fully believe - or rather I have the impression - that it was the intention of the Government to consolidate not only the Patent laws of the States, but also the States laws relating to copyright and the laws relating to trade marks. I know that a general Bill sv as prepared, but that it was thought to be too huge a measure to be introduced into Parliament this session. I think, further, that it is advantageous to separate the two or three questions I have mentioned, and to provide for them by separate Bills, rather than to cause confusion by consolidating legislation that is not so intimately associated that it needs to be included in one Bill. But I am sure that the Government will be well advised - and I am hopeful that it is their policy - at the earliest possible time during next session to introduce the necessary Bills relating to copyright and trades marks for the consideration of the Legislature. They will find a mass of material already prepared and practically settled. The recess, however short, will enable them to put the finishing touches upon the Bills I have mentioned ; and I think I do but express the feeling of the Committee when I say that honorable members will welcome the introduction of such measures, so that they may be passed into law, and so that the questions of. patent, copyright, and trades marks may be covered by a Commonwealth law perfected and enacted at the earliest possible moment.

Motion agreed to.

Mr. GLYNN(South Australia).- I am not sure that a similar amendment ought not to be made in the second paragraph, which provides that applications may be made before this measure comes into force to a State Patent Office, and that such application may be regarded as equivalent to an application under a State patent law. It may be that two or three applications may be made in different States on the same day. The question of priority will then arise. When an application is made for a patent under a State Patent Act the question of priority is determined. There is no question about it, because whichever application was first in receives priority ; but when there are two or three different applications in different States for a Federal patent there may be a question as to priority. I, therefore, think we should put in similar words to meet the contingency I have mentioned. They could be inserted after the word " lodged."

Mr Kingston - The application has to be lodged at the Patent Office.

Mr GLYNN - It may be lodged at a State Patent Office.

Mr Watson - A fresh application has to be made.

Mr GLYNN - There may be some confusion as to which is entitled to priority. Would honorable members say that priority would be determined by the date of the application at the Federal Patent Office, and not by the date upon which the application is made in the State Patent Office ?

Clause, as amended, -agreed to.

House of Representatives' Amendment.- Insert the following new clause - "82a. Every patent shall be granted subject to the following conditions :-

(a)   That if the patented article is reasonably capable of being commercially constructed or manufactured or the invention patented is reasonably capable of being commercially worked in Australia the patentee or some person authorized by. him shall within five years after the date thereof commence and after such commencement continuously carry on in Australia the construction or manufacture of the patented article or the working of the invention patented in such a manner that any person may obtain the patented article or the use of the invention at a reasonable price ; and

(6)   That if the patented article is reasonably capable of being commercially constructed or manufactured in Australia the patentee shall not after four years from the date of the patent import it or cause it to be imported into Australia.

Senate's Message- Amendment disagreed to.

Mr DEAKIN - This is a very important provision. Both this amendment and the following one relate to the requirement inserted in this Bill that all patentees may be called upon within five years, if the invention patented is reasonably capable of being commercially worked in Australia, to commence its construction or manufacture here. The reason given by the Senate for objecting to the clause is this -

Because the desirability, if any, of the clause is obviated by the succeeding clause Ho. S3.

Clause 83 does to a considerable extent provide for a similar contingency. It pro- vides that -

Any person interested may, after the expiration of two years from the granting of the patent, allege that - the reasonable requirements of the public with respect to a patented invention have not been satisfied; and pray for the grant of a compulsory licence. The Commissioner considers the petition, and if he is of opinion that a prima facie case is made out, he refers it to the Supreme Court. He may, if not satisfied, dismiss it himself. If it be referred to the Court, and the Court is convinced that the reasonable requirements of the public have not been satisfied, the patentee may be ordered to grant a licence, or the Court may itself grant a licence for the manufacture of the patented article. To that extent clause 83 covers the same ground and meets the same set of circumstances. The Senate, when the measure was introduced, struck out the provisions with which we are now dealing, and which were then more absolute in their terms than they are at present. It was with a view to endeavour to win the approval of the Senate for these clauses that I introduced amendments which the Committee will recall, and which, in cases where it was desired to require a patentee to manufacture in the Commonwealth, threw on the person who moved in the matter the burden of satisfying the Court that the patent was reasonably capable of being commercially constructed or manufactured in Australia. These were safeguards which do not exist in the Acts from which the proposals were copied. I had hoped that, mitigated and safeguarded by these conditions, the Senate would see their way to accept the provisions. The members of another place, however, are still adverse by a considerable majority, and they point out - as, indeed, was pointed out in this Chamber - that the same urgency does not exist for these provisions as would have existed if clause 83, with its elaborate provisions which may be brought into play after two years, had not existed. "Under the circumstances, it rests with the Committee either to repeat their recommendation once more, or to recognise that even if it be repeated it is very unlikely to be accepted. Personally I do not propose to press the matter, because although I should greatly prefer to see some provision of this nature added to the Bill - ' though I recognise that clause 83 goes only part of the way-

Mr Thomson - A pretty long way.

Mr DEAKIN - The clause goes some distance, long or short ; but it does not by any means go all the way.

Mr Kingston - There are compulsory working sections in the Canadian Act.

Mr DEAKIN - There are provisions of the kind in the Canadian and German Acts ; but in neither country has compulsory working been brought into pract iu effect.

Mr Glynn - The section is a dead letter in Canada.

Mr DEAKIN - The section in Canada has simply led to certain procedures and the payment of certain fees in order to comply with the requirements of the Act. For my own part I am inclined to think that when we have had some experience of the working of the Bill, we shall be able to devise clauses with this object which will be effective, if the Parliament of that date think well to put them into operation. Under the circumstances, as we are making so large an advance by means of clause 83 and the

Bill generally, I suggest to the Committee that it might be advisable at this stage not to insist on sending these clauses back to the Senate. After the two considerations they have already received, I have little hope of the opinion of another place being altered. I move -

That the amendment be not insisted on.

Mr. GLYNN(South Australia). - I am glad the Prime Minister has taken the stand which he has indicated, and I hope the Committee will adopt his suggestion. The provisions are not essential to a Patents Act, but deal with production, and really affect the fiscal issue. Unlike clause S3, the provisions under consideration are not a part of the policy of the patent law itself. Clause 83 covers much wider ground than is covered by the English provision from which it is adopted, and which has been in force only for about twelve months. It was regarded as a very far-reaching provision, and was the result of a good deal of deliberation. I mentioned when we were discussing the Bill that, although a similar provision had found a place in the Canadian Act, it had not been enforced - that it was a dead letter. I am glad that since our previous discussion, the Prime Minister appears to have been informed that the statement I made then was correct. I had very good authority for stating that the Canadian provision has never been enforced. Under regulations, some declaration has to be made in Canada that the patent has been worked, in order to take it from outside the operation of the section ; but, like many other similar declarations, these are made as a matter of course.

Mr Kingston - True or untrue?

Mr GLYNN - True or untrue. I could show honorable members correspondence in which it is made clear that in Canada it has become almost a recognised practice to make those declarations. There are regular officials or agents who will make the declararations by the dozen if they are adequately paid for the trouble. I am informed of one case in which £10 was paid for the making of a declaration, and in which part of that amount went to the local agent, part to the Canadian agent, and the balance to the man who made the affidavit. I hope honorable members will adopt the suggestion of the Prime Minister.

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