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Wednesday, 5 May 1915


Sir WILLIAM IRVINE (Flinders) . - I am not at all sure that I do not agree with the Attorney-General regarding the main object that he has in view. The honorable gentleman practically stated that object in the concluding words of his speech when he said that where we suspend the right of an enemy patentee to enforce his patent, and merely grant a bare licence to some one else to use it, we may not give encouragement to any person to enter upon the manufacture of articles that may be useful to the Commonwealth. I admit that that is so, and, therefore, although the Bill involves a new and a very serious inroad upon the principle of the Crown granting monopolies which will need to be watched with the utmost care by the Ministry and Parliament, I do not think that at the present time I should oppose such legislation. I wish to point out, however, that while the object which the Minister has in view is that which he has stated - and in that I shall be prepared to make some suggestions to assist him - the Bill, as it is worded, goes to a length which, I feel confident, neither the Attorney-General nor his supporters appreciate. As it is worded, this measure revives some of the most mischievous features of the practice of the Crown creating indefeasible monopolies in individuals, which existed at the time of the Tudors, and which, after a great constitutional struggle by the Commons against the Crown, was at last limited - in many respects it was abolished - by the famous Statute known as the Statute of Monopolies. That Statute, which was passed in the time of Elizabeth, provided that the Crown should not be permitted to grant any monoplies except subject to a certain definite limitation. The Crown had been granting monopolies and making revenues out of the practice. I am not suggesting that anything of the kind is likely to happen here. But the principle involved in this Bill is one that has been fought for and maintained throughout the history of, not merely Great Britain, but every modern civilized country - the principle that the granting of monopolies by the State must be limited within a very defined area. That defined area is that a monopoly shall be granted only as a reward for a new and useful invention. Both those words are used in the Statute of Monopolies, and they have been taken by the Jurisprudence of every civilized modern country to be a fair mark of limitation to the State's right to grant monopolies. They are, indeed, the basis of all our patent laws, and I have referred to them because they have an immediate bearing on this Bill. Every person to whom a monopoly in the shape of letters patent is granted, by the Crown never has that right absolutely granted to him. It could not lie guaranteed by the State, but must be subject to the condition that the invention which is claimed to be new and useful is, in fact, new and useful ; that the patentee has not got letters patent for something which, in reality or in effect, was in the possession of the public mind before those letters patent were granted. Honorable members will recognise that that is a perfectly reasonable position. In granting a patent for an invention the Crown says, in effect, to the applicant: " We do not know whether your invention is new or not. You say that it is, and we have an office which will make inquiries for you, as far as such inquiries can be made, to ascertain whether, in fact, your invention is new and useful." The Examiner of Patents in every country examines the official records to determine, as far as can be determined from them, whether an invention claimed to be new is new in fact! The Crown says to an applicant for a patent, " That is all we can do for you. If your invention is new, we shall give you a monopoly in respect to it for fourteen years, with a right, under certain circumstances, to have it renewed, but you must take it at your own risk." It will be seen that the real safety to the public and the Crown against the granting of improper monopolies lies in the fact that there is thrown upon the person who secures a patent right the condition that if his invention is challenged he must show that it was new when the patent was granted in respect of it. Every patentee, whether an enemy or a friendly patentee, is subject to that condition. The first thing that an inventor does nowadays is to patent his invention in every country. We have hundreds of German patents here, and doubtless there are hundreds of British patents in operation in Germany. Many of these patents are not worth the paper on which they are written. Many of them are absolutely worthless. The patentees have paid their fees, and have obtained their patents for what they are worth. If any one chooses to exercise such an invention, the patentee cannot say to him, " Here is my patent, and that must be quite enough to you. You must pay me a royalty." On the contrary, the person seeking to exercise an invention has the right to say to the patentee, " Your invention was not new when you obtained a patent for it in Australia." The Attorney-General will agree with me that of the German patents with which we are now dealing there are hundreds in Australia which are probably as bad as possible, and which every Australian citizen has a right to challenge. I understand that this Bill has an immediate connexion with what is known as the Thermit case, and I cannot help regarding this measure as an illustration of the danger that always attaches to the passing of a Bill, in general terms, to deal with a particular subject-matter. If the Government wish to deal with a particular matter, Parliament should be so informed, and a measure relating specifically to it should be introduced. But when we have brought forward a general change of the law to meet a particular difficulty arising in a particular case we are apt to fall into serious dangers. Before alluding to the facts which I think have led to the introduction of this Bill, I wish to point out that there are hundreds of German inventions patented in Australia which any one has a right to use. We can say in respect of many of them that the invention to which the patent relates was published in a scientific magazine here before the patent was granted, or that something almost exactly similar was being used, say, in the Castlemaine Foundry before the invention was patented.


Mr Fenton - Would that be only in war time?


Sir WILLIAM IRVINE - At any time. The Crown, in granting a patent to any man, has always said, in effect, to him, " You have a monopoly in respect to it only if you can prove that your invention is new. Any man has a right to do that, in respect of which you claim a monopoly, if he can show that your invention is not new." This Bill has nothing to do with the war, except in so far as it takes its origin from the fact of certain patentees being enemies of ours. The Commonwealth Act of 1914, copying the Imperial Act, enabled the Minister to make a regulation under the general patent law providing for the suspension or cancellation of the patent rights of the subject of any State at war with us - to put it shortly, the patent rights of any German - or, in the alternative, to grant a licence without suspending a patent-


Mr Hughes - Not alternatively. The word " and " is used. We may suspend without giving a licence; we may suspend and give a licence or avoid a patent altogether.


Sir WILLIAM IRVINE - The AttorneyGeneral is in error. Section 3 of the Act of 1914 provides that regulations may be made -

(a)   for avoiding or suspending in whole or in part any patent or licence the person entitled to the benefit of which is the subject of any State at war with the King;

In other words, a German patent may be avoided or suspended. The section provides, further, for the making of regulations -

(b)   for avoiding or suspending the registration, and all or any rights conferred by the registration, of any trade mark or design the proprietor whereof is a subject as aforesaid ;

(c)   for avoiding or suspending any application made by any such person under any of the Acts referred to in this section, and -

Paragraph c deals with applications and has nothing to do with the point with which I am dealing -

(d)   for enabling the Minister to grant in favour of persons, other than such persons as aforesaid, on such terms and conditions, and either for the whole term of the patent or registration or for such less period, as the Minister thinks fit, licences to make use exercise or vend patented inventions and registered designs so liable to avoidance or suspension as aforesaid.

The word " and " merely connects the different paragraphs, giving power to make regulations. It will thus be seen that the Minister has power to make regulations to suspend or cancel a German patent, or, allowing a German patent to remain in force, to grant a licence to any individual. If a German patent be annulled, a licence in respect of it cannot be granted. A licence has force only as long as there is in force a patent relating to it. Obviously, we cannot grant a licence if we annul the patent.


Mr Hughes - We can annul or suspend a patent, and yet not grant a licence.


Sir WILLIAM IRVINE - Quite so. I understood the honorable gentleman to go further, but I accept the statement just made by him. We can annul or suspend a patent, and yet refrain from granting a licence in respect to it. If we annul or suspend a patent we may not grant a licence, but we may leave a patent in force.


Mr Hughes - Unless we annul or suspend our authority to grant a licence does not arise.


Sir WILLIAM IRVINE - I take a totally different view from that just expressed by the Attorney-General. If we annul or suspend a patent, the necessity for granting a licence to use the invention relating to it does not1 exist. The operation of the patent is either destroyed altogether or suspended during the operation of the war. If it is suspended any person may, without licence, use the invention to which it relates.


Mr Hughes - I was speaking of the Statute.


Sir WILLIAM IRVINE - It is only where a patent is not suspended or annulled that the Minister may grant a licence that may be of any purpose. That being so, I come now to the point to which I wish to direct special attention, because I believe it has been overlooked. This legislation, if carried in its present form, will have extraordinary, farreaching effects. If a patent be annulled or cancelled, or suspended, or if a licence be granted without annulling or suspending the patent concerned, then any person who gets that licence is merely exempt from being sued by the patentee. . He has no monopoly. If we suspend the patent we abolish the monopoly for the time being. If we annul the patent we abolish the monopoly altogether. If we do not suspend or annul a patent, but grant a licence to a particular person, still under the existing Act, every other Australian citizen has exactly the same right as he had without that Act to make the thing which is supposed to be protected by the patent, but only at his own risk.


Mr Watt - Do you mean at the risk of civil recovery?


Sir WILLIAM IRVINE - Purely civil. But the criminal element has also been introduced, and I shall deal with that later.


Mr Fenton - But that applies to the term of the war only.


Sir WILLIAM IRVINE - Only in the case of a suspension. If a patent is annulled, the original patentee is out of Court altogether, but suspending a patent during the currency of the war does not suspend the right of the patentee to sue during the war; it merely suspends his monopoly during the war, because no object can be gained by suspending the patentee's right to sue, seeing that, being an enemy, he has no right to sue during the war; he cannot be heard in our Courts.


Mr Fenton - That is true, but if a licence is granted, will it hold good only during the term of the war? Can the patentee come in afterwards and sue for the use of his patent?


Sir WILLIAM IRVINE - Certainly not. In the new Act, Parliament has said that the Minister may "grant licences" - he may grant a licence to a particular person, authorizing that person to manufacture the patent, but that licence does not give the licensee a monopoly; it simply authorizes him to manufacture without paying royalty to the patentee. If the Minister grants a licence under statutory authority to a man to manufacture, notwithstanding a patent which still remains in existence, the man has an absolute right to do it under the existing Act, and the patentee is absolutely precluded from suing afterwards with regard to the actions of the licensee. Of course, after the termination of the licence, the patent, if it has not been annulled, will come into full force, and from that time onward the patentee will have the right to sue any person for manufacturing the article covered by the patent.


Mr Hughes - The honorable member is not forgetting that everything turns on the fact that the power given to the Minister is to suspend, in whole or in part, in favour of a particular person.


Sir WILLIAM IRVINE - Of course, if the Minister grants a licence, it is in favour of the person to whom he gives it. The words " in part " cannot mean "in favour of any particular person." To suspend a monopoly even in part means to allow everybody to do the thing which the monopoly claims to do.


Mr Hughes - We are dealing with patent rights.


Sir WILLIAM IRVINE - I am endeavouring to put my own view. I have no doubt as to it.


Mr Hughes - The effect of the limitations in the Bill are such that they conflict with the argument of the honorable member.


Sir WILLIAM IRVINE - I had some difficulty in understanding what was the meaning of suspending a patent " in part." It can only mean that, if a patent consists of several subordinate monopolies or claims, it may be suspended in regard to some of the' claims,, though not in regard to the whole patent. It cannot mean suspension in regard to any particular person, because, once suspended, it is suspended in regard to everybody, or not at all. If honorable members will give me a little more attention upon this very technical subject, I shall be able to explain this very dangerous quality in the Bill, and I have no doubt that the Government, if they view the matter as I do-, upon explanation, will be prepared to make the necessary modifications to gain their real end. According to clause 4 -

Where a patent, or the registration, and all or any of the rights conferred by the registration, of a trade mark or design, has been suspended in favour of any person-

Mark these words - in favour of any person - because there is nothing in the existing law which speaks of suspending a patent " in favour of any person " ; the words are meaningless. There cannot be a licence where a monopoly is suspended. It is not required. A licence is permission to do something which, but for the licence, on© would be prevented from doing by law. The clause proceeds - any person other than the person in whose favour the patent, or the registration, as aforesaid, has been so suspended, who, during such suspension, makes, uses, exercises, or vends the invention forming the subject-matter of the patent, shall be guilty of an offence. Penalty : £500.

If it be passed in this form, the clause will achieve two objects which could not have been contemplated by Ministers. It will deprive the people of Australia of the right which they have always had against any patentee, no matter how useful his invention may have been, to say that, so far as Australia was concerned, it was not new at the time the patent was obtained. This provision not only takes over a German patent, which may be good or bad, and vests it in some licensee, but .it also arms that licensee with a power and authority such as no patentee has ever had in any British or modern community.


Mr Mathews - It gives him stronger patent rights?


Sir WILLIAM IRVINE - Unassailable patent rights - so much so that no Australian citizen can say, "Your invention was never a new invention here." Not only does it deprive every man of the right of claiming to dispute a monopoly on the ground on which similar monopolies have always been open to challenge, namely, that it was not new when the patent was obtained, and that it was in the possession of the public previously, but it also adds, or perhaps substitutes - it is difficult to say - but it certainly creates a new and drastic enforcement of the monopoly such as exists in no other jurisdiction, for we make any encroachment on the patent a criminal offence with a penalty of £500, whereas, under the existing law, the sole right that any patentee has to support his monopoly is a civil action for damages. He may say, "You have made use of my invention; it was new, and I have a patent for it; by using it you have caused me a certain amount of damage, and I shall sue you for damages, and claim an injunction against you in order to prevent you making further use of it." That relief the patentee has subject to the inherent right of the man whom he attacks to say, " You have never had a valid patent, because the invention was not new at the time you got it in Australia."


Mr Fenton - Do you mean to infer that if this right is granted to a certain party, protected by this Act, no man in Australia can come along and ask for an improvement?


Sir WILLIAM IRVINE - No ; that is not my meaning. An improvement is an entirely different thing. A patent may be issued for an improvement on an existing patent, so long as it is new ; but the existing patent cannot be used without the payment of royalties to the patentee.


Mr Poynton - The new Bill removes the onus of proof from the patentee to the other person.


Sir WILLIAM IRVINE - It is not so much a question of proof. This Bill now proposes to give to the patent the guarantee that it is a good patent, whether it is new or not, and the man who gets a licence will not only have the right to manufacture without paying royalty to the patentee - that is to say, he will have the right to do what no other man will have the right to do if the patent is good - but, also, he will have a monopoly which is conferred on him in a way which it is not now conferred on any patentee. No one will be able to dispute the validity of the patent, whether it be good or bad. The right which we all have to dispute any German patent in the hands of a German patentee will be gone. Thus hundreds of these patents, which may be good or bad - that many of them are bad has been proved in our Courts of law - may be taken over under this Bill, and vested in licensees, and at once be made impregnable.


Mr Fenton - Would not the Crown have the right to get the royalties the original patentee would have received?


Sir WILLIAM IRVINE - Probably ; but why should the Crown have that right against the public? That is the danger. We are creating a new monopoly for inventions which are not new. A German may have a German patent for something which has been used in Australia in various forms before. It may be thoroughly bad, but the German patentee comes here and gets a patent at the Patents Office. It is often done, because the examination is necessarily bad; it is an examination of documents only, and numbers of these patents are very easily attackable and capable of being upset. Nevertheless, the patent stands, but any one has the right to go on making Thermit - I merely take this as an example ; I do not know whether the patent is bad - and if the patentee chooses to sue for damages the other party may be in a position to prove that it is a bad patent. Now, however, under this Bill, once the patent is vested in the licensee it becomes impregnable. It may be as rotten as possible, but it is at once built up into an impregnable fortress so long as the licence is held.


Sir John Forrest - How long would that be?


Sir WILLIAM IRVINE - It may be for the unexpired period of the patent, anything up to fourteen years. As the Attorney-General has pointedout, if we desire people to put capital into the manufacture of these articles, we must give them something worth going for, and probably licences will be granted for as long a period as possible; therefore, the monopoly may rest for all that time, and it is an impregnable monopoly. It is very dangerous, indeed, to vest in the Crown, in any shape or form, the right to grant monopolies, except subject to conditions which have been attached in every country to the grant - for instance, the condition of giving something to the public in return for the monopoly. The patentee gives the public the benefit of a new invention, but for that alone does he get the right to prevent other people from using it?


Mr Fenton - The onus of proof is upon the patentee.


Sir WILLIAM IRVINE - I do not think there is any question of the onus of proof. It is not merely the onus of proof that is thrown upon him-


Mr Fenton - Assume it goes to Court.


Sir WILLIAM IRVINE - Suppose the licensee goes to Court, do you mean ?


Mr Fenton - No. The patentee takes the person to Court and says " You are using my patent." The onus of proving that he is rests upon the patentee.


Sir WILLIAM IRVINE - Are you. speaking of the existing law ?


Mr Fenton - Yes. The onus of proof would be on the patentee.


Sir WILLIAM IRVINE - No. Under the existing law, the person who assails a patent has to prove that it is not new. That is the ordinary law. He has always the right to call evidence that it is not new : but the position created under this Bill is that nobody can prove that the original German invention was not new.


Sir John Forrest - Does the Labour party wish to give a monopoly?


Sir WILLIAM IRVINE - I do not wish to use language of party controversy in this matter. I merely wish to point out to my friends on this side of the House, as well as to those on the other, that this power, whether in the hands of a Government supported by honorable members on that side, or by honorable members on this side, is an equally dangerous power. That is what I want to point out. I propose to take up a few minutes by referring to an instance of what I mean. I do not think there is any disputing the fact that the occasion responsible for this Bill is in connexion with the question that has arisen regarding a German invention named Thermit. I know very little about the subject of the invention, excepting that it is a kind of chemical or physical preparation by which enormous heat is generated, and that it is largely used in the welding of iron and steel.

An Honorable Member. - It is used on our tram-lines.


Sir WILLIAM IRVINE - That is the history of the Thermit controversy. After the last Act was passed in 1914, two applications were made under it, and under regulations raised by it, in respect of this particular invention. One application was made by Mr. Teesdale Smith, the other by Mr. Henry Chinn. Both were made to avoid the Thermit patent. If either had succeeded, in effect, it would have meant that Teesdale Smith, or Chinn, or anybody else, might have used the patent - that is, under the operation of the Act. Both the applications were opposed by a number of persons. First of all by the patentees, then by the Australian Thermit Company, who were, I imagine, tha exclusive licensees of the patent in Australia. They were opposed by the Minister of Railways in New South Wales, by the Commissioner of Railways in that State, and also by the Malvern Tramways Trust. Mr. Chinn opposed Mr.. Teesdale Smith's application.


Mr Hughes - Were these opponents persons who had applied for licences or persons wishing to apply ?


Sir WILLIAM IRVINE - I do not know what relation these people stood towards one another, or towards the original patentee. They all opposed the applications, and Mr. Chinn opposed Mr. Teesdale Smith's application, though the granting of Mr. Teesdale Smith's application would have had exactly the same effect as the granting of Mr. Chinn's application. They were all persons who opposed the applications to avoid or suspend the Thermit patents. At that stage there were no applications for licences. The applications, I am informed, and this information has been supplied to me by a gentleman engaged professionally in the litigation-


Mr Hughes - What was the first application before the Commissioner fort


Sir WILLIAM IRVINE - To avoid or suspend.


Mr Hughes - Exactly. But some of these persons were applicants.


Sir WILLIAM IRVINE - At this time the only applications were to avoid' or to suspend the granting of either of which would, of course, have thrown the whole thing upon the world at large.


Mr Hughes - The honorable gentleman has coupled them both together.


Sir WILLIAM IRVINE - I say two persons made application to avoid or suspend. One was Mr. Teesdale Smith, the other Mr. Chinn.


Mr Hughes - Yes, that is so; but the application was not granted.


Sir WILLIAM IRVINE - I am not making any accusation against the AttorneyGeneral. I am sure he did what he thought was right in this case; but I want to show what might be done. The applications, as I have said, were opposed by quite a number of persons. For some remarkable reason, Mr. Chinn opposed Mr. Smith's application, the granting of which would have had exactly the same effect as if Chinn's application had been granted. The contractors to the Malvern Tramways Trust also for some reason opposed Smith's application. These, however, are details that do not matter. The fact is that the applications were opposed by quite a number of persons. The applications were made to the Attorney-General himself. Very properly, he referred them to the Commissioner for Patents for inquiry; but Mr. Teesdale Smith, before the hearing before the Commissioner for Patents, withdrew his application. The next step was that in which the Commissioner would have heard Mr. Chinn's application, which up to that time had been merely an application to suspend or avoid a patent - that is, to open the door to the world. Mr. Chinn asked the Commissioner for an exclusive licence to be granted to him- self. An " exclusive licence " means nothing. I do not know whether Mr. Chinn knew that it meant nothing, but that is what he asked for. There was no power under the existing law to grant an " exclusive licence." There was power to grant a licence, but this power to grant an "exclusive licence" is only now being asked for. After the matter had been further dealt with, a decision was given, the effect of which was, shortly, that the Attorney-General refused to grant Mr. Chinn's application, but suspended the patent " so far as regards and in favour of (a) the EngineerinChief of the Commonwealth railways; and (b) such persons as the Minister may license." Now that again was meaningless. I say so with great respect to the Attorney-General; but to say that under the existing law you can suspend a patent " as far as regards and in favour of " any particular person, has no meaning. Under the existing law, all a Minister can do is to suspend a patent - that is, he can open the door, but he cannot open the door to any one particular person. He suspends the patent; he annuls it-


Mr Watt - Except by refusing an application to grant a licence !


Sir WILLIAM IRVINE - Of course, if he granted a licence, he would open the door to one person and close it to the rest of the world, but leaving to the rest of the world the right to put the law into operation to show that there is nothing in the door, so to speak - in other words, to show that the patent is bad. I have the orders made by the Minister here, and, assuming that he possesses the power, I want him to understand that I take no exception whatever either to the form or substance in which he proposes to take this power, provided he has thoroughly looked into the matter. It may be highly desirable to invest the Engineer-in-Chief for Railways with the exclusive power to utilize this Thermit patent in Australia. It may, or it may not be. If the Minister has looked into the matter, and has come to the conclusion that it' is, I do not quarrel with his decision. It may be desirable that he should possess power to grant an exclusive licence to some other person beside the Engineer-in-Chief. I do not dispute that. But he had no power to do it at the time that order was made, and this Bill is, of course, couched in language which is intended obviously to vali date that order, because it now; for the first time, speaks of a case in which a patent has been suspended in favour of any person. As far as I know, no patent has ever been suspended in favour of any person except the Thermit patent.


Mr Hughes - Are you talking about the Bill or the Act?


Sir WILLIAM IRVINE - The Bill. I want to say this, putting it shortly, that if the Minister wants merely to grant the same rights as the patentee had for the purpose of enabling that person - subject to all the disabilities of the patent, subject to the right of anybody to prove that there is nothing at all in it, that there is no monopoly in it - if he wants to transfer the right of a German enemy to a citizen of Australia, I have nothing to say in opposition, but, as I said before, it is a power in the hands of any Government, or any Ministry, which ought to be exercised with the utmost caution and watched with the utmost jealousy. It may be a power which it is very desirable for the Minister to possess; but, in order to grant that power, all Parliament has to do is to say that the Minister may invest some person with the same rights in a patent that the German patentee had. That is what should be done. It would not take the Parliamentary Draftsman five minutes to put that simple thing into a form which would give the Minister all he wants. If, as he pointed out, he wants to invest some person with that power, and to give him the necessary inducement to invest his capital, and, with that end in view, to grant him a monopoly, let him grant £he monopoly subject to the same conditions and the same risks that now exist in the German patentee from whom he proposes to take the patent. But, if you go beyond that, and say that the Minister or the Government may take any German patent out of the hundreds that exist in this country, and may transfer it to a particular individual, and render him absolutely safe from any attack, no matter how vicious, then the licensee to whom you grant that power will not only have his ordinary rights to sue for damages against an infringer if his patent is good, but you are also going to protect him by granting an inviolable monopoly with a penal provision, fixing the penalty for infringement at £500. By doing this you are not only introducing a very grave novelty into legislation - I do not know of any country in the world which has adopted anything like it in its patent laws - but you are introducing a power winch, with this or any other Government in office, is a power which ought not to be given.


Mr Fenton - Even if the licensee is an officer of the Crown?


Sir WILLIAM IRVINE - If you are giving the power you are giving it in general terms. The exercise of that power when in the hands of an officer of the Crown may be harmless, but the power itself is a mischievous one.


Mr Hughes -For what purpose is the transfer of a right made from a patentee to a licensee? Does it not arise out of the circumstances of war, and is it not for the benefit of the community?


Sir WILLIAM IRVINE - The AttorneyGeneral can only carry the principle of emergency to a certain extent. He cannot cover up everything by the war.


Mr Hughes - I do not wish it for one minute.


Sir WILLIAM IRVINE - I am prepared to support the Government in granting everything they ask that is essential, or that they consider is essential, for the prosecution of this war.


Mr Hughes - Does not the honorable gentleman see that we are keeping these German patents alive ?


Sir WILLIAM IRVINE - Yes ; I want him to keep the German patents alive ; but ought we not to keep them alive for our own benefit?


Mr Hughes - And how is that to be done other than by granting certain licences ?


Sir WILLIAM IRVINE - If the German patent is worth anything, if the German monopoly ought to exist here at all, I have shown you how you can transfer it to any body you like, and how you can give all the protection to which a German patentee would be entitled. What more do you want to give him? Do you want to give him a protection to which the German patentee would not he entitled? I say you are introducing a very mischievous principle into this legislation.


Mr Hughes - We are not considering the German patentee. We are considering the community and the position arising out of the power to infringe a patent with, impunity.


Sir WILLIAM IRVINE - There is always power to infringe a bad patent with impunity, but there is never power to infringe a good patent with impunity.


Mr Hughes - People do that, and chance the consequences.


Sir WILLIAM IRVINE - They do, but they have to take their chances. What I should like to know from the Attorney-General is, whether he desires to go further in this Bill than to take the right to transfer a German patent with all the protection which the patentee had in it.


Mr Hughes - So far as the licensee is concerned, yes; but so far as concerns the patentee, no.


Sir WILLIAM IRVINE - Is there any necessity to create a new and previously unknown monopoly - in other words, to make a rotten patent a good one?


Mr Hughes - Does the honorable member suggest that the Crown should be content with civil remedies?


Sir WILLIAM IRVINE - Certainly. If the Crown is not content with a civil remedy for an ordinary civil right-


Mr Hughes - But these are something more than ordinary civil rights.


Sir WILLIAM IRVINE - The AttorneyGeneral wishes to make them something more than ordinary civil rights, and that is what I object to. I am prepared to help the honorable member, if he desires facilities to invest persons with the ordinary patent monopoly - but no more than that - which the German patentee had, in order to encourage them, in the interests of the community, to make those articles which the honorable member says ought to be made, but if the honorable member wishes to invest the Government with power to create unassailable monopolies protected by law, the House ought to pause before giving sanction to any such provision. I venture to think that had a Liberal Government introduced a measure of this sort, they would have received criticism from the Attorney-General, compared with which my remarks on this measure this evening are milk and water.


Mr West - You charge us with changing our opinions when we change our seats.


Sir WILLIAM IRVINE - It seems as if honorable members opposite are changing not only their opinions, but their principles. However, 1 wish to deprive this discussion of all flavour of party politics, and I ask honorable members, on the statement of the AttorneyGeneral himself, whether it is necessary for him to ask the House to give greater power to the Government than that of vesting in those people whom he wishes to encourage to manufacture thermit or any other article the full authority which the patentee, whose patent is being suspended, possesses?







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