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Wednesday, 20 June 1906

Senator Lt Col GOULD (New South Wales) 4-S7]. - Senator Symon has pointed out the difficulty which might occur to a man who registered a design and was unable to utilize it. A similar position arose during the consideration of the Patents Bill, which originally contained a clause somewhat similar to that now before us. That clause was so altered, however, as to provide that, if the owner of a registered patent did not proceed to manufacture it within two years after the granting of the patent to him it should be open to any person to apply to the Court for an order permitting him to use that patent on fair terms, or, failing that, to declare the patent void. If we had a similar provision with regard to registered designs the position would be met. Under Senator Symon's proposal, the foreign designer would be granted protection for only six months, whilst an Australian designer would be protected for five years, subject, of course, 10 the right of any individual to apply to the Court to use the design on the ground that the registered owner was not making use of it. If the Minister in charge of the Bill agreed to the adoption of a clause similar to that to which I have referred, the difficulties with which we are now confronted would be swept away. We should first of all follow the language of the English Act, and then add a provision similar to that in the Commonwealth Patents Act.

Senator McGREGOR(South Australia) £4.59]. - I trust that the Government will stand by the clause. I recollect the arguments which took place on the proposal to amend the clause in the Patents Bill to which Senator Gould has referred. I entirely agree with the attitude he takes up with respect to patents, but I would remind him that the position in regard to designs is altogether different. Inventions might be patented which could not possibly be manufactured within five years, but this clause deals with designers in a reasonable way. As soon as a design has been registered no one else will be permitted to introduce that design attached to an article in a manufactured state into Australia 'Unless within twelve months the owner Kas failed to apply it to something manufactured here.

Senator Lt Colonel Sir ALBERT GOULD (NEW SOUTH WALES) -Col. Gould. - The thing to which it is applied need not be manufactured here.

Senator McGREGOR - It must either be manufactured here or used within twelve months. The difficulty pointed out by Senator Symon is that a foreign manufacturer or producer of goods of any description might register a design here, and, producing those goods abroad, send them into this country for twelve months. In such a case I agree that a period of six months would be better; but there is a difficulty. We are applying this measure to both the Australian- and the foreigner - we are rightly applying the measure generally. An Australian registering a design may not be in a position to' have it attached to any article he manufactures or produces within twelve months. If, for instance, the design were applicable to calico or cotton fabrics, these are not manufactured here, and, before an order could be sent to England and the fabric received in order to attach the design, the twelve months would be gone. Senator Symon says that he does not want to apply this condition to the Australian designer, but to give the latter the full benefit of the work of his brains for five years or any number of years.

Senator Sir Josiah Symon - The period is five years in the Bill.

Senator McGREGOR - There is nothing magic about the period of five years, and we may amend that provision. Let us suppose a case in which an Australian registers a design consisting, for instance, of two butterflies and a black beetle, to serve as a design for wall paper, calico, butter, or anything else. There may be a foreign manufacturer who, as a design, has two butterflies and a grasshopper. There would be such a similarity between the designs that it would pay the Australian designer to register, and enter into an arrangement with the gentleman who owned the design of two butterflies and a grasshopper. The design would then have the run of the whole Commonwealth for five years, simply through the neglect on the part of Parliament to be firm, and make the provision definite.

Senator Sir Josiah Symon - Does the honorable senator think that the Registrar would register such a. similar design?

Senator McGREGOR - The other would be a foreign design.

Senator Sir Josiah Symon - It does not matter ; it is a good registration.

Senator McGREGOR - But it would not be registered. Cannot the honorable senator see that I do not mean that the twobutterflies and the grasshopper were to be registered here at all? The goods bearing that design would be manufactured somewhere else, and come in here ; but the Australian would register his two' butterflies and a cockroach. The other design would be so similar that it would take the market, and the gentleman with the two butterflies and the cockroach would make an arrangement with the foreigner to block anything else of that description coming into Australia. That is the reason I am so strong in supporting the Government in their endeavour to prevent any trickery of the kind after twelve months.

Senator Sir JOSIAHSYMON (South Australia) [5.5]. - I shall not enter on the entomological discussion which Senator McGregor has introduced, and which has confused the subject a good deal ; like the plague of flies in Egypt, it has thickened the atmosphere. I think there is' great force in the suggestion made by Senator Trenwith that there should be discrimination, and I commend the idea to the Committee. Senator Gould made a suggestion as to how the difficulty might be overcome, but I think that Senator Trenwith's proposal is the better. I suggest that clause 28 should be enlarged in favour of the local designer, who ought to be protected, because the object of all this class of legislation is to encourage the inventive faculty. My suggestion is that in clause 28 the term of twelve months should be enlarged to two years, but that the foreigner should not have the same benefits as the Australian designer in that respect. I further suggest that we should embody, in the form of a proviso, the substance of the Imperial enactment, as follows : -

Provided that if such design is used in an manufacture outside Australia, the period aforesaid shall be limited to six months.

That seems to me a perfectly fair suggestion. A period of twelve months is too short for a designer, seeing that the purpose of the measure is to encourage designing, and, on the other hand, twelve months or two years is altogether too long for the man who has already used the design in manufacture outside Australia. I quite understand Senator McGregor's remarks about bringing in goods, and so forth ; but six months is plenty of time for the purpose, because a person can register immediately, and he has six months in which either to manufacture or to allow Australians to get the benefit of his design. I move -

That the words " twelve months " be left out, with a view to insert in lieu thereof the words " two years."

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