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Wednesday, 5 May 1915


Mr BRENNAN (Batman) .- I think the House may congratulate itself that the Bill has brought from members of the Opposition expressions of opinion of a much more frank and hearty character than they were disposed to favour us with in connexion with a former war measure. With my friend the honorable member for Maribyrnong, I realize that if even a junior member of the legal profession rises to speak, his action immediately leads to the impression that he will naturally take that peculiarly technical and unstable view - often unpractical - known as the legal view, as against the view of those persons whose business it is to express practical opinions in matters of this kind. I have always felt, and I still feel, that there is not, in a matter of this kind, as wide a gulf between the technical and legal and the practical position as some honorable members suppose; and I should like to put forward one view in connexion with clause 3 which, perhaps, should be more properly debated in Committee, but which has been fully discussed on the second reading.


Mr Joseph Cook - That clause really is the Bill.


Mr BRENNAN - It contains the main principles of the Bill, and it is a curious thing that the Protectionist argument should have been so used to buttress that clause as it at present stands. Does it occur to honorable members that if the Protectionist argument is to apply at all the effect of this clause will be to protect German patents, because these German patents are to be suspended, we assume, for a period which will end either with the termination of the war at the earliest, or some time before the expiration of the period for which the patents exist ?


Mr Joseph Cook - The latter, according to the Attorney-General.


Mr BRENNAN - If it is merely for a brief period, then as soon as the war is over we may suppose that the original patentees will seek to become possessed of their patents again, together with all their patent rights. Many hope not, and I express no opinion about it, but I suggest that, as one phase of the question, these patent rights will be re-established, and in the result we shall have the extraordinary anomaly that we shall have been preserving from attack under a special form of Protection a patent which belongs to an alien enemy.


Mr Fenton - We commandeer it.


Mr BRENNAN - If we do, as the honorable member for Maribyrnong says, commandeer it, we may be prescribing for the unexpired period of the patent. A monopoly which is open to attack could not stand the test.


Sir William IRVINE - That is the suggestion, anyway.


Mr BRENNAN - Surely we ought to have some explanation from the AttorneyGeneral regarding this proposal. What is the object? I cannot conceive why these particular patents in the hands of a licensee are to be treated in a different way from other patents. Why should they be protected from, attack? Why should we say, as we are saying in this Bill, that we will protect patents owned by Germans - by alien enemies? We are going to take them over, and clause 3 establishes special laws for their protection. It may be that the patent to which th« law will apply will be a perfectly rotten thing. There are hundreds, I suppose thousands, of patents issued already, and to be issued, in Australia, which would not stand a moment's attack if they were to be attacked. Yet, if they are taken over as patents issued to enemy aliens, they will have the advantage of this clause, which protects them from oil attack, because the Bill imposes a very severe penalty, as has already been pointed out, upon any person seeking to manufacture the article in question. At the present time anybody may start manufacturing, and his right to manufacture is a matter to be tested under civil law. If that is Protection, it is the kind of Protection to which I do not, as a practical person, or as a legal person, propose to lend any support. Protection, as I understand it, is the price, or, as I prefer to call it, the subsidy, paid to manufacturers in the form of duty to enable them to set up local industries in this country. In that case, there is some competition at the worst, unless we have absolute prohibition. In the case of these patents we have absolute prohibition. A patent may be the rottenest in the world; it may be incapable of standing any investigation or opposition if such were applied to it; but because it has been taken over by the Government, and a licence issued to some persons to manufacture the article, it is to be exempted from the ordinary laws relating to patent rights.


Mr Hughes - I have already stated half-a-dozen times that that is not so, or, if it be so, it is not intended.


Mr BRENNAN - I am very glad to have that assurance; but the words of the Bill certainly appear to convey what I have stated, and I venture to suggest that they may convey that meaning to the Courts when they are called upon to answer any question relating to such patents.







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