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Wednesday, 5 May 1915


Mr HUGHES (West Sydney) (AttorneyGeneral) . - I move -

That after the word " pounds," line 34, the following new sub-clause be inserted : - " (Xa) It shall be a defence to a prosecution under this section if the defendant satisfies the Court that a petition for the revocation of the patent, or for the removal of the trade mark or design from the register, as the . case may be, would be successful."

The effect of my proposal, if adopted, will be to enable the defendant to raise all the defences which could be raised in an action for infringement under the Patents Act. Under that Act, in an action for infringement, or a petition for revocation, certain grounds of defence may be raised. In Frost's Patent Law and Practice, Vol. 1, 3rd edition, page 297, the practice is made clear. Amongst the grounds for which a patent may be revoked are that the patentee was not the true and first inventor, that the alleged invention is not the proper subjectmatter, or that it lacks the essential element of utility or novelty, or that the specifications are defective, or on any one of these grounds singly. It may also be revoked on the ground that it was obtained in fraud of the rights of the petitioner. Also, where the specification directs a certain thing to be done, which turns out to be not only unnecessary, but also disadvantageous and useless, the patent may be revoked on the ground of false suggestion. I have clearly shown that under the general defence, which can be raised under the proposed new subclause, all the points can be urged which could be raised in an action for infringement.







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