1st Parliament · 2nd Session
The President took the chair at 2.30 p.m., and read prayers.
– I desire to ask the Vice-President of the Executive Council, without notice,whether, in view of the importance of the constitutional question which has arisen in connexion with the Sugar Bonus Bill, the Government will consider the advisability of asking for a call of the Senate on the day on which that question is to be considered?
– It is very desirable to deal with this matter as expeditiously as possible; and, in view of that necessity, I do npt see that there could possibly be time for a call of the Senate which would be effective. In addition to that, I have a very grave doubt as to whether there is any power to enforce a call of the Senate ; but that is a question which teed not be considered now.
– With regard to the question relating to Sunday and overtime work in New South Wales, the answer is as follows : -
Ihave had an inquiry made, but cannot find that any overtime due under the regulatious is being withheld. The sorters and others engaged on the English mail work asked for an allowance, but it was not granted, us they had not worked during a meal hour, and had not completed 88 hours work for the fortnight, to enable them to be paid overtime.
With regard to the questions relating to post and telegraph facilities at Georgestreet, North Sydney, the answers are as follow : -
With regard to the question relating to payments for over-time work to letter sorters, carriers, and other officials in the General Post-office, Sydney, the answer is as follows : -
All payments for over-time under the Public Service Act and Regulations are determined by the Commissioner, and the matter of payments for over-time in the General Post-office, Sydney, is now being considered by him.
With regard to the question relating to suburban deliveries, the answer is as follows : -
The Deputy Postmaster-General, Sydney, has reported that to provide a third delivery by letter-carriers in the suburbs of Sydney, where such delivery is not now made, would entail an additional expenditure of £819 for the first year, and an increasing amount for subsequent years. Also, that there is no justification for a third delivery in those suburbs.
Senator DRAKE laid upon the table the following papers : -
Correspondence with Union Steam-ship Company on refrigerating accommodation.
Report on European Archives.
Return relating to pay of warrant and noncommissioned officers on instructional staff.
Royal assent reported.
The PRESIDENT reported the receipt of the following message : -
Mr. President, Message No; 9.
The House of Representatives returns to the Senate the Bill intituled “ A Bill for an Act to provide for a Bonus to Growers of Sugar-cane and Beet,” and acquaint the Senate that the House of Representatives has disagreed to Amendment No. 3 mode by the Senate, for the following reason : - Because the Bill is a proposed law appropriating revenue or moneys, and Amendment No. 3 is an infraction of the provisions of section 53 of the Constitution, which prohibits the Senate from originating a proposed law appropriating revenue or moneys or from amending any proposed law so as to increase any proposed charge or burden on the people ; and the House of Representatives does not deem it necessary to offer any further reason, hoping the above may be sufficient.
The House of Representatives has agreed to all the other amendments made in the Bill by the Senate.
House of Representatives,
Melbourne, 14th July, 1903.
– I move -
That the message be printed, and taken into consideration to-morrow.
It is necessary that there should be some consideration given to such an important question, but I do not think there ought to be any longer delay than what I propose. It will be the first business taken to-morrow.
– I would suggest to Senator O’Connor, that if it is not convenient to deal with the message to-day, there will be little gained by taking its consideration tomorrow, so far as affording an opportunity to look into the question thoroughly is concerned, but if it is to be postponed, it should stand over until next Wednesday, by which time honorable senators would have had an opportunity of reading inHansard the reasons assigned by honorable members in the other Chamber for the attitude which they have taken. Of course if we are to have a debate to-morrow it will not be possible for honorable senators to make themselves so thoroughly acquainted with those reasons. The reports of the debate in the press are so abbreviated that Senator O’Connor will agree with me that it is not possible for honorable senators to fully realize the objections which were urged in the other House. The Senate very fully considered the matter when it was debated last week, and it is only natural that honorable senators should like to see all the arguments which have been adduced against its attitude.
– They have all been adduced here. There is nothing new to say.
– I believe that they have been adduced, but still it is just as well, if we are to re-consider the question, to know what honorable members in the other Chamber have said.
– It is rather a long delay.
– I should like to remind the Senate that it postponed the consideration of this matter for two or three days, in order that honorable senators should have a full opportunity of making themselves acquainted with all the information which could be obtained, and that it was very fully debated, with reference, I think, to all the authorities.
– Is there any reason for extreme urgency?
– I think there is.
– Does the honorable and learned gentleman suggest that we should take it at once? Senator O’Connor has thought well to postpone the consideration of the message.
– I am not quite sure whether, under the standing orders, it can be taken at once.
– We can suspend the standing orders.
– Yes. If there is any desire to deal with the matter, there is sufficient interval between to-day and tomorrow to enable honorable senators to acquaint themselves with all the bearings of the case. I know that the Bill is of considerable urgency. It will be remembered that when it first came up here, I asked the Senate to use unusual expedition in order that it might be passed by the end of the financial year, because it was desired that payments should be made under the alteration of the law which was embodied in clause 2. It was only because an amendment was moved by Senator Glassey that we were unable to get the measure put through with as much expedition as was desired. Solong as ample opportunity is given to honorable senators to understand thoroughly their action in all its bearings, it is desirable that the message should be taken into consideration as early as possible.
Senator MILLEN (New South Wales).In view of the importance of the question, I cannot refrain from expressing my surprise that any objection should be taken to the course suggested by Senator Gould. Whatever the Senate does in this matter will indicate the practice for all time. For that reason a little delay is as nothing in comparison with the importance of arriving at a correct determination. When I hear honorable senators say that we know all about the matter, I must take the liberty of contradicting them. I do not. From the statements which were made last week I arrived at the conclusion that there was only one way of ‘ looking at the matter, but I understand that arguments have been advanced elsewhere, and I claim a reasonable opportunity of making myself acquainted with them before I give a vote to determine the course of action of the Senate. For this reason I appeal to the honorable and learned senator who is in charge of Government business to-day to consent to the postponement suggested.
– I fail to see that there is any urgent necessity to deal: with this Bill to-morrow. We have not repealed the rebate provisions of the present law, and therefore the growers of sugar by white labour can be dealt with as in the past. Seeing that the question is of such vital importance as affecting the status of the Senate, some time ought to be given to us to consider the matter thoroughly in all its bearings. I earnestly hope that the Vice-President of the Executive Council will see his way clear to meet the request of Senator Gould.
– It was with a view of securing an interval before we considered this measure that I asked for a call of the Senate, and I am sorry that the Vice-President of the ‘Executive Council, did not see his way to fall in with that view. We are about to lay clown a precedent, and the more members of the Senate who are present when the matter is dealt with, the more likely we shall be to arrive at a decision which will do us credit.
– How many more senators would be here by next Wednesday 1
– No notice has been given to honorable senators that the Sugar Bounty Bill is to be considered. The measure does not appear upon the business-paper to-day. If it is allowed to stand over for a week it will be possible for the representatives of other States to arrive here in time to participate in whatever decision is arrived at. Telegrams can be sent to them in the various States, and there will be ample time for senators to come even from Western Australia. I do not see any advantage in deciding the matter to-morrow afternoon. There is not such great urgency about the passage of the Bill. We have the Sugar Rebates Abolition Bill still before us. I add my voice to those of the honorable senators who have urged the Vice-President of the Executive Council to allow the matter to be considered in a week’s time.
-Col. NEILD (New South Wales). - I also desire to add my voice to the requests for. a further postponement. This is one of those questions in respect of which a call of the Senate is eminently desirable. Even if, as the Vice-President of the Executive Council points out, there is no time in which to make a call, surely it will be better to delay the matter for a week. There will then be an opportunity given for many absentees to be present. The manner in which the other Chamber has dealt with the Bill has not been known to many of us for more than a couple of hours. We only learnt it from the morning papers on our way down to Melbourne this morning. I quite agree with what Senator Gould has said, that the newspaper reports are so abbreviated as to be unsatisfactory to us in attempting to come to any decision. We must be guided largely by what took place in the House of Representatives. For what purpose is Hansard if it is not to be available on an occasion of this kind 1 We pay thousands of pounds per annum for Hansard, and we ought to have an opportunity of perusing it in connexion with one of the most important questions that can come before the Senate. I take it that the Senate desires to do simply what is right. There is no element of party in this case, nor is there any element of party in any shape or form in Senator Gould’s request for an adjournment. There cannot be an element of party in it, because the leader of the party to which Senator Gould and others of us belong is, from what 1 see in the papers, diametrically opposed to the claim of the Senate. I submit, with others who have spoken, that this is really a matter of the gravest consequence, as laying down the course which the Senate will have to observe practically for all time. To rush to a decision without a proper opportunity for reading arguments which, I presume, were adduced with a view of inducing the Senate to take another course of action, is most undesirable from, the stand-point of a constitutional settlement of a vexed question. I hope that the Vice-President of the Executive Council will agree to the further postponement to Wednesday night.
– As I said in the few observations which I made in submitting this motion to the Senate, I see no reason personally why this business should not be taken to-morrow. It is very important. It seems to me that the arguments lie in a very narrow compass. They have been fully put on both sides, and I do not think that anything can be added in consequence of what has been said in another place. But, at the same time, I realize that it is of great importance to the Senate to have such matters settled deliberately ; and as evidently a considerable number of honorable senators think that sufficient information cannot be obtained by to-morrow, and would like to see the arguments used in another place, of course, I shall not throw any obstacle in the way of a further postponement. But I hope that honorable senators will be ready to proceed with the Bill on Wednesday. Therefore, by consent, I should like to alter my motion so as to provide that the Message be taken into consideration on Wednesday next.
– Perhaps the honorable and learned senator will take it as the first business on Wednesday 1
– I will take it as the first business.
Question amended accordingly, and resolved in the affirmative.
asked the PostmasterGeneral, upon notice -
– The answer to the honorable senator’s questions is asfollows : -
A return giving the information asked for will be laid on the table in a few. clays.
asked the PostmasterGeneral, upon notice -
– The answer to the honorable senator’s questions is as follows : - 1 and 2. As regards the military forces in the State of New South Wales, officers of the Reserve rank with the rest of the forces as junior of their respective ranks. In Victoria no distinction is made. In South Australia there is no distinction as regards the relative precedence of officers of the Reserve and active forces. Officers, however, permanently employed rank as senior of their respective ranks with officers not so employed. There is no reserve force in the States of Queensland, Western Australia, and Tasmania. In the case of the naval forces no difference in status exists.
asked the PostmasterGeneral, upon notice -
– The answers to the honorable senator’s questions are as follow: -
asked the PostmasterGeneral, upon notice -
If it is correct, will the Government answer the following questions : -
– The answers to the honorable senator’s questions are as follow : -
Assuming, for the purpose of this question, that the telegram is substantially correct :
– I move -
That the Bill be now read a second time.
The power to grant letters patent conferring a temporary monopoly is in the prerogative of the Crown. It is regulated in Great Britain by several Acts of Parliament, and it is regulated in the various States of the Commonwealth by their local Acts. It is proposed that this power of prerogative shall be exercised in the Commonwealth in future in accordance with the provisions of the Bill that is now submitted to Parliament. My right honorable colleague the Minister for Trade and Customs, to whose Department this subject belongs, and whose Bill this is, has requested me to say a few words with regard to the origination of the Bill in order that due credit may be given to those who have furnished valuable assistance to the Government in the matter. In April, 1901, a conference took place in Melbourne of the chief officers in the various States who had been engaged in the administration of the laws on the subject of patents, designs, and trade marks. The members of the Conference were Mr. S. S. Packham, of the New South Wales Patent Office ; Mr. G. Townsend, Registrar of Patents in Queensland; Mr. F. F. Tnrner, Commissioner of Patents, South Australia; Mr. R. M. Johnston, RegistrarGeneral of Tasmania, and then Acting-Judge Neighbour, of Victoria, who was chairman, while Mr. Oakley, of the Victorian Customs Department, was secretary. This Conference discussed the draft Bill, prepared by Mr. J. L.Watkins, parliamentary draftsman of New SouthWales, and that draft is the basis of the measure now presented. The Bill, as originally drafted, dealt with the whole subject of patents, designs, and trade marks, but, following a recommendation of the Conference, it has been decided to deal in the present Bill with the subject of patents only. The other two branches of the subject - designs and trade marks - will form the subjectmatter of Bills now in preparation. I mention these facts in order that due credit may be given to Mr. Watkins and those other gentlemen, and for the services they rendered the thanks of the Government are now tendered. The difficulties in the path of the Conference were, of course, very similar to the difficulties which have arisen in connexion with much of the legislation of the Commonwealth, inasmuch as the Conference had to endeavour to reconcile and make uniform the differing legislation of the various States on this subject. The whole of the legislation on the matter of patents in Great Britain, and in all British possessions, comes from one source, namely, the Statute of Monopolies, which was passed in the reign of James I. During that and previous reigns the practice adopted by the Sovereigns of granting monopolies to favoured individuals had worked verv badly. The system had caused great inconvenience and oppression, and the nation, at the time the statute was passed, was wrought up to a pitch of desperation in consequence of the abuses which had arisen. But in the Statute of Monopolies, which did away with these monopolies, an exception was made - an exception which recommended itself to the wisdom of, not only that generation, but succeeding generations, and which is the foundation of the patents laws of all British countries. I may as well quote the words of the Act of Monopolies, because part of them which are used in the Bill are, as I say, the foundation of the whole of our patents laws. ‘ After reciting that monopolies in the past have been greivous and inconvenient to the subjects of His Majesty, the statute proceeds to make all monopolies in the future illegal excepting
Letters patent or grants for the sole working or making of any manner of new manufacture within the realm to the true and first inventor of such manufacture which others at the time of making such letters patent and such grant should not use, so they be not contrary to law nor mischievous to the State b3’ raising of “the price of commodities at home, or hurt of trade or generally inconvenient.
The language, of course, is a little archaic, but it has been preserved in most of the statutes on the subject. Part of it is found in our interpretation clause, which retains the definition of the particular classes of invention which may be the subject of patents ; and for a good reason, because by adhering to the actual words which have been used in original Act, we get the benefit of all the judicial decisions which go back, I suppose, 300 years. The experience of nations has shown that a limited monopoly of the kind is justifiable. In nearly all British countries it is recognised that an artist or an author has a right to the creation of. his brain, and, in the same way, that a man, who by his inventive genius is able to devise a new method which creates wealth for the world should be permitted to participate in the benefits of his mental product. The right of monopoly, of course, is, in the interests of the public, limited ; but it is recognised, as .all nations have recognised, that if an inventor is nob able to get some profit, no encouragement is given to the inventiveness of the people. Recognising that inventive genius ismost valuable, we think it advisable that inventors should be able to reap some profit ; on the; other hand, it is. desirable that the period of monopoly shallbe limited so that the interests of the public may not be injured. In considering the subject, therefore, we have to bear in mind two points. We desire, first of all, to insure that men who invent new or improved useful methods shall obtain a certain amount of profit ; and at the same time we desire to safeguard the interests of the publicby insuring that the benefit of the invention shall be enjoyed freely by the public within a limited period. The four essentials of an invention which may be the subject of letters patent are these - first, it must be a manner of manufacture according to the definitions which have been laid down in a long succession of decided cases ; then it must be new, it must be useful, and it must be more or less ingenious. With regard to the first essential, an invention must be “ a manner of manufacture” within the meaning of the Statute of Monopolies. A scientific theory is no good - an idea may be exceedingly brilliant, and might be useful to the world, but unless it is shown that it can be applied in such a way as to produce actual material advantage, it is no good.
– Rain-making theories, for example.
– A rain - makingtheory would not be any good. That is classed as a scientific theory ; but an apparatus or machine by which rain could be produced would be a proper and exceedingly valuable subject-matter of a patent. But a simple idea is no good. Inventions generally which are the subject of patents are either combinations of different, kinds of material forming articles or new machinery, or new processes of manufacture. There must be something fulfilling the definition, according to the decided cases, of “a manner of manufacture.” Then the subject-matter of a patent must be new ; and the element of newness has been described under four sub-headings : -
In any case there must be the element of novelty. If it is anything, no matter how ingenious, which has been used before, or which lias been published, then it cannot be the subject-matter of a patent. Then the invention must be useful ; and this partly comes under the head of the definition of “ a manner of manufacture “ - it must be something that produces material advantage. Of course, the method that is adopted of remunerating an inventor clearly shows that the invention must be useful, because his profit is the result of the sale of the article or process, and, consequently, if an invention is not of any material advantage, nobody- will buy it, and there will be no profit. Then there must be more or less ingenuity. It was held, for instance, that an excavator for working on land, and for which a patent was taken out, could not be patented as an instrument for working in water, because in the latter case no ingenuity had been shown beyond that already displayed in the machine produced for land purposes. But very little ingenuity will be sufficient to upbold a patent if the result is to make a process very much better or more economical, or to improve the character of an article so as to make it superior to anything of the kind previously patented in achieving, as I said before, a useful end. As to the great value of some inventions which have been patented as fulfilling all these conditions, examples will occur to almost every senator. I may mention that of the candle wick. For generations I suppose an ordinary cotton-wick was surrounded with tallow or some substance of the kind, and as the candle burnt away the wick was left standing, thus necessitating the use of the snuffers and trays which I dare say some honorable senators remember. A poor result was got from tlie candle, and the light produced was injurious to the sight. It occurred to some person that by plaiting a wick, with one strand shorter than the others, it would always keep burning out. That small invention, I believe, made a fortune for the man who discovered it, and that fortune was nothing as compared with the enormous benefit conferred on mankind. I think it must be a very encouraging thought for a man engaged in any work, and especially in mechanical employment, and who may be earning, perhaps, barely enough to keep wife and children, that if he is only smart enough to see something just a hair’s breadth beyond what has been perceived by the generations of men who have worked before him, there may be a veritable gold-mine at his fingers end. This inventive genius does not come as the result of education ; though education may be useful here as in many other respects. A college or university education will not help a man very often in these advances in the mechanical arts, in which’ persons of all classes are employed. I think that we can say with regard to inventors, perhaps more particularly than with regard to any other class to whom we are indebted for the world’s progress, that they do not come exclusively from any one class. We are, perhaps, indebted for inventions more to those who have not had the benefit of early education than to those who have. Many of our most valuable inventions have been the discoveries of men who have never enjoyed the blessings of education. It is, therefore, I think, a very encouraging thought that it is possible for a man, whatever his employment may be, if he is only sufficiently observant, and chooses to exercise the faculties which God has given him, to hit upon an invention which may considerably increase the wealth of the world, and tend to his own comfort and the well-being of those dependent upon him. Having that in view, honorable senators can see .the great importance of our trying to pass a Commonwealth patents law which will give every possible encouragement to persons who may display inventive genius. It will not be desirable that I should go into details in connexion with the measure, but I propose to run through the principal parts of the Bill, in order to show how it provides for the obtaining of patents, and for the working of inventions which have been patented. I may say, first of all, in passing, that by proclamation the administration and the records of all the States Patents-offices will pass to the Commonwealth, but all rights under the States Acts are expressly saved. It will be found that clauses 28 to 51 deal with the most important question of who may apply for patents.. I point out that here, as in other parts of the measure, this Bill differs from the laws which have been passed previously on the subject. The Bill differs from the English law, and from the law of all the Australian States, with the exception of Victoria and Western Australia. In England, and in four of the Australian
States, it is held, following an old decision under the Statute of Monopolies, that a person who introduces an invention is entitled to a patent. We say that that may have been a correct thing to provide at a time when the difficulty of communication between countries was very great, and when it was a matter of almost equal importance for a man ,tO introduce the invention of another, as to discover the invention himself. We think that now that the world has grown so much smaller, because communication has been rendered so much more easy, this particular right of monopoly should be granted to the inventor, and to the inventor only. That is to say, that when a man invents a thing it is the coinage of his own brain, and it should not be open to another man to apply, perhaps in another country, for a patent for that invention. He did not invent it ; he simply found out that another man had invented it, and he applies for a patent. We propose that the person who applies for a patent must be the inventor or his representative. Clause 28 states exactly who may apply, and in every case it must be either the inventor or his representative.
– It may be his assignee or nominee.
– Yes; I use the word representative in a general sense.
– At any rate, it will prevent any unauthorized application.
– The person who applies must be either the inventor, or some person deriving his rights from the inventor, and not merely an introducer.
– It might’ be an introducer with the consent of the inventor.
– Yes ; the inventor may make his application himself, or may assign to any one his right to do so. Then there is a provision that he must apply with either a provisional or a complete specification, and if lie applies with a provisional specification, the complete specification must be furnished within nine months, or if an extension of time be granted, at least within ten months. That is I think all I need say with regard to those who may apply’ for a patent. The next important feature is the provision dealing with the work of the examiner, because there again this Bill differs somewhat from the law in some of the States. In Victoria, Queensland, and also in Canada, it is held that it should be the duty of the examiner to ascertain whether an invention has the merit of novelty, and whether there has been any prior publication. In this Bill it is notproposed to- throw that duty upon the examiner. Of course these are points upon which it may be possible to upset a patent, but we do not propose to make that a part of the duty of the official examiner. The official examiner’s duty is simply to report on the title, the description of the invention, and whether the application and specification are in order. He has to find out if the complete specification agrees with the provisional specification, and also whether the particular article has been already patented.
– Is he supposed to make a minute investigation in connexion with all these points after the provisional application is made 1
– If he is not satisfied he may require compliance with certain directions as to amendment of the specification, or he may fix the application for a. later day than that on which it was lodged. That will be found in clause 38, and clause 39 gives an appeal to the law officer, who is either the Attorney-General or the Crown Solicitor. If the Commissioner is satisfied’ that these conditions have been complied’ with, and that the article is not already patented, he may accept the specification.
– What if it is not a. matter which ought to be patented ?
– On the ground of prior publication or want of novelty ?
– Want of novelty, orthat it does not display ingenuity.
– I shall come to that directly, but I point out, in the meantime,, that by this Bill the onus is thrown upon the persons interested to oppose the grant of a patent on those grounds.
– If the examinerfound that there was not novelty or ingenuity he would not issue a patent.
– He would not haveto find novelty or prior publication. I thought I had made that clear that is not a. duty thrown upon the examiner by this Bill.
– That want of investigation is one of the things whicli renders patents so valueless, a,nd which puts patentees here in such an unfortunate position as against those to whom patents aregranted in either America, Germany, or Prance.
– There are advantages and disadvantages. It is, I think, rather rauch to throw upon the official examiner the task of deciding the question of novelty or prior publication.
– It is done in other, countries.
– It is done in some other countries, and in some other countries it is not clone. We have examples of both systems. Some countries establish one plan and some another.
-Col. Gould. - We must make a patent a reality as far as possible. Of course, the Crown could never undertake to guarantee its novelty, but it could inquire as to its novelty.
– If the examiner is not able to do that in order to insure absolute correctness in his description, the patentee is only put in a worse position because he may rely upon the examination of the official examiner and may have his patent upset afterwards. If the examiner is not satisfied upon the point for. which the matter is referred to him he may ‘ determine whether reference shall be made to a prior specification by way of notice to the public. That is to say if he finds there is a prior specification of the same character he may refer to that in his report so as to give notice to the public that the article has been the subject-matter of a previous specification, or under paragraph (b) of clause 43 he may except from the patent any State to which the objection applies. In other words, if he finds with regard to one particular State that an article has been patented there, he may accept it so far as that State is concerned, or he may altogether refuse the application.
– Why should lie refuse the application if there is no opposition ?
– Because he is charged with certain duties. Supposing” he finds that there is not a correspondence between the complete and the 1 original specification, or that the article has been already patented, he may refuse the application. If the examiner reports to the Commissioner, and the latter is satisfied that the article has been patented, the simplest thing for him to do, I should think, would be to refuse the application. Except where an application has been lodged, the complete specification must be accepted within twelve months, or else it lapses. It will be noticed that it is made clear that the protection afforded to a patentee is to run from the date of the application. As soon as he has complied with his provisional specification he is to be protected, so that he can go on working his invention without any fear of losing the advantage’ of his patent. We now come to the method by which the granting of a patent may be challenged. The grounds on which a grant may be opposed will be found in clause 52. -Notice of opposition must be given within two months, or under certain circumstances within three months. The extension of the time by one month is allowed in certain cases. The grant may be opposed on various grounds. Speaking colloquially, an opponent may say - “ This is my invention, and not yours “ ; or “ You did not get this invention from the inventor”; or “The invention has been previously patented”; or “The complete specification differs from the provisional specification “ ; or “The invention is not novel “ ; or “ It has been published.” Whenever notice of opposition is given on any of these grounds, the Commissioner must give notice to the applicant. And he hears and decides the question, subject to an appeal to the “ Supreme Court,” which is defined by clause 4 to mean -
The Supreme Court of the State in which the Patent Office is situated, or a Judge thereof.
So long as the seat of government is in Melbourne the appeal will be to the Supreme Court of Victoria, and when the seat of government is in New South Wales it will be to the Supreme Court of New South Wales.
– Why not to the Supreme Court of the State in which the patent is applied for ?
– Because the central registry will be at the seat of government.
– That is no reason why the appeal should be taken there.
– The action is that of the Commissioner, who of course must have some head-quarters.
– Why not to the High Court ?
– The High Court would be very much better than the Supreme Court of Victoria, but perhaps it will have too much to do.
– In this Bill it could’ be provided that the appeal should be dealt with by the High Court, and pending its establishment; by the Supreme Court of the State in which the application was made.
– Perhaps it is not advisable to decide what work shall be thrown on the High Court until we know how it is to be constituted.
– Clause 53 seems to leave it to the Commissioner to prescribe the time and place for his own hearing.
– I hardly think so. I wish to draw attention to clause 56. It seems a very reasonable thing that a patent of more than 100 years’ standing should not count for anything. If an invention has not been used within the Commonwealth for 100 years, it may be patented as a new one.
– In England 50 years has been substituted for 100 years.
– Perhaps so. I dare say that if we had proposed 200 years some honorable senator would have asked that the term should be reduced to 100 years.
– Is not that rather in conflict with paragraph (/) of clause 52 %
– No. The consideration for granting letters patent is, that a man has a valuable secret which he is willing to give to the public in exchange for this limited monopoly. If the thing has been published in a book it is no secret, and, therefore, although he may, perhaps rightly, claim that he was the inventor, he is not entitled to ask for an exclusive right of property.
– Clause 56 gives him a right which senators say he ought not to have.
– No. The sub-clause I am referring to deals with the description in a book, while clause 56 deals with the patenting or use of the article -
A prior patent, or a prior application for a patent, or ;i prior description of tin invention granted, made, or published more than 100 years before-
– “Made or published.”
– I see now that clause 56 places a limit on paragraph (_/’) of clause 52. A prior publication, made more than 100 years before, would not affect the validity of a patent. Clause 57 deals with a point about which there has been a difference of opinion, and that is that where there are two or more claims in the complete specification one claim may be held to be bad, without affecting the validity of the> other claim or of the patent. Now we go a stage further, to the benefit that is conferred upon the patentee. ‘ He gets the soleright to all the profit which may attach tothe manufacture and sale of the article throughout the Commonwealth, unless,, under the provision to which I drew attention previously, any particular State is excepted ; if not, his -right extendsover the whole of the Commonwealth for. a. period of fourteen years, and the patenthas to be sealed within sixteen months. In clause 80 we have a provision by which an extension may be granted for seven or fourteen years beyond the first fourteen years, but that privilege is very carefully safeguarded. The patentee has to give notice that he is going to apply for an extension six months before the expiration of his first term, and any one may enter a. caveat. The court will have regard to the nature and merits of the invention, and. also to the profits of the patentee, and may order an extension or grant a new patentin case it decides that the patentee has not been adequately remunerated for the timeand trouble he has bestowed upon thearticle. I ask the Senate to take notice of the fact that, if the court decides to grant a. new patent for the extended period, it may impose such restrictions and conditions as. it may think fit. That is a great powerto ask for, but it is possible to conceivethat there may be cases where an inventor, for certain reasons, has not had. a proper opportunity of recouping himself for the expenditure of his time and money ;. and if no advantage is to result to the public from terminating his patent rights, then the court may, subject to certain conditions and restrictions, grant an extension of the time for a further term, or the grant of a new patent, if it sees fit. The matteris absolutely in the discretion of the court.
– A most unsatisfactory place.
– I thought that the honorable senator was- a strong believer in placing these matters in the hands of the Judiciary.
– The court is a propertribunal to interpret the laws, but not to say what is or what is not an adequate recompense to an inventor.
– I should think’ that this is quite a proper subject to be within the cognizance of a court. Clause Ml provides for additional patents. Where a man has obtained a patent for an article, and wishes to patent some improvement - variation or addition - he may get an additional patent for the unexpired term . of his patent on payment of half the fee.
-Col. Gould. - The additional patent is to be granted by the court ?
– No; it is to be granted by the Commissioner. It is granted in the same way as the other patent. Instead of a patentee asking for a fresh patent, he comes along with his specifications and applies for an additional patent.
– Is he bound to apply for an additional patent 1
– Tt is a most unfair proposal.
– Why t It is only a matter of fees, as I read this clause. Instead of having to take out a new patent and pay the full fee, the patentee may get an additional patent for the unexpired term on payment of half ‘the fee. If he applied for a new patent he would have to pay the full fee.
-Col. Gould. - But then he would have the patent for the full term.
– If it pays the patentee to pay the full fee and enjoy the full term, he can do so.
– But the PostmasterGeneral said just now that it was not optional with the patentee whether he took out an additional patent or a new patent.
– I think that the honorable senator, must have misunderstood me. I say that the patentee may apply for an additional patent, and then he only has to pay half the fee. Clause 82 deals with the revocations of patents by petition to the Supreme Court. The petition is tobe presented either by the Attorney-General by any person authorized by the AttorneyGeneral, by a person alleging fraud, by a person claiming to be the actual inventor, or by a person claiming that the article has been publicly manufactured or sold within the Commonwealth. Those are the grounds upon which applications may be made for revocation. Of course, this procedure takes the place of the old scire facias procedure, which is done away with. All applications for revocation of letters patent must be by petition. If honorable senators will turn to Part V. they will see that it contains very important provisions, and that it differs somewhat from the legislation of some other countries. In this matter we are following particularly the legislation of Canada. It is provided that a man who gets a patent shall be required within five years to work it in Australia. If he gets a patent for an article or a piece of machinery, or a process, he must within five years have it in operation in Australia.
– That is the cloven hoof.
– I am sure that the further provision will hurt Senator Pulsford very much - that- within four years the patentee must cease to import the invention from abroad.
– King Charles’ head !
– The object of the clause is as follows : We do not want a man to get a patent in this country and then simply’ import the article from abroad, reaping the profits. The clause to which T refer is taken principaly from the Canadian Act. It was found necessary in Canada, because smart men from the United States came across- the border, took out patents in Canada, and then supplied the article from the United States. Following the example of Canada, we propose that when this advantage is granted to a man, he must make the -article, whatever it is, within the Commonwealth within a limited time. If that is not done - that is to say, if the patent is not being worked within the five years, and if there is a continued importation of the goods - the AttorneyGeneral may petition the court for a revocation of the letters patent. Another remedy is provided in clause 85. That is, that any person interested may present a petition to the Commissioner, alleging that the reasonable requirements of the public have not been satisfied ; that is to say, that though a patent has been granted, in consequence of the patentee not being diligent in working it the conditions have not been fulfilled.
– That is as fine an opening for blackmail as I have ever had occasion to look at !
– The honorable senator will, perhaps, tell us what would happen if we had not a provision of this kind. It would be competent for a man to patent an agricultural implement or something of that kind, and then to sit down and do nothing, whilst the public are precluded from the use of the article, and perhaps from the use of the perhaps very clever idea embodied in the specification. In that case a member of the public can go to the Commissioner and represent that the public are not able to get the article which has been patented. If the Commissioner is satisfied that thereasonable requirements of the public are not being complied with - and what will constitute reasonable requirements in that case is expressly provided for - he may require the patentee to grant licences for the manufacture of the article and the carrying out of the patent, so as to insure that the patent will be worked. The sixth sub-clause of clause85 provides that the “ reasonable requirements of the public “ - shall not be deemed to have been satisfied if by reason of the default of the patentee…..
I think that that is clear, whatever opinion there may be about the merits of it. It will prevent a man from getting a patent for a useful article, and then sitting down andnot working it. To go back to the original point, the public have a right to demand that a patentee shall work his patent. A man gets letters patent granted to him, giving him a limited monopoly in exchange for his secret. He is bound, in return, to give that secret to the public. He does that in his specifications ; but he is acting injuriously to the public if, having done it, he will not work his patent himself, and is not willing to let anybody else work it.
– Suppose he keeps his patent in his mind, and does nothing more? He is not injuring the public.
– Then he does not get a patent. But a patent is granted to him on condition that he shall put his invention at the disposal of the community. He is not to be allowed to reap the profits from it - perhaps by exporting it - whilst not allowing the public of Australia to use it. I think that when honorable senators look into this provision they will see that something of the kind is necessary.
– I do not think that any State has granted compulsory licences.
– No; these licences are to be granted on such terms as the court shall see fit, and an appeal to the Supreme Court is provided for. The appeal is allowed to insure that no injustice will be done. Part 6 deals with “Infringements of Patents.” I need not say much about this portion of the Bill. It deals more particularly with the new method that has to be followed in order to discover and punish infringements. Part 7 deals with the rights of the Crown. It was formerly held that letters patent being granted by the Crown did not bind the Crown, and consequently a patent might be used by the Government. But this part of the Bill makes it quite clear that a patent does bind the Crown. At the same time it provides that an invention may be used by the Government of the Commonwealth or by the Government of a State on terras that may be agreed upon with the patentee; or, in the event of a failure to agree upon any terms, payments may be made by arbitration. Clause 91 is a very necessary one, providing certain special conditions in the case of improvement in instruments or munitions of war.
– Compulsory licences seem to be in force in Queensland, Tasmania, and Western Australia, but no application appears to have been made yet for them.
– Quite so ; the power exists in England, Queensland, Tasmania, and Western Australia. The very fact of the power being there may render it unecessary to put it into force. So long as it is made perfectly clear that a man who has obtained a patent must work it, there may never be a necessity to put such a provision as this in force. But it is exceedingly useful to have the power. Part 8 deals with patent attorneys. We call them patent attorneys, but they have been previously called patent agents.
– It is the American term.
– I do not know that it matters whether they are called patent agents or attorneys. The object, of course, is to insure that the men who do the work of obtaining patents shall have the requisite knowledge, skill, and ability, and the Bill provides that persons who have been acting as patent agents in any of the States for six months prior to the introduction of this Bill may become patent attorneys without passing the prescribed examination. Otherwise they have to pass the examination. There is also a provision that all practitioners at the principal Registry of the High
Court, and all solicitors of the Supreme Courts of the States may be patent attorneys.
– Is there any indication of the nature of the examination t
– No ; it is to be such examination as may be prescribed.
– It will be provided for by regulation.
– Yes ; we could hardly put all the regulations with regard to the examinations in the body of the Bill. In the matter of fees, it is provided in clause 106 that the fees in the second schedule shall be the fees chargeable; and by the third sub-clause it is provided that the Governor-General -
May by regulation reduce the fees specified in the second schedule.
The difficulty up to the present has been that the fees vary throughout the States. AVe are endeavouring in the Bill to fix the fees at as low a figure as we reasonably can, bearing in mind -that, whereas at present a patent obtained in a State is good only in that State, a patent obtained in future will practically, in all cases, give a right coextensive with the Commonwealth. The fees previously have been as follows : - New South Wales, £5 ; Victoria, £9 ; South Australia, £8 ; Western Australia, £18 ; Queensland, £1S ; and Tasmania, £38. In- cidentally I may mention that the fee in New Zealand is £37 10s.; in the United States of America, 35 dollars ; and in Canada, 60 dollars. In England the conditions are rather peculiar, because, though a small charge is made, there are continuous payments which amount, during the whole of the period of the patent, to £99. The fees proposed in the Bill are - On filing, £1 ; on the acceptance of the complete specification, £2 ; preparation of patent for sealing £5 ; and at the expiration of the seventh year, £5. That is something more than the lowest fees charged in any one particular State, but considerably lower than the fees charged in other of the States.
– It is a little more than what is charged in the United States.
– That may be. As I pointed out, there is a provision in the Bill that the fees, while they cannot be increased, may be reduced. Avoiding the mere machinery clauses, there is only one other matter to which I desire, to refer. Clauses 117 and 118 deal with the very important subject of reciprocity. Section 103 of the British Act of 1883 provides for international and colonial agreements, and at the present time there is a Convention of States for the purpose of endeavouring to arrange mutuality in regard to the patents. Up to the present only Queensland and New Zealand of the Australasian States have given in their adhesion. The principle is simply that where, by mutual agreement, an English Act by Order in Council is extended to any British possession, then priority is given to the applications of persons who have already secured patents in Great Britain.
– If lodged within a certain time.
– If a person who has obtained a patent in Great Britain lodges an application in a reciprocal State within seven months his application is given priority. At ‘the the present time this arrangement has not been largely availed of, but it is as well to have a provision of the kind in the Bill in case it is desired by-and-by to have reciprocity ; and clause 118 make possible mutuality between the Commonwealth and other British possessions.
– Although those other possessions may not be within theUnion ?
– Although they may not be within the convention to which T have referred. This, however, is a matter which could be discussed more in detail in Committee. I hope I have been able to give the Senate a general idea of the scope of the Bill, and the principles upon which it is based.
– Can -the PostmasterGeneral give any idea of the cost of the Commissioner and other officials, and of the revenue likely to be received 1 Will the Department be self-supporting ?
– That depends on the fees which may be fixed. The extent to which applications for patents will be made is a very uncertain factor. With a little preparation I shall be able to give the number of applications for patents which have been made in Great Britain and the principal British possessions ; and that might afford honorable senators some idea of the extent to which this patent law is likely to be availed of. The scale of fees has been made low in the hope that the inventive genius of the people may be stimulated, and that there may be a great number of applications. But very uncertain factors have to be relied on in making a calculation as to whether a Department will be self-supporting.
– We ought to know something about the total expense of the upkeep of the central office.
– If the expense were twice what it is likely to be, this Bill must be passed.
– We are long past the time when the Crown or the Government expected to gain anything out of monopoly. The desire is to fix the scale of fees so low that it will be no bar, but an encouragement to the inventive genius of the people. If a sufficient number of applicants come forward, we hope the expense of the office will be met ; but it is impossible on such uncertain data to furnish details.
– Is it essential to centralize the whole administration ? Could there not be deputy commissioners in the various States ?
– Provision is made for registrars in .the various States.
– Will these registrars have any of the powers of the Commissioner 1
– Expenses would be very greatly increased by decentralizing the administration ; and we are in a measure compelled to centralize for the simple reason that the main object is to bring everything to a focus. It has first to be found whether a patent is new, and the difficulty would be increased if there were six commissioners instead of one.
– What is proposed to be done with the existing Patents-offices in the States?
– Expressing my own opinion, and not absolutely binding the Government, I have no doubt that the present registrars will, as in other similar cases, be retained in order to provide a channel by which applications may come to the head office.
– Who will pay their salaries t
– The salaries, of course, will come out of the consolidated revenue ; but we hope the applications will be numerous enough to meet expenses. There is no doubt that, in course of time, as the officers in the various States complete the work in hand, economies may be effected. At first, however, seeing that the rights of each State are safeguarded by the
Bill, a good deal of the -work will have to be conducted as in the past.
– Is it not rather overcentralizing to confine all the business to one court, when there are six other courts capable of dealing with it 1
– That is a point which has been raised before, and which may be discussed ; but it seems to me that there must of necessity be one central office at the seat of government, and that the most convenient and natural course is to carry appeals to the Supreme Court of the State in which the central office is situated.
– Is any provision made for appointing deputy commissioners in the various States ?
– I think not.
– Then everything must be submitted to the head office ; and a man in Western Australia, for instance, will have to send his application to Melbourne. . Of course, I know that all applications must ultimately go to the central office in order that conflict may be avoided.
– I do not think there would be much saving in appointing deputies. The Bill provides for patent attorneys, and an inventor can as easily apply to the Commissioner as to a deputy.
– But would it not be more convenient if an’ inventor at Perth could consult an agent there, and have his ‘ application lodged in his own State t The application could be ultimately dealt with in Melbourne, but an inventor would have a local office at which he could obtain information.
– Then an agent in Perth would not be much more than a conduit pipe leading to the head office.
– Only to a limited extent.
– I should be very glad to take the matter into consideration when we are dealing with the Bill in Committee. It appears to me, however, that there is so much need for secrecy, and for the comparing of specifications, that we are almost compelled, whether we desire it or not, to have one central office, and I do not think it would tend to economy to have deputies in the various States.
– We have to con:sider the convenience of the men who desire to take out patent rights, and not only the convenience of the Crown.
– If it could be shown that the advantage, as a matter of public convenience, which could be derived from maintaining deputies in all the States simply for the purpose of receiving applications for patents and handing them on to the central authority would more than balance the expense involved, the matter would be worthy of consideration, but it appears to me, at the present time, from the nature of the work to be done, that we can hardly avoid centralization.
– If the honorable and learned senator will instruct his -draftsman to draft a clause, he will find no difficulty in dealing with the matter.
– There would probably be no difficulty in drafting a clause, but what the honorable and learned senator desires, apparently, is that in the same way as we have done in connexion with the Postal Department, we should have a deputy in each State to attend to all the business of that particular State, receive applications, and send them on to the central office. It seems to me that that would involve a great deal of unnecessary expense in the duplication of officers without any compensating advantage.
– We cannot consent to unification. This is a federation, not a unification.
– We have heard from the speech of the Postmaster-General very much that indicates that the Bill, the second reading of which he has just moved, is very faulty in many details. I think I shall also be able to show that it is faulty in something more than detail. That it is crude, a perusal of the measure readily shows ; and the interjections that have been made during ‘the honorable and learned senator’s speech prove also that it is ill-advised in many particulars. I regret that in the preparation of this Bill the Minister in charge of the matter did not avail himself of the skilled knowledge of any one connected with the working of patents throughout the Commonwealth.
– Surely the honorable senator did not hear what I said 1 This is the outcome of a conference of the chief officials.
.- Exactly. I know what took place. I am not talking about officials, I am talking about those skilled in the working of patent laws. What did happen was this : a Minister who had no experience whatever of patent laws and patent operations did not secure the assistance of any one of the gentlemen who have been carrying on the work of patent attorneys or patent agents, but simply got together a few recording angels in the form of officials. What was this conference of which the Postmaster-General speaks 1 There were only two officials present whose exclusive official work it is to deal with patents and like matters, and of these one was present only for a very short period, and the proceedings have been kept dark. Some of us have tried to obtain a knowledge of what this conference did, and what it cost. We have never been able to get the slightest information. I suppose the cost of the conference was provided for in one of the numerous Appropriation Bills we have assisted in passing, but we never knew even what it amounted to, and we never knew, and do not know to this day, what those present at the conference did. We do not even know that this Bill is the outcome of their feeble deliberations. It is known that there is a little body, or the remains of a ‘ little body, that takes an interest in the passage of this Bill. They then patted it on the back and glorified it. This is a little institution I believe, called the Australasian Institute of Patent Agents. It is doubtless a very important institution. I believe that no leading member of the profession of patent agents is a member of it, and it numbers actually eight members. Its revenue .for the past year amounted to £16 16s. - eight members, at two guineas each. Therefore, the honorable and learned senator, when he tells us that this Bill is the outcome of a good deal of investigation, has been misinformed. We know Senator Drake too well to believe that he would come here and make any statement which he did not feel perfect confidence in making, but the honorable and learned senator has simply been ill-advised if, as no doubt is the case, he has been assured that this Bill represents any mature consideration on the part of those who have for a great many years in different portions of the Commonwealth been carrying on the duties and the active work of patent agents. Necessarily a patent agent knows more than a recording officer who simply chronicles, dockets, and puts away applications for patents. I desire in a few words to .chronicle some of the objections to this Bill. I shall chronicle them rather as a category than as an exposition, and I shall make the chronicle as brief as possible. To begin, it is proposed that there shall be a political law adviser retained to the depreciation of the status of the Commissioner of Patents. The Commissioner of Patents instead of being practically a judicial official is to be a mere cipher in the hands of the Law Officer who may or may not have any knowledge of patent matters. The Crown .Solicitor may or may not know anything whatever of patent laws, but he may act as Law Officer, and appeals are to lie to him from the Commissioner of Patents. It appears to me that if we are going to set up this great central office, this centralization of work, we should surely have a Commissioner of Patents sufficiently remunerated, and possessing the intelligence and knowledge necessary to enable him to carry out the judicial duties connected with the Patents-office’. But when we have got this high officer, who is supposed to be already appointed - because it is a matter of rumour that the Melbourne Patent agent is to have the position in his pocket–
– I never heard it.
.-When he is appointed, there is to be the Crown Solicitor, or some law officer, who is at any time to take the wind out of his sails, and do as he thinks fit, and not as the Commissioner of Patents desires. The Commissioner necessarily ought to be the superior authority in matters of this kind, because the Crown Solicitor, if he is to be law officer, will have a thousand and one things to do in connexion with all the Acts on the statute-book, whilst the Commissioner of Patents will have to deal with but one statute.
– I think that Queensland has a law officer entirely devoted to the work.
.- No doubt. This Bill, as is the case with respect to every Bill introduced by this Government, provides for numerous penalties, but in this case the penalties are all monetary, and if an offence is committed by an impecunious person, there is no penalty at all provided, and he gets off scot free, unless we are going to revive imprisonment for debt, or to imprison him for contempt of court.
With reference to the powers of the Commissioner of Patents, I will draw attention to the fact that this is to be a great centralization scheme, and the Commissioner is to be given authority to summon witnesses from every portion of the Commonwealth. Who is to pay their expenses, the cost of their time and so forth ? That is not at all properly provided for in the Bill, but there is a penalty of £50 provided for the man who does not come from the four winds of the Commonwealth at the direction of the Commissioner of Patents. There is no such authority at the present time existing in the Commonwealth. I suppose that when we see it we shall find that there is some provision of the kind made in the Judiciary Bill, but I take it that that measure will safeguard the rights, convenience, and expense of’ witnesses. This crude, illadvised, and ill-drawn measure does nothing of the kind. It simply sets up a Commissioner of Patents who can summon people from the length and breadth of the Commonwealth to come and give evidence in Melbourne. Fees are not prescribed. We are, no doubt, to hear more about them by regulations.
– The fees are set out in the schedule. Does the honorable senator mean fees for witnesses?
– Yes, and for examinations and various official acts. There are plenty of fees to be provided for in addition to those for obtaining a patent. There are fees of various kinds for inspections and examinations. A patent requires to be examined by all sorts of different authorities, according to its nature. These fees are all to be, “as prescribed.” I venture with a great deal of humility, and, at the same time a great deal of confidence that I am right, to protest against Parliament abandoning its functions and powers in connexion with almost every Bill which is brought before it, and simply leaving it to the Executive Government by regulation to clothe with flesh the skeletons of legislation that Parliament passes. To leave everything “as prescribed,” as we find it in one Bill after another that comes before us, is a little painful to those who have any knowledge, as the majority of honorable senators have, of the fact that legislative measures used to be framed in a very different manner, and with some regard for the obligations and powers of Parliament which are now being wafted away by means of regulations made privately and adopted hurriedly, and without consideration. In many cases they are never considered by the Cabinet at all. They are merely drawn up by the Minister in charge of a particular Department, submitted to the Executive Council, and accepted as a matter of course.
– How does the honorable senator know all this 1
– I cannot disclose confidences made to me, even by the honorable and learned senator’s own colleagues, but if I could I should satisfy him that I am telling the truth.
– As the honorable senator knew which was to be the Federal site, he should know something about this.
.- That is a horse of another colour. There is one other matter to which I should like to refer, and that is that a non-resident of the Commonwealth is not permitted under this Bill to apply for a patent, except through an Australian agent. He cannot approach the Patentsoffice direct. Why should that be? Why should a man in any part of the world be compelled by law to employ the services of some person to do that which he can do perfectly well for himself? I think that here there is an excess of enthusiasm.
– -Where does the honorable senator find it ?
– I cannot name the clause just at the moment, but I shall mention it later on. When making my transcript of notes on the Bill, I omitted to put down the number of the clause.
– I am afraid that clause has not got a number.
,- There is no provision made for subdividing an application when it is held to contain in more than one invention. That is a matter of the gravest consequence. Any one with a knowledge of patents will know that such a provision should certainly be made. Then the Commissioner is given the power to draft the title of the invention, and to dictate amendments instead of leaving those things to the inventor and his own counsel, as is the law at present, I believe, in all the States. I do not see why, when incorporating sections of the English law, it was necessary to adopt new phraseology. The phraseology of the English Acts is familiar to the courts, and decisions have been obtained in many cases at great cost.
Although tens of thousands of pounds have been spent in obtaining an interpretation of the English laws, yet, when portions of these laws are incorporated in this Bill, the phraseology is mangled, and new terms are used. No allowance is proposed to be made in the case of many acts which will require extra time. I take it that instead of drastically laying down an arbitrary limit of time there should be some discretion left to the Commissioner. I have complained of the draftsmanship of this measure. Various words are used to describe the same thing. The words “left” “ lodged “ and “made” are all used for the same act in different parts of the Bill. Another very important matter is that the mortgagee of a patent is given power to amend the patent without the knowledge of the mortgagor, and, of course, by that means he can simply alter the patent out of existence. While the mortgagee can alter the patent without the knowledge of the mortgagor,- the latter cannot alter the patent without the knowledge of the former. That provision, perhaps, is as it should be, because the mortgagor might alter the patent out of value. The next point I come to is one which Senator Drake has dealt with, and that is the working of a patent as a condition of grant, and, of .course, particularly its compulsory working within the Commonwealth. There are many patents that will have a very small sale in Australia, but a very large sale in other parts of the world. Having regard to the distance of Australia from the great centres of the world, it must readily occur to the Minister that to compel a patentee to carry on his works here when he would necessarily find his market abroad, would be placing upon him an intolerable burden - not only a burden, but a disability.
– He could grant a licence to any one else to do the work.
– lam not prepared to say whether that would not infringe his patent. There is another matter. I do not see why an employe in the Patentsoffice should be treated differently from a clerk in a law office. It is well known that a gentleman, who is employed in a law court or law office, is allowed to qualify for the legal profession, and practically to step from his office in the public service into the position of a legal practitioner. That is the law of New South Wales, and, I suppose, of other
States. The Bill prohibits an employe from* becoming a patents agent or attorney for a period of twelve months.
– The reason for that is obvious enough, I think.
.- I suppose the argument would be that he had acquired some knowledge which he might carry outside the office and make use of. “Why should he be placed in a worse position than a law clerk ? That is a point which may very well be considered in Committee.
– But a clerk does not go into a Patents-office to learn to be a patents agent.
– I do not know that any one alleged that he did ; but he might while there learn something, although he would probably get much more knowledge of the working of the law in the office of a patents agent or attorney. I do not know that it is a reasonable thing that the Supreme Court of one State should be practically given jurisdiction over the people and doings of all the other States. It may be said that the Supreme Court decisions are given in different places with reference to Customs matters, but notoriously the decision of the Supreme Court of one State does not bind the people outside that State. In this Bill it is proposed to do an entirely different thing, namely, to constitute one Supreme Court as the guide and ruling power for the whole Commonwealth. That is a very different thing from seeking the intervention of the Supreme Court of each State in respect of matters within the boundaries of that State. In point of fact, it is making the Supreme Court of one State paramount throughout the Commonwealth in connexion with one branch of the law. That is a proposition which, I think, the Senate will hesitate a little about agreeing’ to. I will suggest how it may work. Take the case of the Supreme Court of Victoria dealing with an application from Western Australia. The Bill does not, I believe, give any authority to the Supreme Court in question to summon witnesses from outside its State, and, therefore, how is it going to get Western Australian evidence? Necessarily, unless it is given some authority by the Bill to do what the Supreme Court of no other State can do, it cannot compel the attendance of witnesses from other States to give the evidence which is required. It is really proposed under the Bill to constitute the Supreme Court of Victoria a Federal Court for the whole of the Commonwealth, and yet it is not proposed to give that court the powers necessary to its efficient working as such. There are one or twoother matters to which I shall draw attention, and one is that the Bill does not propose to give any rights in respect of even patents which have been applied for since the establishment of the Commonwealth. It is a fact that in many cases persons, looking to the very early enactment of a Federal patents law, did not patent their inventions, in each State ; they satisfied themselves by taking out letters patent in one or two» States, looking forward to the Federal law giving them the protection which they necessarily required. I think it is a bloton this Bill that it does not give a proper security to those persons who have patented inventions since the establishment of the Commonwealth. I hope that in Committee a provision will be made to that effect. I do not know that it is necessary for me to speak at greater length, because I have indicated sufficiently that I have a. goodly number of amendments which I desire to see placed in the Bill. I hopesincerely that it will not fall to my lot topropose many of them. I trust that honorable senators, with their usual keenness, will see the blemishes which I have had thehonour of pointing out, and that in Committee the crudities and mischances of draftsmanship to which I have referred will be made good by the attention and care which will be exercised in framing a law which, I hope, will be beneficial rather than futile, as I take it the Bill will be in itspresent form.
– I only desire to say a few words on a question of policy which has been already touched upon. That is, whether we ought to adopt theprinciple of centralization proposed in. this Bill ; whether we ought to go in for a more limited measure of centralization’; or whether we ought not to work through the patent-offices now in existencein the various States. I am quite certain that the latter course will be the mosteconomical. I. also agree thoroughly with the point which has already been raised about the Supreme Court. It appears tome to be an unnecessary piece of centralization to require that any appeal from a decision of the Patent Commissioner shall be heard either by the High Court or the*
Supreme Court at the seat of government where the Patent-office is situated. It never occurred to me for a moment that when a patents law was introduced, patentees would be compelled to go to one Supreme Court only, when there are six States Supreme Courts, nil of which are thoroughly competent to deal with such matters. In the State of Tasmania we have a registrar of patents, who is an exceedingly experienced officer in many ways, and who has had to do with the. administration of the patents law ever since it was inaugurated. AYe have also experienced law officers, who are quite competent to deal with the applications for patents made in Tasmania. If we allow an appeal from the Commissioner, or a Deputy Commissioner, or a registrar, why should not that appeal lie to the Supreme Court of the State 1 I can imagine that the proposals of this Bill will expose us to further criticism, inasmuch as it provides that every appeal against the decision of the Patents Commissioner must necessarily be brought, either to the High Court or to the Supreme Court in the State in which the Commonwealth Patents-office is situated. The Commonwealth Parliament may be blamed for not trying in public works matters, and matters like this, to leave the States alone. We are being blamed day after day rather unjustly for our alleged extravagance, but we are being justly blamed for trying to give effect to every single section of the Constitution, which means the creation of a new department, and additional expense in the appointment of highly-paid officers. ‘
– Would not that argument mean that we should let things alone ?
– AVe cannot let things alone altogether, because we must have a uniform patents law. We can issue Federal patents, but that is no reason why we should take a jump to a Federal system such as this, when we can work the system better through the State organizations. Therefore I give notice to the PostmasterGeneral that when the Bill gets into Committee I shall move an amendment on clause 4, the object of which will be to open up the question pf centralization. In regard to the interpretation of the word “ Commissioner “ I shall move for the addition of some such .words as “ and Deputy Commissioners.” If we carry that amendment in the spirit in which I shall propose it, it will be an indication that the Committee aredesirous of decentralizing to some extent. It will be an indication that we must appoint Deputy Commissioners in each State, giving those Commissioners power to adjudicate upon patents, and giving the Supreme Courts of each State that jurisdiction which they ought to have to hear appeals, which may lie either from the Commissioner or the Deputy Commissioners.
– AVe must recognise that this is an important measure, although I am somewhat dubious as to its chances of being placed upon the statute-book this session. It is quite time that we must make some attempt, at any rate, to place upon the statute-book a measure of the kind, seeing that at present inventors are placed at a disadvantage, inasmuch as, if they want to obtain patents for inventions throughout the Commonwealth, they have to take out letters patent in each State. I am somewhat disappointed with, the speech of the Postmaster-General, because it seems to me that he ought to have indicated what was the policy of the Government - for instance, on the subject indicated by Senator Dobson. We have nostatement as to what the Government intend to do.
– The Bill contains their policy - centralization.
– I take it that one may read anything into the Bill. It may contemplate the keeping up of separate offices, or it may not. It certainly provides that all the applications must come beforethe Commissioner, and that he shall decide them. Senator Dobson pointed out that in his opinion it is not necessary that all _ applications should come before the Commissioner. But they would have to go to the headoffice. Each Deputy Commissioner could not decide whether a particular patent conflicted with any. other patent throughout the Commonwealth, unless it was provided that every patent granted by a Deputy Commissioner’ involved the filing of a replica in every other Deputy Commissioner’soffice. There must be centralization to some extent. All we can have in each State is a registrar’s office where an applicant for a patent can put in his application, and where the preliminary work of obtaining a patent can be done. When it comes todeciding the question of the issue of the patent there must be centralization. We cannot have six officers in six States of the Commonwealth deciding upon the issue of patents.
– How do they do in Canada 1
– There would be no end of confusion if patents were issued in each of the six States. A patent might be obtained for the same article on the same day in Queensland and in Western Australia. It would be very invidious to draw distinctions as to which applicant should enjoy the patent.
– :11, could be decided by priority.
– Who is to decide when both patents are taken out at the same time f I should like to clear up a doubt which exists. It is this : Say that an inventor has applied for a patent in one or two States. I take it that when this Bill is passed, the effect of those patents is spread over the whole Commonwealth, and they are not merely good in the States in which they were issued.
– A patent is good for the “State in which it was issued.
– The patentee will have to make another application to extend it to the whole Commonwealth ?
– If he wants to - ves.
– The Bill in clause 59 seems to contemplate that we are going to alter that state of things, and that instead of a patent applying only in one State it will be good all over the Commonwealth.
– But there might be a patent for a particular article already in existence in one State only.
– Clause 59 provides that -
Every patent when sealed shall have effect throughout the Commonwealth unless any State shall be excepted therefrom, in which case it shall not apply to such excepted State.
Therefore, if a patent has been taken out in any State it will have effect throughout the Commonwealth. Because it has to be remembered that the only person who can take out a patent in any State is the actual inventor or his assigns.
– Why should a man have a patent if he has not taken proper legal means to obtain that right1!
– Say that an invention has been made in Western Australia, and that the inventor makes application in “Victoria. The first question he is asked is whether he is the actual inventor. It seems to me that under the Bill a person cannot make application for a patent except in certain States, and the only reason for that is that there may be a patent already existing in those States.
– Look at clause 43. The inventor may find that his article has already been patented in one State, and then he could ‘only get a patent for the rest of the Commonwealth.
– If publication has taken place, how can the1 inventor get a patent 1
– Suppose a man has invented a new washing machine in South Australia. If this Bill passes, he, or some person to whom he assigns his patent, applies for a patent in the five other States.
– He has allowed his right to go b)’ default.
– Not under this Bill, which allows only the inventor to apply. It seems to me that by applying for his patent in South Australia, the inventor should secure the right for the whole of Australia. We do not want patch- work legislation.
– A patent may have in part expired in one State. An inventor may have had his patent for seven years in Western Australia, and be entitled to fourteen years in the rest of the States.
– There is an objection to a part of this Bill which applies to most patents laws, and concerning which I am disposed to move an amendment in Committee. I allude to the clauses regarding the patenting of foreign inventions in Australia. I contend that we should not patent in Australia inventions made by foreigners. We should take advantage of all that the world can give us, and let our manufacturers take advantage of all that the world can give them, so far as inventive genius is concerned.
– Then other countries can do the same to our inventors.
– They can penalize our inventors, but they cannot penalize the Commonwealth.
– Would not the honorable senator allow a man in the Commonwealth to patent an article in Germany or France ?
– He can do it if the French or German people like to let him do it. But if a man invents a reaper and binder in America, I would not allow bini to patent that invention in Australia. If Our manufacturers wish to manufacture that machine, they should be allowed to do so. The inventor gets his recompense in the country in which he makes his invention. One object of this Bill is to encourage invention, and another object is to encourage the manufacture of goods in the Commonwealth. Do we encourage inventions in Australia by patenting inventions made outside Australia? If a man in America invents a new reaper and binder, do we encourage manufacturers in Australia by protecting that invention 1 I fail to see it.
– If a man invents a reaper and binder in Australia, should he not have the right to patent it in America 1
– Let America decide that. W e have no power to decide it. It is an American question. We shall not be alone if we do what I suggest.
– Would the honorable member abandon the International Convention ?
– If this is a Bill to encourage invention in Australia, we need only trouble ourselves about Australian inventors. It does not . encourage Australian inventors to know that American patents can be patented here.
– Nor does it discourage Australians to know that their own patents can be patented elsewhere.
– That appears true on the surface, but it is not true in actual fact. For instance, if a man patented a reaper and binder in America, he could, under international law, patent it throughout the world. Under such’ circumstances there is no need for him to apply his inventive genius to improving the machine, because, without any improvements, he has the return from a world’s monopoly. On the other hand, if other countries did not recognise his inventive genius, but allowed the manufacture of his machine by anybody, the foreign manufacturers would rapidly make improvements which the original inventor could, in his turn, take advantage of and patent in his own country. .In that way an inventor could take advantage of the brains of the world.
– Under the Bill an Australian could improve such a machine and obtain a patent for the improvement.
– And nobody could use that improvement except the man who had obtained the patent.
– Would the idea of Senator Pearce, if carried out, not act as a check on trusts sending their goods to Australia 1
– Certainly. When the Tariff debate was proceeding we were told, for instance, that a ring of American manufacturers, or of Australian importers, had raised the price of reapers and binders, and that they were enabled to do this because it was a patented machine and could not be manufactured in Australia. If my suggestion were carried out, any Australian manufacturer could have produced those machines, and thus prevented the importers, or any other persons, raising the price. This Bill, however, would prevent local manufacturers from competing ; and it was the patent law which protected the American manufacturers and importers of the reapers and binders.
– There will be no difficulty on that score under this Bill, because clause 85 provides for compulsory licences.
- Senator Gould will notice that the arguments as to compulsory licences have to be heard before a court, not when prices are raised, but when the patent is granted. Who can tell when a patent is granted, that the article patented will come into demand, or that there will be such a monopoly as to enable the inventor to raise the price enormously ?
– If a patent be granted the article patented has after a time to be manufactured in the Commonwealth.
– That is so under the Bill, but I am doubtful whether the Senate will pass such a provision.
– Is it not a fact that implement manufacturers have combined already 1
– I believe that is a fact. I have here Page’s Magazine for August, 1902, in which Mr. James Swinburne, President of the Institute of Electrical Engineers, and member of the Institute of Civil Engineers and of the Institute of Mechanical Engineers, has an article on this subject. Mr. Swinburne says : -
Suppose on the other hand each patent could only be taken out in one country, the inventor of the flying machine would soon see enormous advances made in his invention in other countries.
Each improvement would be protected in one other country, but not in his. None of these improvements would be patented in his country, but his patent would ‘cover their use. Ho would thus do an enormous business, as his manufactures would be developed very quickly at little outlay to him, and his income would, no doubt, be made much larger than if he had taken out patents all over the world. Each of the inventors of improvements would reap a large rewaid in the country where he had patented it, as he could use all the improvements patented in other countries. The result would be that the inventors would all be well satisfied ; but, what is more importune, the public in all the countries would be supplied with well-designed and thoroughly-worked-out machines almost ut once, instead of having to wait until the patents ran out before beginning to develop the invention seriously. It must be admitted at once that there are many inventions which deserve international patents and long-time monopolies, while others should be limited in both respects.
Mr. Swinburne then goes on to deal with the origin of international patent monopolies in the following words : -
For instance, we grant patents in England to Dutchmen, but there is no patent law in Holland : so they do not grant an Englishman a patent there. Similarly, we granted patents here to Swiss inventors before there was any patent laws in Switzerland. The question then arises, Why do we grant patents to foreigners? If an American or a Frenchman invents something, why do we not copy it and make it wholesale, and thus get the benefit of the invention V It may be said this would be a sort of theft. Not at all. If a foreign Government chooses to encourage local invention by giving a monopoly to the inventor, that is the business of the foreign country. We need not increase his reward at our special expense.
– Holland is one of the countries which originated the International Convention.
– I am sure that a man in the position of Mr. Swinburne would not make a statement without good authority. He deals also with the origin of patents, and points out: -
The early patents were granted to foreigners who introduced Continental industries. But introducing a foreign industry which would otherwise remain unknown to us by starting a manufacture which employs English labour is one thing ; inventing something’ abroad, which, with modern communications, we would know about at once, and then sending the article over at an enhanced price, is another. In one case an industry is started - say, in weaving*- which would not otherwise have begun, and instead of buying our cloth at a high price we make it ourselves. In the modern case we are prevented from making it ourselves, and have to buy it from abroad at a high price. The modern patent granted to a foreigner has thus exactly the opposite effect of the monopoly originally intended. Some countries insist upon the manufacture being carried out in the country within a fixed time, and some do not allow importation of a patented article. This is sound from the nation’s own point of view, but it would be better still not to grant the foreigner any patent at all.
Mr. Swinburne then speaks of the effect of this law in the following terms : -
If we consider such a country as Holland, there is no reason for a patent law. The population of Holland is only a small fraction of that of the civilized world. The Dutch get all the advantages of all the inventions of the rest of the world, without any patent law of any kind of their own. If they grant patents to the Dutch only, the3’ increase the encouragement to Dutch inventors. At first sight it might be said that as the Dutch have already all the encouragement due to all the foreign patent-offices, the addition of Dutch patents would not make much difference ; it would only add a small percentage of encouragement. But this is hardly the cose.
I consider these to be weighty words, although they perhaps present a somewhat novel view of the parent law. It is a view, however, which to me appears logical, and which cannot be controverted. If, as I said before, this is a Bill for the encouragement of Australian invention, we are not, and should not be, concerned about the inventors of America, or any other country. Some of the foreign inventors have availed themselves of the patent law in order to rob Australians of their brains in the inventive field.
– Why does the honorable senator say “ rob,” considering the views he has enunciated ?
– I am using the term which is ordinarily applied in such cases, although I do not consider such action as robbery. I consider that a man’s inventive genius is something for which he is not altogether responsible, but something which he has inherited from society. Mr. Swinburne says further -
But while we put the foreigner on terms of equality in our patent practice, we do not receive fair treatment abroad. America, for instance, will not grant a foreigner a patent if he has taken out a foreign patent befoore.
I shall ask the Committee to say, that if a foreigner has taken a patent out in a foreign country, he shall not, for the same invention, have granted to him an Australian patent.
– A foreigner cannot get a patent in Australia if his invention has been published here.
– I am aware of that ; but we know that inventors can take out patents in different countries simultaneously, and my point is, that the holder of a patent in a foreign country should not be given a monopoly in our market.
– Why not, if he is registered?
– This Bill ought not to give monopolies, but ought to encourage Australian inventive genius.
– But that is a part of the Bill to which the honorable senator objects.
– No ; what I object to is the encouragement by Australia of foreign genius in foreign countries.
– That is provided against in clause 83, which provides that a patented article must, within five years, be manufactured in the Commonwealth.
– Does Senator Pearce believe in reciprocity in patents law?
– No ; I see absolutely no advantage in such reciprocity.
– Does reciprocity not make for progress ?
– I think it militates against progress. The fact of a man having a monopoly throughout the world for fourteen years for some machine, militates against improvement, as is shown in the article by Mr. Swinburne.
– If Senator Pearce wrote a novel, would he not like to have it copyrighted throughout the world.
– Certainly, but the point is not what I like, but what the people may like. We have not to consider individual inventors, but we have to consider the people.
– Col. Cameron. - Would Senator Pearce’s proposal encourage men to take out patents under any circumstances?
– I think so, because inventors would be given the opportunity of profiting by improvements made by others in their machines.
.- To be logical, Senator Pearce would have to exclude everything of the same kind made elsewhere, or otherwise the local inventor might be undersold.
– I contend that men who sell a machine identical with a patented machine ought to pay a royalty, even if the machine be made outside the Commonwealth. The following is a further extract from the article by Mr. Swinburne -
The foreigner naturally takes out his pa his own country first. The American, thus, has an advantage here. In addition, they wilfully misread Englishlaw. A patent is not granted in England until the sealing, but the American Patents-office interprets the law as if the patent were granted when the provisional application is filed. It thus deprives Englishmen of patents unfairly.
It seems to me that we are acting on the assumption that we ought to go out of our way to encourage inventive genius in the world generally. I am not prepared to do that, but I am prepared to assist in passing a measure to encourage Australian inventive genius.
– Then Senator Pearce would not take any invention from a foreigner ?
– I would give a foreigner no monopoly in our market, but would allow the invention to be manufactured locally.
– Does Senator Pearce include Great Britain ?
– In this connexion I put Great Britain in the same category as a foreign nation. I say that if a machine is patented in Great Britain, or any where else outside of the Commonwealth, it is better that we should prevent that machine from being patented in the Commonwealth. The inventor has already secured his encouragement in the country in which he made his invention. We are under no obligation, and it is no part of our duty, to encourage him. But it is a part of our duty to encourage Australian manufactures, and we should not allow the manufacture of these articles within the Commonwealth to be prevented.
– That would be to our disadvantage.
– I do not think it would. I remind honorable senators again of the instance of reapers and binders to which I have referred. Some honorable senators have said that the price of those machines was raised to a prohibitive figure, and our manufacturers could not manufacture them, no matter how high the duty upon them was made.
– That was because the machines were registered as patented here.
– The honorable senator would prevent that registration.
– I would prevent that registration, and if that had been done our manufacturers could have manufactured those reapers and binders, and could thus have prevented the price being raised.
– No ; they would enter into a trust, and the price would be made higher than ever.
– The best policy is to strike out the clause, which gives encouragement to the foreign inventor. I should leave foreign countries to encourage their own inventors, and keep our encouragement for our inventors and our manufacturers.
– The honorable senator would take away the encouragement offered to our own inventors giving their inventions to the world.
– Certainly not. Our inventor would have an absolute monopoly of the Australian market.
– Suppose another country manufactured his invention and imported it to this country ?
– Every patented machine so manufactured and imported into this country would have to pay a royalty.
– The inventor would have our small market as against the world’s market.
– I think the position is quite the other way. That is clear from the article to which I have referred, which shows that Holland gets the benefit of every invention discovered in every part of the world, by the very fact that she does not recognise inventions, and has no patents law.
– What benefit is that to her ?
– It is a great benefit to a nation to get the most up-to-date machines at the lowest possible price. Surely the honorable senator is not one of those who oppose the introduction of laboursaving machinery and the latest inventions in machinery? They are the best tools with which to fight the industrial war. Holland, by the very fact that she does not recognise foreign inventions, can, through her manufacturers, secure the manufacture of any machine invented in any part of the world. Is that not an advantage to Holland ? I a’dmit at once that it may not be an advantage to the man who manufactures the machine, but I say that it is of immense advantage to Holland.
– Is not the main object of this Bill to encourage inventors ?
– The object of the BDI is to encourage Australian inventors, and I am prepared to do that.
– A man would not be an Australian inventor who merely copied the invention of another mail.
– I should not recognise a copy of an invention patented anywhere else. Then I think we should make it clear in this Bill that the examiners and all the officials in the Patents-office will be there for the convenience of inventors and the public. ‘ We must not make the Bill play into the hands of patent attorneys. If we do so, we shall have patent attorneys making patents as dear and as difficult to obtain as they are under the English law. What is the position at present in some of the States ? A man invents a machine, and when he goes to the Patentsoffice with his invention, he is at once met with the statement by an official - “ I cannot give you any information. So-and-so down the street is a patent attorney ; go and see him. If you do not know what to do, I am not here to tell you what to do.”
– We should require a big staff.
– We should not require a big staff. The existing staff of the Patent-offices of the States could give all the information necessary, because they have at the present time to deal with all the necessary procedure. It would be just as easy for them to indicate to an applicant for a patent what he should do as for a patent attorney to do so.
– Would the honorable senator expect the officials to draw up a specification foi” an applicant? Everything depends upon that.
– They could indicate to the applicant the lines upon which he should act. He would draw up his own specification and take the risk. If he wishes to consult a patent attorney, let him do so.
– He would be almost sure to consult an’ attorney in getting a specification drawn up.
– That would not be necessary in every case. There are some simple inventions, of which any man could write out a description and draw up a plan. Take, for instance, the experience of the Lands Titles-office. “ After all, it is not a very difficult thing to make a transfer of land. Still, people very seldom do it, and when they go to the Lands Titles-office they are refused information. Although there may be officers there’ who could give the necessary information in ten minutes, the applicant must employ a solicitor. That is, of course, very nice for the solicitor. In this Bill we should make it clear that the examiners and other officers of the Patentsoffice will be there for the convenience of the public and the inventor, and will be expected to give every assistance. Senator Drake pointed out that, under the Bill, the examiners are only to report whether a complete specification is in accordance with the provisional specification.
– And whether the article has been previously patented.
– That is so. A point has been raised by some honorable senators by way of interjection that the examiner should also decide whether the patent is novel, and thereby prevent a man going to expense only to find later on that his application is ruled out as not being novel. , Surely the examiner, with the official records at his command, should decide that . point and save the inventor expense which he otherwise might be put to. Clause S3 is, in my opinion, in its wrong place in this Bill. It should be in the Tariff Act. Under the Bill, in the case of an application for the registration of a foreign patent, it is required that the patented article shall be made in the Commonwealth.
– If it is patented here.
– I believe that if we desire to secure that, the way to do it is the way I have indicated, and that is to allow any manufacturer to make it here instead of saying, as is proposed under this Bill, that we shall give the inventor a monopoly, provided that after four years he manufactures his machine in the Commonwealth. It is proposed that we should give him four years within which he may manufacture his machine anywhere if he afterwards manufactures it in the. Commonwealth, and then we give him a monopoly in the Commonwealth. This is not a proposal that after four years the whole of the manufacturers of the Commonwealth may then manufacture the patented article. They may manufacture it upon such terms as may be laid down in the licence issued by the Patents Court or by the Supreme Court of a State. I suppose the Patents Court will fix the price charged for the licence according to the value of the monopoly. The price under these circumstances may be such as to rob the local manufacturer of all profit, or in any case to place him at a disadvantage in competing in the local market with the patentee, who has a monopoly owing to his patent. I think, if the Senate desire to achieve what is proposed by clause 83, it can best be done by preventing the registration in Australia of foreign patents. There is another matter connected with monopolies in connexion with inventions which is dealt with in sub-clause (2) of clause 90. The inventions here referred to are an important class, but it seems to me that the clause is limited practically to instruments or munitions of war. I desire to refer honorable senators to another class of invention, in respect of which it is of equal importance’ that the Crown should have pre-emptive rights. For instance, in connexion, with the Department of the PostmasterGeneral, honorable senators will admit the importance of the invention of wireless telegraphy. AVe provide in this Bill that if a man invents a bomb for the destruction of life, the Crown shall have certain rights as regards the manufacture of that engine of destruction, but, so far as I can see, the Crown will have no pre-emptive rights under this clause 90 in respect of a scientific invention which may revolutionize one branch of the Postmaster-General’s Department. Wireless telegraphy can be made a private monopoly in the Commonwealth. I ask honorable senators, is that desirable 1 Is it desirable that we should give any inventor the power to make the apparatus for wireless telegraphy, as we know it at present, or any improvement upon it, a private monopoly, to be disposed of on any terms he may choose to demand 1
– Under the Postal Act that will be a monopoly of the Crown.
– That point will have to be settled.
– It has been settled. It is claimed by the Postmaster-General.
– We have a statutory monopoly.
– I know that the Postmaster-General claims it, but I am not sure that the claim would be upheld by the law courts, especially if this Bill passes. If this measure is passed the inventor of wireless telegraphy, or of any improvement upon the Marconi system, will have a right to a patent even against the Crown.
– There is no use in his patenting the invention if he cannot use it.
– On this very question there is an article appearing in Page’s Magazine for August 1902. Sir William’ Preece, in an article on wireless telegraphy, at page 136 of the magazine, sa3’s -
I rend in a technical paper that - “ It is stated semi-officially that the Imperial authorities at Berlin ure considering a proposal for inviting Great Britain, Prance, and the United States to send representatives to a congress to be held with the object of arriving at an international agreement which will prevent any monopoly in wireless telegraphy on the high seas.”
That seems to contemplate that a monopoly is possible.
The matter is receiving attention at the hands of the United States Administration at Washington, and the chief of the Army Telegraphic Bureau has been appointed to investigate the proposal and to report on its advisability. The incentive for Germany’s action in this matter is said to be found in the fact that when the ; Deutschland with Prince Henry on board, was on her way out from New York, she sent a message to the Nantucket lightship (Marconi station) from the Prince for the German Emperor. The Marconi operators, however, refused to accept the message, because it was transmitted to them by a Slaby-Arco apparatus.
The whole tenor of that article seems to me to indicate that these nations and the Department at Washington admit the possibility of a monopoly. Though Senator Drake says that the inventors of wireless telegraphy could not use it within the Commonwealth, let me remind honorable senators that we have a dependency which is not within the Commonwealth, and where this wireless telegraphy would probably be used instead of a cable. It is possible also that we may have other dependencies later on in the Pacific.
– The territory to which the honorable senator refers is Commonwealth territory.
– The ocean is not Commonwealth territory.
– The whole of the sea between Queensland and British New Guinea is recognised as Commonwealth territory.
– If it is necessary that a Commonwealth Minister1, on behalf of the Crown, should have a pre-emptive right to step in and take over the manufacture of some invention for the destruction of life, a similar right should be reserved to the Crown in every other Department. Upon giving proper compensation the Crown should have the right to step in and acquire any invention which may be of use to the Commonwealth. I think that the fees ought to be re-arranged. The difficult time for an inventor is when he is first applying for his patent. It is generally a poor man who is struggling to obtain a patent. We might very well reduce the initial fees, and if, in the opinion of the Government, it is necessary that the total sum should be kept as it is, the second payment might be increased.
– They would patent all kinds of rubbish then.
– If the Commissioner thinks it is rubbish he can reject the application. A man will not pay fees to the amount of £8, and give £8 or £9 to an attorney for advice merely to patent rubbish. If the initial fee is made less than £8, and a man patents rubbish, so much the abetter for the revenue.
– There are hundreds of patents which have never been used.
– Only patents that bring in some revenue tq the inventors are renewed, and they can afford to pay the money. We shall check a man from making a start if we charge £5 for the preparation of a patent for sealing, £2 on acceptance of complete specification, and £1 on filing the application for the patent. If a man thinks it is worth while to renew his patent, it is evident he is getting some valuable consideration.
– I am very glad indeed that the Government have taken this matter in hand. I know that for many years it has been regarded by persons of an inventive turn of mind as a grievous burden that inventions should have to be patented in every State. If a man wishes to obtain letters patent he has to take good care that no opportunity is given to intercept his invention in any other State of the Commonwealth. Take the case of a man who desires to patent something in ViC.toria. Unless he takes steps simultaneously to obtain letters patent in the other States, he may be anticipated in any one State, and find that a very valuable invention has been taken advantage of by other persons, who really had no claim or right to it.
– It is only necessary to register in the first instance.
– I know that ; but the manhas to take steps in order to secure his patent in all the States.
– Registration does that.
.- He has fees to pay on that ; he has the specification to lodge, and a number of matters to attend to, which all tend to increase the expenditure. I notice in a memorandum relating to a Conference of Ministers which took place some time ago the fees in the various States which a man has to pay in order to protect himself within the Commonwealth alone. It costs £96 to patent an invention in a country with a population of 4,000,000 souls, whereas in the United States, with a population of 70,000,000 souls - one of the most progressive people on the face of the earth - the fee is only 35 dollars. There can be no two questions as to the desirability of giving a man an opportunity of protecting his invention throughout the Commonwealth. We should facilitate as much as possible the inventive genius of our own people. While an invention is of value to the individual it is also of value to the State as a whole, and it is our duty to reduce the fees as much as possible, and at the same time to make the facilities for patenting inventions as great as possible. I take exception to the proposal of the Government to centralize the whole of this work. It would be an act of injustice if persons, no matter how remote they were from Melbourne, had to be represented in that city either personally or by agent in order to look after their patenting work. An opportunity should be given to a man to go to an office in his State to submit his patent application and to get the fullest information that can be given by any official as to the course of action which should be taken. Of course, the utmost publicity should be given in in order to allow persons if an attempt is being made to patent a thing which belongs to somebody else to raise an objection, and also for the guidance of people who may use their inventive genius to develop or complete some particular instrument which is capable of manufacture.
– That seems to be rather in favour of centralization.
– I do not think it is. The whole policy of this Government has been a policy of centralization, and therefore we ought not to be surprised that it should be embodied in this Bill.
– The whole policy of Federation is centralization.
– No ; a policy was advocated some time ago called unificacation, which, if adopted, would have meant centralization. I find that to a certain extent this question is dealt with in the report of the Inter-State Patents Conference which was held in May 1901.
It appears to the Conference that it will be necessary for the States to retain administrators of the Patents &c. Acts to deal with existing State grants, payment of fees, &c. Also that provision by the Commonwealth should be made in the capital of each State, with the exception of such State in which the Federal capital or temporary seat of Government is situated, for the establishment of a central receiving, recording, and forwarding office, preferably located at thepublic library of each State. Further, the Conference thinks it desirable that branch receiving and forwarding offices should be established in such towns throughout the Commonwealth having post and money order offices controlled by responsible postmasters, who shall receive applications, record on them the exact time and day of receipt, issue receipt for fees, &c., and forward all moneys and documents to the Federal office.
– Like a conduit-pipe.
.- The report goes on to say -
The postmasters should be supplied with sets of forms and copies of the Acts, to be. supplied to the public free on application. On economic and other grounds the Conference considers that it may be found advantageous to combine by arrangement with the State authorities the duties of State Registrar and Commonwealth Branch Officer in one person. The benefit of the amalgamation will be seen when it is considered that the importance of the State Registrar’s position will gradually decrease, while the importance of the Commonwealth Branch Officer will increase.
The Minister interjects that they would only form a sort of conduit-pipe for the purpose of bringing the specification to the head office. We recognise that there must be one central bureau, where the final determination will be arrived at, but we do not wish to put inventors in the position of having to apply to that office when we have scattered throughout the Commonwealth large cities in which they could be given an opportunity of submitting their specifications.
– Each application must come before the Commissioner.
.- It will have to go before the examiners, who will have to report to the Commissioner. Let us not do anything which will have a tendency to deter persons from submitting their inventions. Otherwise a man in Perth may say - “ I do not know whether it is worth my while to go to- Melbourne. It would put me to a great deal of expense and inconvenience, and I might be unsuccessful with my application in the long run.” By all means let us give the man the fullest opportunity to submit his application. One honorable senator seemed to take exception to the recognition of patent agents in the-Bill. While I agree with him that every official in the Department should be prepared to give general information and assistance to persons who are seeking to patent an invention, we could not expect those officers to prepare specifications. There is no more important matter in connexion with an application for a patent than a correct preparation of the specification. While a man may invent or think out a particular machine or improvement that is patentable, in nine cases out of ten, if he does not get professional assistance, he will make a blunder, or some oversight will occur in connexion with the specification. A man used to the business should be consulted, because he knows what has to be specified. The inventor communicates to the patent agent his idea. The patent agent has then to put the idea in apt language, and in such form that when it is submitted the examiner will readily grasp what the person has invented, what he claims for it, and whether it is novel or not. It will have had the advantage of going through an agent who will probably know from his experience whether it is a novelty or not, and if it is not a novelty he will stop the application at that stage, or suggest such alterations and amendments as may make it an improvement of something which has been patented, or for which a patent has been applied. Again, the patent agent understands the work of the. office. He takes an application to the office and gets it put through much more readily than an inventor can do: It is wise, therefore, to make provision for patent agents. It is also wise to have registered agents, so that an inventor may have some certainty that the man he is going to employ has some skill, knowledge, and aptitude for the work to be done. Instead of deprecating the appointment of these men, we ought to feel pleased that the Bill recognises their usefulness. Some honorable senators may ask - ‘.’ Why should not any man have the right to enter this profession if he sees fit?” He has that right ; but he should give evidence that he understands the work to be done so that he shall not disappoint any applicant or improperly deal with his specification. Now I come to another question, which has been raised by Senator Pearce. It has regard to giving patents to foreign inventors. The principle laid down for many years past has been that the wider the door is opened to inventors the better it is, not only for them, but for the community at large. Senator Pearce contends that we are only concerned with the encouragement of Australian invention. My reply to him is that while we are concerned with the encouragement of Australian invention, we also wish to leave the door open for Australian inventors to better themselves. If a man can invent some improvement in the arts or sciences within the Commonwealth, what a grand thing it is for him to have an opportunity of taking advantage of the patents laws throughout the civilized world. While we have to. give the same right to individuals outside this country, the advantage is all in our favour. We will say that an Australian inventor brings out a patent. Instead of being limited to a market of 4,000,000 people, he has also a market of 84,000,000 people, provided that Australia gives to a man who invents an article in America the right to take advantage of our market. The balance of advantage is entirely in favour of our own people.
– It is a reciprocal advantage.
– Certainly it is. If we do not grant patents to inventors from foreign nations who apply to us, foreign nations will treat us in the same way. Our inventors will be shut up within their market of 4,000,000 people, and will be deprived of the advantage of the patents laws of other parts of the world. What has given rise to the inventive power of the United States, but the fact that the increase of the population in that country has given to inventors a growing market for their patents.
– Within their own country.
– Of course, within their own country. I should like to see the population of Australia increased : but what inducement is there for inventors to patent articles, if we say- to them, “ While you may invent something which can be patented in your own country, you may be quite certain that you will not be allowed to reap benefits from your invention in any other part of the world.” The thing will not bear examination when it is carefully looked into from a reasonable point of view. In order to see if anything could be done to improve the position of patentees, an International Convention was held on the 20th March, 1883. Belgium, Prussia, Guatemala, Holland, Italy, Portugal, San Salvador, Servia, and Switzerland then constituted a union for the protection of industrial property. Various other Governments »have since become parties to the union, including Great Britain, Tunis, the Dominican Republic, Sweden, Norway, Queensland, the United States, New Zealand, Denmark and Japan. San Salvador and Guatemala have left the union. The United States, one of the most progressive countries in the world, found it to be to the advantage of her own inventors to join the union, in order to protect the rights of her patentees in other parts of the world. It appears that Queensland is the only Australian State that joined the union. I was under the impression that Victoria had also done so, but such would not appear to.be the case, unless she has joined quite recently. The Government have wisely introduced a provision in this Bill to enable the Commonwealth to enter the union. It is provided for by clause 117; and clause 118 provides in a similar way that the Commonwealth may come in within the union in respect to any Convention that may hereafter take place, When a copy of the Bill came into my hands this was one of the first things I searched for. I wished to see whether the Government had taken advantage of the opportunity to e”nter into the Convention, and was very pleased to notice that they had done so. It was the right thing to do. Senator Pearce pointed out. the advantages that might occur from the adoption of his suggestion in the case of reapers and binders. Assuming his statements to be correct - that in consequence of an American firm having acquired patent rights in Australia they were enabled to victimize Australian farmers by charging exorbitant rates for reapers and binders - while I do not agree with that portion of the Bill which requires an inventor to manufacture in these States after a limited period of years, or to lose the benefit of his patent, still I think that clause S5, providing for compulsory licences, would meet the difficulty the honorable senator foresaw. If clause 85 had been in operation in the past, it would have been possible for any individual to make an application to the court and to get a compulsory licence granted to some person upon terms that would be fair and equitable to the inventor. We must recognise that the inventor has some rights. A royalty would have had to be paid to him, probably in proportion to the value of the article and the cost of its manufacture.
– Does the, honorable and learned senator notice the two conditions under which that application has to be made? Under sub-clause (6) there are only two conditions.
– But they are sufficient.
– I do not think they are.
.- The subclause referred to provides that -
The reasonable requirements of the public shall not be deemed to have been satisfied if, by reason of the default of the patentee to work his patent, or to manufacture the patented article in the Commonwealth to an adequate extent, or to grant licences on reasonable terms - (a) any existing industry or the establishment of any new industry is unfairly prejudiced, or (6) the demand for the patented article is not reasonably met.
Of course those words would have to be altered if we eliminated the previous clause. I contend that the demand for a patented article is not reasonably met if the manufacturer charges an exorbitant price for it.
– How could the honorable and learned senator prove the price of manufacture in a foreign country?
.- It would be possible to obtain permission to appoint a commission to get evidence on the subject.
– No person in South Australia ever applied for a compulsory licence, although our Act provided for it.
– I am not binding myself to the wording of clause 85, but power can be taken which would protect the purchaser against exorbitant prices charged by inventors or manufacturers. This point also leads me to make a few observations on clause 83. Some honorable senators may say that .it is a proper thing to give the Commonwealth the benefit of manufactures by insisting that patented articles shall be manufactured here within a certain time, and that they shall not be imported after the expiration of four years.
– Then there will be a monopoly established here.
– As the honorable senator interjects, the effect may be to establish a monopoly in Australia. There may be a patented article, the consumption of which is not sufficient to justify an individual manufacturing it within the Commonwealth. This Bill says that, although a manufacturer would not be justified in mating that article in Australia, the importation of it shall not be permitted after a certain period. The Government are attempting, under a restrictive policy, to insist that a man shall manufacture within the Commonwealth, and that if an article is not sold in sufficient quantities to justify him in manufacturing here, people shall not be allowed to use the article.
– The restricted market would raise the price 50 per cent.
– Yes. A patented article may be a small one in itself, but it may be of importance to some of our citizens. Owing to the comparatively small population of Australia, and the limited demand, it might not pay a man to manufacture it within the Commonwealth. And yet this Bill says that nobody shall be allowed to use it. Is not that absurd1? I have every sympathy with the desire to see manufactures increase in Australia. In fact, I wish to see manufactured in Australia every article that can possibly be made here. But at the same time I have no sympathy with legislation which would preclude us from having the advantage of any article because it would not pay to manufacture it within the Commonwealth. I trust that when we come to deal with this part of the Bill in Committee we shall make a change in that direction. With regard ‘to the question of the report of the examiner of patents, I notice that it is provided in clauses 35, 36, and 37, first of all, that the Commissioner shall ascertain “ whether the title has been stated as prescribed”; secondly, whether the invention “has been described as’ prescribed”; and, thirdly, whether “ the application and specification I are as prescribed.” Clause 36 requires that the examiner shall ascertain -
Whether the invention fully described in the complete specification is substantially the same as. the invention the nature of which is described in the provisional specification.
Then clause 37 provides that the examiner shall also ascertain whether, to the best of his knowledge -
The invention is already patented in the Commonwealth or in any State, or is already the subject of any prior application for a patent in the Commonwealth or in any State.
He is not called upon to report as to whether the invention is novel in any particularState, or whether it has been used previously in that State or not. It is left for some private individual to raise that question, and to cause an inquiry to be made into it. Clause 52 provides that any person may oppose the grant of a patent, and, amongst other reasons, may urge that the -
Invention is not novel, or has been already in: possession of the public with the consent or allowance of the inventor ;
That the invention has been described in a book or other printed publication published in the> Commonwealth before the date of the application, or is otherwise in the possession of the public.
These two matters should really be reported upon by the examiner.
– Does the honorable and learned senator think so? Would the examiner have the data to decide with certainty on those points ?
.- He might have the data at his command, but in any case he could obtain .it. I do not say that a patent should be indefeasible. The examiner should make the fullest possible inquiry before the patent is granted. As one having some knowledge of this matter, I may say that it is a recognised fact, that if a patent be granted in the United States or Germany, or, I believe in a lesser degree in Prance, the applicant may fairly rely that all reasonable precautions have been taken to see that the patent is one that will standi in the courts if contested. The Governments of those countries take no responsibility, but observe the greatest care. I know that in Great Britain the policy acted on has been to say, “ Well, we will give you a patent for what it is worth ; we do not promise to make any great inquiry, although we shall make some inquiry.” That has been the old conservative policy adopted in Great Britain, and if the patent be challenged next day the applicant, has to go to a law court, and fight an expensive suit with all the attendant serious risks, which might have been avoided by a little care on the part of the examiners in the first instance. I now propose to quote from an article in Engineering of 20th” March, 1901, under the heading of “ The Working of Patents Acts.” lt deals with the report of a committee appointed by the Board of Trade to inquire into the working of the Patents Act, and the names of the committee comprise those of a large number of very eminent men. The quotation is as follows : -
The first question dealt with is that ot preliminary examination as to novelty of inventions in respect of which patents are applied for. By request of the committee, the officers of the Patent-office made an examination in respect of all the complete specifications accepted during the first week in June in each of the three years -1897, 1808, and 1899, and carried these examinations back to the year 1877 inclusive, with the result that of the total number of specifications examined, it was found that 57 ‘59 per cent, were not anticipated ; 6”69 per cent, had been wholly covered by previous patents; 35 ‘31 per cent, had been partially anticipated in the same way ; 0”29 were obviously old; and 0 1 2 per cent, disclosed no manner of manufacture. Or, stated in other terms, the examination showed that upwards of 42 per cent, of the specifications accepted appeared to have been anticipated, either in whole or in part. In making the inquiry, “obviously old “was construed as meaning “known in the industry, but not previously protected.”
That shows that 42 per cent, of the specifications accepted appeared to have been anticipated either in whole or in part. I want honorable senators to realize the fact that 42 per cent, of these patents were open to challenge in courts of law - that a patent which had been given to an individual might, if he wished to assign it, prove not of value, but the cause of a law suit very profitable to the lawyers. As a professional man I ought not, perhaps, to object to law suits, but in the interests of the community it is a vital mistake to issue patent’s which, if purchased, may be the means of entrapping people into long, expensive and, perhaps, ruinous law suits. Therefore, I urge on the Government that the fullest possible care should be taken before a patent is granted, and every reasonable inquiry made - because the Government cannot go beyond a reasonable inquiry - in order to assure that the patent has -not been anticipated, but is really novel and valuable. 6 g
– Applicants might be misled by that.
– An applicant, submits what he believes to be a patentable novelty, and he ought not to be misled in. any way by the Patents-office. I know that a common idea of the ordinary man outside is that if he obtains a patent hehas a valuable right with which no one can interfere. We know, however, that a patent is not indefeasible ; and let me point out that even a defect in description may lead to trouble, as witness the cyanide patent, which was a fruitful source of litigation in nearly every” part of the world.
– Would Senator Gould have an examiner decide on the question of novelty 1
– I would havethe examiner say to the individual - “ Your specification in this case is not sufficiently definite, and I should advise you to makeit more so “ ; and then if the individual said he was satisfied the examiner’s duty would be done. The cyanide patent was one in which the invention was not sufficiently defined, more being claimed for itthan -the applicants were entitled to undertheir specification. I only mention thiscase as an instance of what may occur. I recognise that it is impossible to be certain in every instance, and the officials of thePatentsoffice can only be asked to exerciseall reasonable care. But, if it is necessary to work the officers a little harder, and pay them a little more to have this work, thoroughly done, the money will be well, spent. If the Government did not derive a. single sixpence of revenue from patents,, but granted them free, it would be a benefit to the community to bear the* expense of having all reasonable and, proper care observed. Where fees are demanded, an applicant is naturally led to believe that some special care is being taken with regard to his application. It may be said that a man should know the law, and be acquainted with all its danger* and defects - with all the pitfalls and traps in front of him - but we cannot expect laymen to thoroughly realize their position in this connexion. Therefore, it isthe duty of the Government, if they think it worth while to give a monopoly in regard to a particular invention, to give a. monopoly on which the applicant may reasonably rely as a valuable one, and not one which, as I have already said,. may prove a source of clanger or troublesome and costly litigation. One honorable senator has taken exception to the Bill as being crude in form. I have not had an opportunity of examining the measure very carefully, but I understand that to a very great extent, if not wholly, it is based on the English Patents law. If that be so, I hope that, as far as possible, the wording of the English law has been adopted, because we shall then have the benefit of the legal decisions given in the old country to guide the people as to the meaning of the different expressions used. The principal Act in Great Britain has been in operation for something like twenty years, and there has been abundant opportunity of settling and determining its form and meaning. One or two amending Acts have been passed, and I presume that the Governwent have taken advantage of those Acts in order to bring- the Bill into line with English legislation. If we had referred to Canadian or American legislation, we might have received some valuable assistance ; but I welcome a Bill which embraces the whole of the Commonwealth, and I am prepared to accept a law based on- that of Great Britain, even though we should find it necessary to amend it later on, when its defects become known to us. I am so satisfied that it is absolutely necessary to have one law for the whole of the Commonwealth that, if the Postmaster-General had simply put the Imperial Act on the table, I should have been prepared to accept it in order to secure what I believe will be in the interests of inventors and of benefit to the whole community.
– Notwithstanding the adverse criticism to which we have listened, I must take the opportunity of congratulating the Government on the introduction of this Bill. It is a measure which is in every way creditable to the Government, and which, while not of an extravagant nature, is sufficiently liberal to justify its acceptance by the Senate. No doubt some slight alterations will be necessary in Committee, but on the whole the measure is one to which we can give our approval. On a subject of this kind it is a very simple matter to advance arguments from various stand-points ; but in framing a measure of such importance to the industries of the country, it is safer to go on lines which have been approved elsewhere rather than rush into the realization of novel ideas.
The scale of fees is, I think, very moderate, and should give the poor inventor a reasonable amount? of encouragement. The present Patents laws in Australia are calculated to discourage, rather than to encourage, an inventor, unless he be a man of considerable means, and thus able to pay for the protection of his ideas in each State. All that, however, will be changed under this Bill, which is merely one of the benefits we expected from Federation. In introducing the Bill so early, the Government have done their duty to a section of the community, which, for a long time, ‘has required legislation of the kind. Senator Gould urged that, while every effort should be made to safeguard the rights of inventors, we should see that monopolies are not granted to companies or corporations who are powerful enough to secure privileges to which they have very little claim, or, at any rate, little right. -The patent for the cyanide process of extracting gold was a sore trouble to many mining companies in Western Australia, until the Government of that State bought out the corporation which laid claim to exclusive property in the process. It was the opinion of most people at the time that the Cyanide Company were guilty of nothing short of blackmail, when they obtained a good few thousand pounds from the Western Australian Government ; and cases of that kind must -be guarded against in the future. At the same time, it would not be wise on the part of the Government to take the responsibility of saying that any patent is indefeasible. To assume such a responsibility would, -I am afraid, lead the Government into much trouble and litigation.
– The Government cannot be made responsible for the issue of patents.
– I hope that the Government cannot be made responsible. Advice within reasonable bounds might be extended to a patentee, but we should not take any more responsibility upon ourselves than that. Some reference has been made to the Patents laws of the United States, and perhaps there is no country in the world which is more indebted for its prosperity to its Patents laws than is that country. Honorable senators with whom I differ upon fiscalism declare that a great measure of the prosperity of America is owing to her Patents laws. If that is so, and I believe there is some truth in the contention, it would be well for us, as far as possible, to copy them. I. am pleased to see that the fees provided for are moderate, and that, to a certain extent, it is proposed that we shall follow the American seale. Still, I think the fees might be reduced to some extent with advantage. We must remember that we take a great deal of responsibility under this Bill, and a great deal of expense may- be involved in the working of the Patents Department. Some revenue is, therefore, required from the Department, but it will be admitted that it would not be wise, in the interests of the country, to try to make any profit out of patents. That is an aspect of the matter to which I hope attention will be directed in Committee. A reduction of the fees will be in the interests not only of inventors, but of the Commonwealth also. It is not always the country which insists upon the highest patent fees that secures the greatest revenue from that source, and in reducing the fees here proposed I think we shall be going upon safe lines.
– We might reduce the first fee of £o to £3*.
– I think that would be a very wise thing to do. I cannot resist the temptation to say a few words upon the rather novel idea advanced by Senator Pearce, lt is a whirligig kind of idea, which, I think, would never be accepted by this or any other Legislature that had any inclination to be fair to the inventors of other countries, as well as to its own inventors. I do not think that the proposal would be of advantage even to our own inventors. We know that machinery can be made at a ‘ cheaper rate in other countries than in Australia, and if the honorable senator’s proposal were adopted, there would be nothing to prevent machinery invented by Australian inventors being manufactured in Germany by cheap labour at a much lower price than that at which it could be manufactured in Australia, and it could then be imported to Australia, not to the advantage of the Australian inventor, but to the advantage of the foreign manufacturer. We cannot expect reciprocity with other countries if we do not extend to them advantages similar to those which we claim for ourselves. The proposal of the honorable senator is, in ray opinion, against the whole spirit of the legislation we are endeavouring to pass on this occasion. I 6 g 2 hope that the measure will be amended by a reduction of the fees proposed, but I think no other amendment is required, with the exception, perhaps, of the omission of clause 102, which gives a certain advantage to the lawyers. I do not see why it should be assumed that a lawyer understands an invention better than any other person. He may know how to draw up a specification, but he will have no better expert knowledge of inventions than any other individual, and I should be opposed to giving him any advantage over any patent attorney. I think a man should show his fitness for the work before being accepted as a patent attorney. With these slight amendments I hope to see the Bill passed.
– The importance of this subject has been worthier of a larger audience than has been present in the chamber at any time during the sitting. Of the many Bills which have been brought before the Senate, I do not think it is possible to mention one which exceeds this Bill in importance. It has been said by one or two speakers that the growth of the United States has been largely due to its Patents law, and I believe that statement is more true than many people think it is. What are known as American “ novelties” are to be found all over the world, and they are the result of a wonderfully generous Patents law - a law which has enabled protection for patentees to be obtained over a’ very large population, and has stimulated the inventive powers of Americans to an unusual degree. Undoubtedly the value of a patent is in proportion to the population of the country vo which it applies. From this point of view I wish to direct attention to the fact that, at the Colonial Conference last year, the subject of the mutual protection of patents was brought up, and it was understood that the Colonial Secretary was to correspond with the various Colonial Governments. On the 4th June last I asked whether any communication had been received from the Home Government on the subject, and I was informed by Senator Drake that such communication had been received, and that it would be laid on the table in due course. If by “due course” we were to understand a period when we were dealing with a Patents Bill, surely that time has arrived. We might very well object to go into Committee with the Bill until the correspondence had been produced. I have felt for a long while that it was absurd that the States of Australia should wait for Federation before they agreed to a common Patents law, and I feel now that one Patents law for the British Empire ought to be sufficient. I know that there are many difficulties - perhaps more than people generally imagine - but they are not insuperable. Tt would be worth while deferring the consideration -of this Bill if, by some delay, it would be possible to bring about an arrangement whereby a patent granted to an Australian should cover the British Empire. That would be something worth asking for. It would be very desirable for us to try to bring that about. At any rate, before we go into Committee Senator Drake ought to acquaint us with the correspondence which has taken place, and let us know whether -there is, on the part of the British Governmnent, any desire to bring about that -desirable state of affairs. The Minister has ‘given us no information on the subject of the finances relating to the Bill. It is a point on which the Senate might very well -ask for information. We all knew that we were to have a uniform Patents law, and the :general expectation of Australia was, at any rate prior to Federation, that we should have -one Patents-office and a distinct saving of expense in the matter of patents. I am distinctly opposed to the second reading of the Bill if the effect of it will be to give Australia seven Patents-offices. We have now six Patents-offices, and the effect of Federation ought to be that we should be able to do -with one Patents-office. The view I take is that we ought to have accompanying the Bill some statement of the expenditure -in «each State with regard to patents, and some statement of the intentions of the Government as to these numerous Patents-offices. Are they all to be continued, or are we to have one Patents-office. That is a point to which I direct the special attention of Senator Drake, and with which I hope he will deal faithfully in his reply, so that we may be able to decide what we are to do. We have had too much of this failure to remember the necessity of economy since Federation took place. Throughout the length and breadth of Australia it was said that Federation would allow of this and that amalgamation, and would bring .about savings in the too bloated expenditure of Australia ; but we have Bill’s brought in, and ihe word “ expenditure “ is not even mentioned. We are ‘ to have a Commissioner, but who knows anything about his salary ? Is it to be a big salary, or is it to be a small one ? Not a word on the subject has been said. From the beginning to the end no information has been vouchsafed to the Senate on the subject of the finances relating to the Bill. Senator Dobson, I think, is rather inclined to favour economy generally, and reckless expenditure specially in regard to patents. I draw those conclusions from the speech he delivered this afternoon. He appeared to desire that we should continue these numerous Patents -offices on the same footing as in the past. That I entirely object to. In America there are about 50 States, but I am quite sure that they have not 50 Patents-offices. They have one great Patents-office, and it is in having one office that the possibility of working at the minimum expenditure arises. Unless we deliberately aim, as a part of our procedure, not in one matter, but in all matters to economize where we can properly do so, then I hold that Federation, to a large extent, will have failed to achieve the objects for which tt was brought about. I also think that the Senate ought to be presented with a printed statement of the fees which are paid in the principal countries of the world, and the periods for which patents are granted. In his speech, Senator Drake certainly gave us a modicum of information on this point, but not that complete information to which we are entitled, nor has it been supplied in any printed form. Before we go into Committee, we ought to be supplied with information on those three distinct points. Now, with regard to the Bill, I have no hesitation in saying that, there is a great deal of reckless disregard of the interests of inventors in the matter of expenditure. The Commissioner, it seems, is to be located in a given State, and when any matter comes before him he is to be empowered to draw evidence from all quarters of Australia, and, under a penalty of £50, a man may be brought to Melbourne or Sydney from the north of Queensland or the far west of Western Australia. Altogether there are possibilities of making the expenditure for a patent, although it covers all Australia, exceed the expenditure with an Australian patentee at present incurs in getting six different patents, ls that a state of things whicli is desirable 1 We should, as far as we can, study the expense to the inventor, and it will be Eur better for the Commissioner to make periodical trips to different places than to drag all Australian inventors to his room, wherever it may be. The Bill requires that action shall be taken in the Supreme Court of the State where the seat of government is. That will not do at all. Most certainly the inventor ought to have the right of action in the State that suits him best. It is by means like these that we promote economy and the interest of the inventor, which this Bill is supposed to be brought in to further. While the inventor should have the right’ to appeal to the Supreme Court in his own State, yet, if there is to be a final appeal, it should be to the High’ Court of Australia. The High Court which is to be established should be the Supreme Court over all other Courts in such matters. I observe that the Commissioner is to be appointed by the Government, and, as 1 have said, the measure is silent as to the salary to be paid to him. I am not quite sure whether under the Bill any salary can be paid to him at all. It does not say so. The Government take no power to pay him any salary, but only to appoint him. But, no doubt, means will be found of providing a salary for him. This Senate has some right to understand all the details of the scheme with regard to the continuance of the existing Patents-offices and the emoluments to be paid to the new Commissioner. It will be noticed that the powers which are to be conferred on him are remarkably great. Powers are given to him which are ordinarily given to the Judges of our Courts. He not only has power to call witnesses from far and near, but to fine them up to £50 for nonattendance. These are matters that need watching very closely indeed. One matter to which I may call attention, and which was brought forward by a correspondent of one of the daily papers, was that it would be better to alter the title of the Court. Instead of calling it the Commonwealth Patent Court, it should be called the Australian Patent Court. That is a suggestion which would commend itself to honorable senators, and when we get into Committee I trust that the word Com mon wealth will be removed and the word “ Australian “ substituted, or, at any rate, that the word “ Australian “ will be put before the word “ Commonwealth.” With respect to the clauses regarding the manufacture of patented articles in Australia, I may point out that they are calculated to hamper the operations of small industries. We have in Australia a large number of very big industries which could bear heavy expenditure. We have also a considerable number of small industries to whom the expenditure of even a few pounds is a matter of importance. It is not desirable that business concerns employing ten or twenty hands - and there are many such - should be prevented by this measure from obtaining the full advantage of an invention vhich would assist them in their operations. The clause, even supposing we approved of its principle, seems to be unworkable. It uses the words -
Patented in such a manner that any person desiring to use it may obtain it, or the use of it at a reasonable price.
Who is to decide what is “ a reasonable price”? How is such a- clause to be worked. Paragraph (6) of clause S3 is worded simply ridiculously -
The” patentee shall not, after four years from the da’te of the patent, import the invention.
What is meant by that ? It does not say that he shall import the article manufactured under the invention.
– That is the meaning of “invention.” Look at the interpretation clause.
– Then a little bit of common sense might have been imported into the interpretation clause. Certainly the word invention should not cover two things - the discovery and the goods themselves. It is not a reasonable way of putting it. Passing by that point, which can be altered in Committee, I want to point out that clause 83 comes in conflict with the Tariff. Mir. Kingston under the Tariff has to admit certain articles at 20 per cent, or 25 per cent, duty, and then this Bill says that they shall hot come in at all. There is a conflict. The statement of Senator Pearce regarding the nonrecognition of foreign patents was one which I regretted to hear from him. If Senator Styles had made the statement, perhaps I should not have been surprised, because I know that he likes the idea of localizing things very much. For many years in the United States there was no Copyright Act, and that country was an ob,ject of scorn to literary men throughout Europe. That time has passed by, and the United States now has its Patents and Copyright laws. They give and they take. As was well said by Senator Gould, if we agree to recognise the Patents laws of other countries they will recognise ours. There is mutuality in it ; and the inventors of Australia are not only locally protected in regard to the demands of 4,000,000 of people, but also, on payment of a fee, enjoy the protection of America with 80,000,000 of people ; and for another payment secure the protection of a market of 40,000,000 of people in Great Britain. I am glad to observe that in the clauses dealing with penalties the author of this Bill, whom we may easily recognise, has not thought it wise to copy the section of the Customs Act. It is provided that a penalty may be reduced to a minimum when the offence is purely of a technical character. Even if a penalty is £50 or £100, the commissioner is not deprived of the power of reducing it to a nominal charge of ls. if he thinks fit. I hope that signs of repentance in one quarter will conduce to repentance where it is very desirable in another quarter.’ I do not desire to detain the Senate any longer, but I hope that the Postmaster-General in his reply will be good enough to refer specially to those matters to which I have drawn attention.
– I understood Senator Gould to say that he heartily approved of persons desiring to be attorneys under this Bill being examined, because inventors will have to apply for their patents through them. I do not read the Bill in that way. It seems to me that any one can apply, no matter if he is a blackfellow.
– Of course he can ; but I was arguing, both in the interests of the inventor and of the Department, that the inventor should employ a patent agent, in order to facilitate matters.
– I agree with some honorable senators who have said that fourteen years seems rather a short time for a patent to hold good. If I recollect rightly, a man who writes a book and copyrights it secures the protection of the copyright law for about 40 years at a cost of about halfacrown, or some other nominal sum. Surely, if copyright holds good for 40 years, a patent should hold good for a longer period than fourteen years. A man should have the full benefit of his brains, and the one process should be as cheap as the other. What is a good thing for the author is a good thing for the inventor ; and it is just as well to consider that point when the Bill gets into Committee. . I think it has been mentioned that there was a section in the South Australian Patents Act giving power to issue compulsory licences under such certain circumstances as are provided for under this Bill, but that it has never been done. It is very easy to explain why it has not been done in the case of reapers and binders. Reapers and binders came in free of duty, and were regarded as patents. The consumption would be so small that manufacturers could not undertake to build such machines in Australia without having the benefit of the whole Commonwealth market. If they attempted to do so, they would at once be swamped by the American manufacturers. No manufacturer could carry on in the small market which he would have in any one State. But reapers and binders are not patents now. They can be manufactured by any one who thinks fit to make them in Australia. I know that a great many people were under the impression that there were patented parts about them. The patents expired long ago, but still the little fiction is kept up. A good many years ago I was a victim to a swindle of that kind. I am surprised in looking through this Bill to find that, if a man tells an untruth to an inventor, by alleging that he is a registered patent agent, he is liable to be fined £100 ; whereas if a man sells a machine with the word “ patent “ upon it, when it is not a patented article, he is only fined £5. That is rather inconsistent. I bought a couple of machines weighing about 25 tons each. The word “patent” was stamped upon each piece of cast metal in letters about an inch long. I wanted to get some of the parts renewed, but the local manufactures were afraid to undertake the work. They would not even make me an offer though I was prepared to pay them what they liked to ask. I was told that I should have to send to England for the parts which I wanted renewed, but I set about designing something for myself that would, as I thought, act quite as well as the patented parts. It cost me some scores of pounds to have the parts designed, and then’ I found that I had been told a great lie - that out of the 50 tons of machinery not one ounce was patented. The lie was writ so large that I really believed it - it appeared in at least 20 places on each machine. On making this discovery, I, of course, had the machinery made on the spot. If the PostmasterGeneral will think the matter over he will find that it is quite as important, if not more. important than that a fine of £100 should be inflicted on a man who wrongly represents himself to be a patent agent. Then I think the fees proposed are rather high, and that the period of protection should be at least twice fourteen years. I have been an inventor twice myself, and have had some little practical experience in the way of spending perhaps a little more than I could afford on inventions. As a matter of fact, however, nobody ever wanted my inventions, and I never wanted them ‘ myself, so that the money I spent was all wasted. But the experience opened my eyes to a good deal in connexion with the working of the Patents law. I wish the Minister would, be good enough tq consider seriously the suggestion I have made, that the penalty of £5 should be increased to at least £100. If there were a duty on reapers and binders imported to Australia, as there should be, there would be nothing to prevent all the machines required being made in this country, because I am informed by an engineer, who ought to know, that not one ounce of these machines is patented. It is true they are all described as patented ; but if my information is correct there would be nothing to prevent any engineering establishment, if a sufficient duty were imposed, from manufacturing the whole of the machines required in Australia.
– I welcome the Bill if there is any possibility of it becoming law this session. I hardly think, however, that there is such a possibility, or at least a probability, considering the number of measures of vastly more importance which have yet to be dealt with. I hope, however, the Bill may become law, because in the State of Tasmania particularly inventive genius has up to the present certainly had a set-back, at any rate, so far as persons of limited means are concerned. On comparing the cost of obtaining letters patent for seven years in the various States, I find that in Tasmania it is £38, or just double that in any other State of the Commonwealth, the highest elsewhere being £18 or £19. That affords a reason why any Tasmanian representative should welcome this Bill, and express a hope that it may become Jaw before the end of the present session.
– The criticism offered has dealt rather with the difficulties of the situation than -with any faults in the measure, and in many cases it has been mutually destructive. The objection urged by Senator Gould and some other honorable senators is that the Bill, provides for too much centralization, and it is suggested that there should be in the various States Deputy Commissioners, and, so far as I can gather, almost complete Patents-offices. Senator Gould desires that a person should be able to apply for a patent in any State, and that the work of the examiner should be conducted in that State up to the point of the sealing of the patent. If that suggestion were carried out we should have to maintain seven Patents-offices in the Commonwealth instead of six as at present. But that suggestion is met by the objection urged by Senator Pulsford with so much force that it is desirable we should economise in this matter. I agree that if we are going to issue letters patent at the very low scale of fees fixed in the schedule, it is desirable that we should economise. If we have one fully equipped and competent Patents-office in the Commonwealth, it will be quite as much as can be expected, considering the lowness of the fees. . Another reason for having one office is that the issuing of patents is a business of such a peculiar character that it can be properly done only at one centre. It is necessary that at the office all records should be preserved, and access be possible to all the information available on the subject of patents. But I find also that those senators who have contended that this work should be done in each separate. State are not satisfied with the provision in the Bill with regard to the examiner, but they want that, official to go further, and decide the questions .of novelty and prior publication. I quite agree that if we could insure that the examiner would be absolutely correct in his decisions in this respect it would be very advantageous to place this duty upon him. But, seeing that there would always be considerable doubt as to whether he was correct, and that in any case his decision might be challenged by an objector, to give him this duty would be rather to put a pitfall in the way of persons applying for patents. An applicant would be induced to think that because his patent had passed the examiner it contained the essential of novelty, and that there had been no prior publication, whereas it might turn out after he had expended money in working the patent that it was defective in those respects, and then he would have only his labour for his pains. Seeing that there is a difference in the practice in the different States - that some hold it desirable that the question of novelty and prior publication should be dealt with by the examiner, and others take the contrary view - we have come to the conclusion that it is better that this duty should not be thrown on the examiner. In the report of the Conference, to which I have referred, and which Senator Gould quoted, it is stated that this question was discussed, and the members of the Conference agreed unanimously, with all their knowledge’ of the practice of the different States, that it was not desirable that the official examiner should be charged with the responsibility of deciding whether an invention was novel, or whether it had been previously published.
– The Conference proposed a step in that direction, which was taken.
– What the Conference proposed is, I think, what is proposed in the Bill, namely, that the determination of these questions should not be left to the official examiner. In .drafting the Bill, therefore, we have followed the advice of the chief officials of the various States, and a good deal of weight should be attached to their opinion. The Conference, on page & of their report, state that to leave the questions of novelty and prior publication to the examiner would be to make the inquiry too indefinite, and that the wide ground of opposition will satisfy all requirements. Unless we can so provide that the examiner will be able to go thoroughly into these questions and give such a decision as is likely to be absolutely correct, it is better not to place this duty upon him, in case we mislead applicants for patents. The three matters mentioned by Senator Pulsford will have my attention. I am making inquiries -now about the correspondence from the Secretary of State for the Colonies, and will endeavour to have it here when the Bill is discussed in Committee. But I do not think I shall be able to give Senator Pulsford all the other information he desires. That information deals with matters on which senators must form their own opinions, and those who desire it should obtain it for themselves. As to expenditure, supposing there was a provision in the Bill fixing the salary of the Commissioner, how much further would Senator Pulsford be towards ascertaining the exact cost of administering the Bill1? It is impossible in bringing down a Bill of this character to state exactly what the cost of the administration will be.
– Will the Minister give us any information as to the salary it is proposed to pay to the Commissioner 1
– I do not know that any opinion has been formed yet as to what salary should be paid to the Commissioner. I have no doubt, however, that I could ascertain approximately what is paid in the various States at the present time to the chief officers in the Patents-offices, and on that Senator Pulsford might be able to form an opinion. But if the Bill be adopted in its present form there is no doubt that as soon as the matters which have been specially dealt with in the separate States are worked off- if I may use the expression - the expense of administering the Patents law in the Commonwealth will be considerably less than it has been in the six different States. As to the fees which are charged in other countries, I have already informed the Senate of those charged in all the States at present, and in New Zealand, the United States, and Canada. If Senator Pulsford desires to know the fees charged in other countries, it would not be asking .too much of his industry if it were suggested that he should acquaint himself with those particulars. It was impossible for me to know beforehand each country with regard to which any honorable senator might require information. An honorable senator might desire to know the fees charged in China. I do not think I should be expected to make inquiries and come here with information with regard to all the countries in the world on the offchance of some honorable senator requiring information about one. particular country.
– It is not in regard to one particular country, but the general information which the honorable and learned gentleman might have foreseen would be required.
– I have supplied that. I anticipated that the Senate would desire to know what were the fees charged in the different States of the Commonwealth and in the principal countries situated as we are. I have given particulars of the fees charged in England, Canada, the United States, New Zealand, and each of our own States.
Those were the examples which I thought would be most useful to the Senate. Senator Pulsford has referred to the use of the word “ Commonwealth.” It is used because it is defined in our Interpretation Act to mean the Commonwealth of Australia, and there is, therefore, no necessity to say any more than “The Commonwealth.”
– The correspondent to whom I referred suggested that the word “ Commonwealth “ would not be so well understood abroad. If a patent were issued to some one in England from the Commonwealth it might not be so well understood.
– I expect that every country interested in our patent laws will know that “The Commonwealth” is the Commonwealth of Australia. No other country has made use of the designation since the time of Cromwell. Unless some other country wishes to share with us the title of “ The Commonwealth,” we may look upon the use of the words “ The Commonwealth “ as being sufficient for all purposes. Senator Styles has offered a criticism with regard to the penalties. I am inclined to think that a penalty of £5 would be rather low for any person who might take in the honorable senator. I can quite see that people might be deceived and that injury might be inflicted by marking goods as patented that were not the subject of a patent. In Committee we may consider the advisability of somewhat increasing that penalty. I intend to say a word upon Senator Pearce’s suggestion with regard to foreign patents. I cannot see that it would be any advantage to us in the long r.un to adopt the plan the honorable senator has recommended. I think Senator Pearce has more in view the case of a number of articles which have been patented in the past and which are now patented in foreign countries, But suppose a man comes here with a new invention in the form of a valuable improvement in a machine and desires to patent it here, how can we guard against his patenting it also in a foreign country? Under the scheme of this Bill it is not proposed that we shall ask an applicant if he is a British subject or a foreigner. We say that we desire to have the advantage of his inventive genius, and for that purpose we do not care whether he is a British subject or a foreigner. When he makes his application for a patent we do not know whether he has previously patented his article in a foreign country, and is it to be proposed that we should ask him to declare that he has not already patented the article in a- foreign country, and that he will not do so? I think that we should not do that. What we desire is the protection afforded by clauses S3 and S5.
– That is to say, an internal monopoly is preferable to an external monopoly.
– But we should not get the external monopoly. Even if the inventor patents anything in a foreign country, we provide by clause 83 that it shall be worked in Australia if it is also patented here. If at the time the patent was taken out for reapers and binders we had had a provision of that sort in force here, there would not have been the same trouble in connexion with those machines. It is provided really that ihe patent must be taken out here about the same time as in the foreign country, and, therefore, what disadvantage is it to us ? If at the time the reaper and binder was invented we had had such a provision in force, the inventor would have had to work it here for the Australian market, and we should probably have been, in regard to that particular invention, in as good a position as the United States.
– Senator Styles pointed out that, with the small market here, it would not have paid to manufacture the machine here.
– A country with four millions of people is not a very small market.
– There was but a small market prior to Federation.
– That is so ; and prior to Federation it was only with great difficulty that an inventor could get his invention patented in all the colonies. It seems .to me that it must be an advantage to a man to be able to patent his invention in a great many different countries. If we desire to encourage inventive genius, we should encourage inventors to register their patents here; otherwise the man who has got a good idea for a new patent will take it to some country where there is a large population, work it there, and seek from there to supply our market. I think that with clauses 83 and 85 working properly, we need not be afraid of any one having the right to patent an invention that is patented at the same time in a foreign country with a very much larger population. I do not think there is anything else I have to urge at this stage. I thank honorable senators for the attention given me in moving the second reading of the Bill.
– Is the honorable and learned senator preparedto give the Senate some definite pledge as to the policy of the Government with regard to the closing of the six Patents-offices in the various States, or are we to have a seventh Patents-Office?
– I hardly see how I can be required to give any such pledge. I bring the Bill before the Senate, and endeavour to explain it. According to the scheme of the Bill there will be one Patentsoffice at the seat of Government, where the Commissioner of Patents will be. During the period of transition, while we are recognising all the patents that have been issued in the different States, it will be absolutely necessary to have officers in those States, but most of those officers are performing other duties as well as looking after patents designs and trade marks, and they will continue to discharge their functions, subject to the control of the central Patentsoffice.
– Will the Commissioner of Patents visit different States?
– I do not think that would be a good plan. It is perfectly clear that he cannot be in more than one place at the same time, and while he is visiting one State he must be absent from the other five. I think it is preferable that the Commissioner of Patents should be found at the chief Patents-office in order that he may be able to do the business which will necessarily be concentrated there. This’ is a matter which will have to be left, to a certain extent, to the Commissioner of Patents, and no doubt, like every officer ocupying a similar position, he may consider it desirable to move about. Especially during the period of the transition he will require to go from one State to another to see how the law is working under the States registrars holding office at the present time. But the scheme of the Bill is to have a central office where applications will be received and dealt with.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clause 1 agreed to.
Clause 2 (Commencement).
– We have been promised by the PostmasterGeneral various memoranda for the assistance of the work of the Committee. Obviously, therefore, the time has arrived when the Postmaster-General should consent to postpone the committee stage of the Bill. I therefore ask the honorable and learned senator to postpone the further consideration of the Bill, and to proceed with other Government work.
– The early part of this Bill contains, I think, nothing of a contentious nature. The matters which Senator Pulsford has asked me to look after, are hardly such matters as necessitate any adjournment now. The first was a communication from the Secretary of State for the Colonies, and the second some particulars with regard to fees and finance. I have answered the honorable senator in regard to the latter. If we adjourned for a week I should not be able to tell the honorable senator what would be the cost of working an office under the scheme of the Bill. I have already given the fees charged in the principal countries in a position somewhat similar to our own. I think the Committee might very well go on with the consideration of the Bill until we reach some provision that is really contentious, or in regard to which we require some information from outside. During the discussion, the information which honorable senators require may be more apparent. It would not be advisable now to leave this Bill, and proceed to the further consideration of the Naturalization Bill.
– I would also urge the Postmaster-General to consent to report progress. The object of a debate on the second reading of a Bill is to elicit the opinions of honorable senators on its various provisions, but we have had no time to think over the various points which have been raised this evening. The honorable and learned gentleman proposes that we should proceed until we reach some contentious point. Clause 4 contains contentious matter, and what is gained by passing a few clauses to which we agree if no time is to be taken over them ? It is a bad course of procedure to lay down. Wo ought to insist that after the second reading of a Bill some time should elapse in order that the various points which have been raised may be considered.
– As a general rule I prefer that some time should elapse after the second reading of a Bill, before it is seriously considered in Committee. If I understand Senator Drake aright, he will not press to-night for a determination on any seriously contentious matter. That being so, perhaps Senator Pearce will have no objection to proceeding with the consideration of the Bill, until such a point is reached.
Senator PULSFORD (New South Wales). - When I arrived this afternoon, I expected that the Naturalization Bill would be the first order of day ; but the Government, in the exercise of their undoubted right, had placed the Patents Bill first on the business paper. I never dreamed that if we got past the second reading stage they would attempt to proceed with the consideraof the Bill in Committee. I thought that when Senator Drake concluded his second reading speech he might consent to adjourn the debate, and to resume the consideration of the Naturalization Bill. I cannot understand the object in putting that Bill aside. I think I am quite justified in all the circumstances, in asking Senator Drake to postpone the consideration of the Patents Bill until the Naturalization Bill has been dealt with.
– I think it is very sound practice to have an interval between the second reading of a Bill and its consideration in Committee. No one had an idea that the second reading of the Patents Bill would be carried at half -past eight o’clock this evening. The speech of Senator Drake this afternoon was interesting, and it is due to him and to us that we should have time to consider, not only his speech, but others which have been made. It is a new thing to me to hear the idea promulgated that it is difficult for politicians to change from one subject to another. Senator Drake said it would be’ difficult for us to change from the Patents Bill to the Naturalization Bill. Our minds are not like a telescope set to a particular focus. We can with great ease I think postpone the consideration of the Patents Bill, and ‘resume the consideration of the Naturalization Bill, and quite naturally effect the necessary charges which appear to be necessary in that measure.
– 1 differ from Senator Pearce. It would be far easier to me to go on with the Patents Bill than to deal with the Naturalization Bill. If we can only get as far as clause 4 we shall find that the remaining hour of the sitting will be taken up, because it raises the question of the duty of the Commissioner, the expense of his office, and whether he should travel about the States to hear applications there, or whether the applicant, with all his evidence, must come to him. I hope that the consideration of the Bill will be proceeded with.
– I suggest that honorable senators should deal with the first part of the Bill this evening, unless there is anything very contentious in clause 4. We need “not fight over the other clauses. If there is anything contentious in clause 4, it might be postponed.
Clause agreed to.
Clause 3 -
This Act is divided as follows : -
Part II. - Administration.
Division 1. The Minister, the Commonwealth Commissioner, and the Patent Office.
Part VIII.- Patent Attorneys.
– In my speech on the second reading, I raised the question of the title to be given to the new Patent Office. I do not see that the word “ Commonwealth “ is needed at all. An Australian patent should be an Australian patent, not a Commonwealth patent. We may have other Commonwealths formed in other parts of the world. We may have America saying - “ We shall call our patents Republican patents” ; and that would be objectionable. We may have some Empire calling its patents “Empire patents.” Therefore I move -
That the word “Commonwealth,” line 4, be omitted.
Senator MILLEN (New South Wales).If the word “ Australian “ were substituted for the word. “ Commonwealth,” a vista of difficulties would be opened up.
– We shall not agree to insert the word Australian.
– I understand that that is the proposal, and I wish to point out what a difficulty it would land us in. If the phrase “ Australian Commissioner “ were discovered in a paper he might be confused with another officer called the High Commissioner.
– I have no objection to the omission of the word “ Commonwealth “ ; but I object to putting in the word “Australian.”
– I am satisfied with that.
Amendment agreed to.
– It appears to me that the phrase “patent agents” would be better than the phrase “ patent attorneys,” unless there is a particular reason for retaining the word “ attorneys.” I have never heard of patent attorneys in bur Australian practice. I think that the phrase “ patent agents “ is always used.
– “ Patent attorneys” is the term which is used in the United States, and, I think, in Canada. The term “ agent “ is applied to a man who is distinctly a layman - a man who has no particular skill or knowledge, and has not passed any prescribed examination, or become a member of a class having special functions. The word “ attorneys “ is well known, and with the prefix “ patent “ it is rather a good title, I think. It will be observed that every solicitor of the Supreme Court of a State can be a patent attorney. We are creating a class analogous to the attorneys of the courts. The use of the word “ patent” shows that it is a class with some special knowledge and ability. There cannot be any possible confusion, because the prefix “ patent “ shows what these persons are.
– It means a lawyer.
– He may be a solicitor of the Supreme Court or any one who is on the register of the High Court; and all patent agents who have been practising for six months previous to the Act coming into operation may become patent attorneys without passing an examination. Seeing that all solicitors can be admitted I do not see any harm in using the expression “ patent attorneys “ ; I think it is rather a good idea. There is a little strangeness, perhaps, about the term in our ears now, but as soon as we get used to it I think it will be quite distinctive.
Senator MILLEN (New South Wales). - I move -
That the words “Part VITI.- Patent Attorneys,” be omitted.
It appears to me that the whole purpose of this part is to create a class who will pass examinations for the position of a kind of modified lawyer. Any one who has been practising for six months in a State, although he has passed no examination, is given a free entrance into this new guild, but every one else has to pass an examination which is prescribed.
– Except the solicitors.
– Yes. My experience in New South Wales has been that the nien who draw up the papers for an examination of this character are those who are in practice. Under the Dental Act, for instance, no one was allowed to practice except, of course, those who had previously been in practice, until he had passed an examination, which was practically controlled by those gentlemen. It was only human nature that they should attempt to limit the number of their class as much as possible. Unless it can be shown that some injury has resulted to the general public and to inventors from the fact that agents have not been under the control of an official, I cannot see why we should place a restriction upon those who wish to carry on the business of patent agents.
– Of course the honorable senator is perfectly light in raising the question now, but this is not the right time to decide it. He is challenging the whole of Part VIII. It would bt better not to determine that until we come to it in the Bill. The honorable senator’s rights are preserved. If the Committee strikes out those clauses, the words to which he objects in this clause must be omitted. ‘
– If we adopt the course suggested by the Postmaster- General we shall have already passed in this clause the words “ Patent attorneys,” and then we may later on strike out the whole of the provisions inregard to them. It would be better to postpone the clause altogether.
– It goes without saying that if Part VIII. is omitted we shall- recommit this clause.
Senator MILLEN (New South Wales).My reason for moving the amendment at this Stage was that one honorable senator desired to move the omission of the word “ attorney “ in order to substitute the word “ agent.” If my amendment is carried, any doubt upon that subject will be at once set at rest. It seems better to determine now whether we shall create by the Bill anything in the nature of a close guild or not. However, I am quite willing to postpone the amendment if it be the desire of the Senate.
– It would be unwise to strike out Part VIII. so as to leave it open for any person to act as an agent in reference to patents. It would lead to every man being his own lawyer
Senator PULSFORD (New South Wales). - The remarks made with reference to the term “Patent attorneys” bear out and strengthen the observations which I addressed to the Senate this afternoon. I feel personally indebted to Senator Millen for what he has said. I realize the strength of his contention, and feel the undesirability of proceeding in the dark with some of the clauses of the Bill. I, therefore, ask the Government to assent to a motion to report progress. That is the only way of postponing the clause now that it has been amended.
Senator CHARLESTON (South Australia). - If we struck out the word “ attorneys “ it would mean striking out the whole of the clauses referring to patent attorneys. That would lead to endless confusion. Instead of conducing to economy to those who patent articles, it would lead to endless expenditure and inconvenience. I know a great many inventors who are not conversant with office work, and who find it very difficult to get out specifications in a way that would make them acceptable to the Commissioner. If we have authorized persons who have passed examinations showing that they are fit to do this work, it will be a guarantee to inventors that they will be able to place their inventions before the Commissioner in such a way that they will be accepted. Otherwise an inventor might attempt to do’ the work himself, or might place it in the hands of some unqualified person, with the result that he would not be able to give that satisfaction which would justify the Commissioner in granting the patent applied for.
– I suggest to my honorable friend, Senator Millen, that he should withdraw his amendment for the present. We are now dealing only with the table of contents. We cannot settle anything upon that. The question cannot be discussed until we reach Part VIII., nor can the clause be postponed, because it has been amended ; but we will undertake torecommit the clause if any alteration ismade in Part VIII.
Amendment, by leave, withdrawn.
Clause, as amended, agreed to.
Clause i (Definitions).
Senator MILLEN (New South Wales). - I wish to suggest an amendment in the second paragraph defining the word “Invention.” The definition refers to section-i 6 of the Statute of Monopolies. It seems desirable that we should set out in words) what we mean instead of making reference to another Act. Would it not be better toincorporate the section of the Statute of Monopolies to which reference is made? We. should either incorporate the section absolutely, or put equivalent words into this definition.
– It may be a long section.
– A few additional lines of printing will be as nothing in comparison with the inconvenience, loss of time, and trouble to those who will have to work under this measure, if they have to refer to another Act.
– The object of framingthe definition in this form is, that by so doing we have the advantage of all the decisions that have been given during the last 300 ‘years in connexion with the law of patents. In Canada, the Parliament put in a definition of the word “ invention,” and inventors there have been saved enormous complication by the fact that the court* have ruled that the definition has reference to the Statute of Monopolies. Had it not been for that, the effect of a definition oft inventions being put in the definition clause of the Canadian Act would have prevented that country getting the advantage of all. those decisions. By the reference to the Statute of Monopolies, we make sure that we get the advantage of those decisions in cases which are almost innumerable and form a regular library in themselves.
– I am only asking that the section shall be incorporated in this clause.
– That would not help us. We are making quite sure of getting the advantage of all the decisions by referring directly to the Statute of Monopolies. No advantage will result from putting in the actual words of the statute.
Senator MILLEN (New South Wales). I cannot see that the honorable and learned senator has answered the objection I have raised. I do not ask for a different definition, but for the same definition. The Postmaster-General tells me that the words in the clause mean exactly the same as the words in the section, and yet that because the courts have given certain rulings under the English definition, they will give different rulings if we embody the words of the English Act in this Bill.
– We are perfectly safe under this definition.
– I am not asking’ the Postmaster-General to depart from the definition, but simply to use the exact words from the Act of King James, instead of referring us to some other statute.
Senator O’CONNOR (New South WalesVicePresident of the Executive Council). - The course followed in the Bill is that followed in Canada, America, the Australian States, Great Britain, and all Englishspeaking communities. I do not know whether Senator Millen has ever read an Act of Parliament of the time of King James I.
– It does not matter how archaic the language is, because in the Bill it is actually used, though the Government object to print it.
– The language is used by reference, and if the exact words are wanted, they can be seen in the statute, or in any book which contains the statute. If the words were embodied in the Bill, we should, in the midst of a modern Act of Parliament, have the kind of language used in an Act of Parliament in the time of King James I. : and I do not think such language would enlighten anybody. This statute is at the base of all the laws regarding patents in America, England, and the Commonwealth, and surely a more convenient mode of reference could not be devised. It is really more the decisions and interpretations of the section than the section itself which form the law ; and the advantage of the course adopted in the Bill is that we get all the benefit of the , section, and of the body of law founded on it, not only in England and the Australian States, but also in America.
Senator Lt.-Col. GOULD (New South Wales). - I should like to point out that this section in the Statute of Monopolies is in the nature of a proviso, and it shows clearly that it has some reference to a preceding part of the statute. If we embody section 6 we shall also have to embody as much more of the preceding sections as are applicable to the proviso ; and thus we should have a different form of language introduced into the measure. The moment we took such a course we should find ourselves in a sea of difficulties regarding the construction of what might be regarded by some as a very simple section. Its transposition into modern language might cause a difference in the interpretation of it. I hold in my hand Edmunds on Patents, and I find that this section occupies barely a third of a page, whilst 90 pages are devoted to matter explanatory of the legal decisions which have been given on the proviso. The moment we attempted alteration or consolidation we should probably find several of the decisions challenged, and a man who attempted to get a patent might be in a worse position than he is in under existing circumstances. The value of any alteration, or even consolidation, would be more than counterbalanced by the difficulties thrown in the way, not only of persons applying for patents, but of the courts in the interpretation of the words.
– May it not happen that something in the Bill will be found to be inconsistent with the Imperial measure ? If that be so, will it not tend to destroy the value of all these legal decisions 1
.- If there were any inconsistencies, the law would have to be construed in the face of the differences. As I before pointed out the great advantage of keeping as closely as we can to the wording of the English section is that we shall thereby have the benefit of the decisions of the highest courts. I quite agree with the position taken up by the members of the Government ; and as one who is anxious to extend the facilities for obtaining patents, I urge honorable senators to* allow the clause to pass as printed.
Senator McGREGOR (South Australia). I am astonished that it should be necessary to go back 300 years to find a definition of “ invention.” It would be more to the interests of inventors and of the general public, if we submitted this matter to some modern lawyer who has never read all the decisions referred to. It must be borne in. mind that the expense of referring to and searching these old volumes, must fall on the poor patentee and on the public ; and at the begining of the twentieth century it is about time we turned inventors and devised a definition more in accordance with the common language of to-day. If we are in any difficulty, I have no doubt that the Minister who devised the definitions in the Customs Act could supply the want just as ably as any lawyer of 300 years ago did for the Parliament of that time.
– If it is necessary to quote a statute of King James I. in order to define the word “invention,” why is it not necessary to follow the same course in regard to the word “ patent” ? I speak as a layman, but I fail to see what value the decisions under the English Patents Act can have in the construction of the clauses of the Bill before us.
– What is an invention which may be subject to letters-patent, depends on the decisions of the courts.
– Surely it should also be necessary to refer to the statute of King James I. with reference to the word “patent.”
– The Judges do not refer to the section, but to the decided cases.
– If we insert a new clause defining “invention,” there will be a new crop of decisions.
– I do not know that that would be such an awful calamity, or, indeed, that such a clause would add to litigation. It would seem that when some unfortunate layman who desires a patent takes up the Bill, he will be so staggered with the section that he will have to pay some lawyer 6s. 8d. to explain it to him. None of the public libraries are likely to contain a statute of James I.
– It is the word “ monopoly “ that is the trouble.
– There are several contentious matters in this clause, and I suggest that progress should be reported.
– I should be very thankful if honorable senators would now explain what objections they have to urge against the definitions in this clause. If, however, there are no further suggestions to be made, I am quite willing to postpone the further consideration of the clause.
– I should like to notify the Postmaster-General that I desire to move an amendment in the definition of “Supreme Court.” The clause provides that “ ‘ Supreme Court ‘ means the Supreme Court of the State in which the Patent Office is situated, or a Judge there of,” for which it is my desire to substitute “ ‘Supreme Court’ means the Supreme Court of the State in which the application for a patent is made.”
– That is a matter of substance, dealt with in one of the other clauses.
Senator DOBSON (Tasmania). - I should like to ask the Postmaster-General whether he will not enlarge the definition of the word “ Commissioner “ so as to include a Deputy Commissioner, if one should be appointed? We are all in favour of economy, and I certainly do not desire to have seven Patents-offices if we can do with one. I can quite see, however, that great expense may be involved to applicants in remote parts of the Commonwealth, if they have to go to the Commissioner in the Federal capital or in Melbourne.
– Does the honorable and learned senator think that there should be one deputy or six?
– I desire the PostmasterGeneral to tell us what the policy of the Government is upon that question. In answer to Senator Pulsford, the honorable and learned senator has said that that is a question for the Commissioner, but I think it is a question of policy which the Executive should decide. Before the Bill leaves the Committee, we require information with regard to the probable salary and expenses of the Commissioner, and as to how far it will be necessary to keep up the Patents-offices in the various States. These are all matters of practical administration, but they are all very important. It is true that in my own State the Registrar of Patents has several other duties to perform in addition to his patent work, and there will probably be no trouble there.
– It is so in most of the States.
– It may be so, but in New South Wales and Victoria I can believe that the Patents-offices entail considerable expense.
– The New South Wales office certainly does.
– If we adopt the plan of decentralization, as I think we should, and ask the Commissioner to travel about as a Supreme Court Judge goes on circuit, and it is found that there is too much work for the Commissioner to do, we may have to appoint a Deputy Commissioner. I asked Senator Drake to consider whether it would not be well in this interpretation -clause to make provision for a Deputy Commissioner or Commissioners if- it is found that they will be required. The suggestion made by Senator Pearce also raises a question upon which we should know what the policy of the Government is.
Senator Lt.-Col. GOULD (New South Wales). - I take it that the policy of the Government is very plain. This Bill contemplates the establishment of a system of centralization with one Commissioner, and I take that to be the policy of the Government. Then with regard to the question of the Supreme Court, Senator Drake told us in his introductory speech, and it is set out in the Bill itself, that the Supreme Court is to be the Supreme Court of the State in which the Patents-office may for the time being be located. In that matter I the Government have disclosed their policy I in the Bill. It may lae altered from time i to time in Committee, but if the Government consent to its .alteration the consent ( is a change in their policy, so far as it goes, forced upon them by the action of , honorable senators. While I agree with Senator Dobson that we are all anxious to have economy, we are also anxious that every facility should be given to inventors. The travelling about of the Commissioner of Patents from place to place would really be of very little help to persons seeking to register their inventions. One man will desire to register a patent to-day and another to-morrow, and they cannot await the advent of the Commissioner, as their applications must be referred to the examiner before the Commissioner gives a decision.
– We should have a list showing the average number of applications made in each State.
– I quite agree with the honorable and learned senator, and we should ascertain also the cost of carrying on the Patents-offices in each of the States. I know that in New South Wales the Comsioner of Patents is not able to transact other business as well- There is quite sufficient work in the New South Wales office to keep a staff of officers employed in dealing with patent applications alone. I am strongly opposed to centralization. We should decentralize the work of this Department as much as practicable. Whilst I recognise that everything must ultimately go to the Commissioner, I desire by decentralization to see every facility given to individuals who may wish to make applications for patents. With regard to the court, I shall certainly oppose the proposal that everything shall be dealt with by the Supreme Court of the State in which the Patents-office may for the time being be located. My idea is that the High Court should determine matters of this character* and that the States Courts should have concurrent jurisdiction in dealing with matters appertaining to applications made in separate States. It is necessary to make the whole business as cheap as possible to those who are personally interested. It is much better that questions of objection to the grant of a patent, of the infringement of a patent, or of the amendment of a patent should be decided in the State in which the patentee resides or in which the infringement complained of has taken place. It is not desirable that a man who has lodged a complaint in Western Australiashould have to come to Melbourne, or to the Federal capital, wherever it may be, to have his complaint investigated.
– If that is the position to be taken up, the best course to adopt will be to say that the present condition of affairs shall continue in the various States, and that for the future all patents granted in any of the States shall be granted as for the Commonwealth as a whole. That will save all the trouble and expense.
– We might have conflicting patents granted in the different States.
– That is impossible, because somebody will have priority of claim to a patent, and there is always an opportunity of appeal to a court to decide matters of that sort. If we are not going to have a central office, with a Commissioner of Patents who is to grant patents for the whole of the Commonwealth, we must resort to decentralization, and then we may just as well keep the present States Patents-offices open, and allow them to continue to grant patents, on the understanding that instead of their operation being confined to the boundary of the States in which they are granted, it shall extend to the whole Commonwealth. If we are to adopt the idea suggested by Senator Dobson, and appoint Deputy Commissioners, we shall have to read in the words “ Deputy Commissioner “ wherever we find the word “Commissioner” in the Bill, and I point out that we cannot have two men agreeing as to what patents shall be granted. That proposal is unworkable. The States will not be satisfied with one or two Deputy Commissioners, and we shall find that a Deputy Commissioner will be required for each State. Either the principle of the Bill must be adopted, or we must go back to the principle of making the decision of the States Patents Courts applicable to the whole of the Commonwealth. I believe that by centralization we can work the Department economically. We can have a central officer to grant patents, and we can have officers in the various States with power to receive applications, specifications, plans, and so on, to be forwarded to the Commissioner to be dealt with. Inventors living at a distance from the office of the Commissioner of Patents would thus be saved the trouble of going to the Commissioner. I desire that we should be as economical as possible, and I believe we shall get better results from centralization, than from the system which, I say, might possibly take its place. I am, therefore, inclined to support the Government in this matter, and I think that in working the Department will not be found to be so expensive as some honorable senators imagine. I believe we shall be able to get officers who in the various States “have done patent-office business, in addition to other duties, to continue to do their work for a nominal salary, and the work can be carried out with one head office move economically than it is at the present time with six offices.
– As the Postmaster-General proposes to postpone this clause with a view to its further consideration, I direct his attention t-> a rather remarkable feature of it. It will be noticed that, according to the clause, the “ Supreme Court” means “the Supreme Court of the State in which the Patentoffice is situated, or a Judge thereof.” That means that we are being asked by the Government in this Bill to agree that for all time that the Patent-office should be outside the Federal capital, because the Federal capital will not be in any State, -but in a separate territory.
– The territory will be in the State of New South Wales.
– But the territory is to be withdrawn from the State, and it would not be a legal definition to say that an office in the territory should be regarded as an office in a State. This is either a piece of the careless-draftsmanship of which I spoke this afternoon, or there is a cloven hoof somewhere in connexion with the capital site question, which the Government have so faithfully promised shall be settled during the present session. I call the attention of honorable senators to the fact that in this definition clause it is provided, that “State” means “a State of the Commonwealth, and includes a colony which has become a State.” Clearly that cannot mean the territory, which is to be the home of the Commonwealth, capital. This is only an additional reason why this clause should be postponed. I am entirely in agreement with the view s expressed by Senator Pearce and other honorable senators in favour of decentralization rather than of conducting all business pertaining to patents in the Commonwealth at one office. However economical such a plan may be to the Government, it will not be found economical for the unfortunate people who wish to secure patents. While I shall be no party to any extravagance, T must remind the Committee that it is perfectly impossible to “run” the Commonwealth without spending money. We have an elaborate stage coach Constitution which we cannot run at the cost of a donkey-cart. We cannot have this great Australian nation that we have been promised by the advocates of Federation without spending a little more money than is spent on an up-country municipality, .as some honorable senators seem to desire. I am not an advocate Of extravagance, but I am certainly not in favour of trying to interfere with the progress of Australia by trimming down the public expenditure in a manner that will be inconvenient to the whole community and detrimental to the progress of the people.
Senator CHARLESTON (South Australia). - I desire to ask the PostmasterGeneral whether the word “ State “ will include British New Guinea? Now that it is a dependency of the Commonwealth, it is highly essential that our Patents law should extend to British New Guinea.
– I shall take into consideration the question of widening the definition.
– At the same time Senator Drake might consider whether the definition of “ State” would include even the Northern Territory.
Senator PEARCE (Western Australia). - Before we start to further tamper with the definition clause,I wish to point out a conflicting interpretation of the word “ State.” In the Acts Interpretation Act it is defined to mean “a State of the Commonwealth,” but now we are asked to give a different interpretation to the term.
Senator Lt.-Col. GOULD (New South Wales). - I wish to point out that the suggestion of Senator Playford as to the possibility of allowing the State offices to remain in existence for the purpose of receiving applications and transmitting them to the central office is practically the course of action which I advocated in the way of providing for as much decentralization as possible, for I have recognised that there must be one head to deal with these matters. I consider that the better plan is to postpone the consideration of this definition clause, because one can see very plainly that a great many difficulties will crop up. It will be very much better to deal with the definitions of these terms after we have gone through the Bill and settled what shape our legislation is to take.
Senator MILLEN (New South Wales). - By this time I am perfectly satisfied that Senator Drake is very thankful to us for having given him an opportunity of revising this clause. In view of the discussion which has taken place as to the possibility of decentralizing some of the work under the Bill, I would suggest to him that the term “Patent-office,” should be altered to “Commonwealth Patent-office,” in view of the possibility of an amendment being made to provide that there shall be more than one Patents-office.
Senator PULSFORD (New South Wales). - I wish to inform the Postmaster-General that when we reach the definition of the term “Patent-office,” I shall move to add the words, “ of Australia,” with the view of making it clear throughout the world that an Australian patent is an Australian patent.
Senator Lt.-Col. NEILD (New South Wales). - I would suggest to Senator Pulsford that that amendment would come in more properly in the first line under the head of Commissioner. I wish to direct the attention of Senator Drake to the third definition - “ Law Officer” means the Attorney-General or Crown Solicitor of the Commonwealth.
I wish to know whether it is intended that the definition shall permit the alternate appointment of these officials if desired, whether the Law Officer maybe the AttorneyGeneral at one moment and the Crown Solicitor at another moment ? It is very much better that the Law Officer of this technical Department should be one person, and I think that he should be the permanent Law Officer rather than the evanescent Law Officer of the Crown as the AttorneyGeneral must necessarily be. I would suggest to Senator Drake that he should take into consideration the desirability of omitting the words “ Attorney-General or,” because it is much more convenient to have a continuous officer than a changing officer.
Clause 5 (Penalties at foot of sections).
Senator Lt.-Col. NEILD (New South Wales). - I desire to notify that when we come to deal with the penalties which are referred to in the clause I shallpropose that, in addition to the money penalty, there shall be some power of imprisonment, because, as I pointed out this afternoon, if an offender happens to have no money, it is not of much use to order him to pay something. Unless we are going to revive imprisonment for debt, I think it would be better to have a penalty involving some punishment rather than a nominal penalty that cannot be recovered.
Clause agreed to.
Clause 6 -
This Act shall not affect any proceedings pending under any State Patent Act, nor any right or liability acquired or incurred before the commencement of this Act, and any pending proceedings shall, subject to the provisions relating to the transfer of patent administration from the States to the Commonwealth, be continued and completed as if this Act had not been passed.
– This clause practically saves the right of patentees under States Acts ; but would it not be well in this or some other clause to lay down the terms and conditions under which a man may get a patent obtained in one State extended to the whole
Commonwealth ? Surely this is a clause in which it might be done.
– I think that’ is clear now.
– I do not think so. It is clear that the Bill saves the right of a patentee in the State in which hia patent was obtained ; but under what terms and conditions can ‘he get that right extended to the whole Commonwealth 1 Is he to start de novo, and make an application to the Commonwealth t
– I should say so.
– It seems that he has’ to do so. In a cose of that kind the amount which the patentee has paid in one State should be credited to him when his application is made.
– The condition ..must depend on the state of his patent in the place where it was obtained. It might have nearly run out, or it might have only just commenced to run.
– Take the case of a man who a few weeks before the Bill was proclaimed had obtained a patent in Victoria. For the expenditure of another £5 or £6 he could have obtained a patent for all Australia if he had ‘ waited ; but, in order to safeguard himself because of the danger of delay, he was forced to take out a patent in that State. That fact should be taken into consideration, and some deduction should be altered from the payment which he will have to make under the Act.
-Col. Gould. - Why should he have to make any payment 1
– Exactly. When a man invents anything he has to decide whether he will apply for a patent. Perhaps, if he were to wait until the Bill were passed, a person in another State might step in and rob him of his right, because, until he makes an application, he cannot prove that it was he who made the invention. We ought to make a provision in this clause to meet a case of that kind.
– There would be great difficulty in carrying out the idea of Senator Pearce, because it would depend to a great extent upon the unexpired term of the patent taken out in the State. The fees which have been , paid were those which were fixed by the State Act, and they have gone into the consolidated revenue of the State. If a patentee in any State wishes to take out a patent for the whole Commonwealth, provision is. made for that purpose; he may get his patent for the whole Commonwealth, with the exception of that State.
– By paying the full charge.
– The charges are fixed very low, and the probability is that the fees which he would be asked ‘to pay for patenting his invention in the five States would not amount to as much as the fees which lie had paid for getting a patent in the one State, and he might have had the advantage of possessing the patent for some time. That is a detail, but it emphasizes, to my mind, the great difficulty that there would be in making such an arrangement as the honorable senator suggests. We say that up to the time of the proclamation of the Act the laws in the several States are good, and all rights .are saved. A patentee has what he bargained for in a State. If he wishes to take out a Commonwealth patent he takes it out under this Bill, and gets his rights ‘secured for the other States by paying very small .fees. I do not see how we can take into .consideration the fees which he has paid to a State, and which belong to it exclusively. .
– I think it would be better for Senator Pearce to allow the clause to go as’ it is, because it protects the rights of a patentee in the State in which his patent is registered. And when we come to clause 43, which empowers him to register his patent in the Commonwealth, with the exception of the State in which it is already registered, we should strike out the reference to the exception, because, if it is worth his while - to get a patent for the five States, I do not think that it should make very much difference if his time should be extended for a year or two in such- State. If the Commissioner or other person refused to register the patent in the Commonwealth, he would still be protected for the remainder of his time in the State as provided in this clause.
– The Postmaster-General is again under a debt of gratitude to us for suggesting a postponement of -the consideration of the Bill, because it will enable him to get some idea of what it contains. Judging from the remark which he has just made, he is in ignorance of some of its provisions. I desire to draw his attention to a clause which he has entirely overlooked, if I understand his last utterance aright. Senator Pearce thinks that a man who has obtained a patent in one State ought to be enabled to get that patent extended to the rest of the Commonwealth. Senator Drake has pointed out that he can do so, and Senator McGregor has spoken on that assumption-; but there is a distinct provision in two paragraphs of clause 52 that it cannot be done. One of the grounds of opposition is that there has been an application of a prior date, or that the invention has been patented in a State.
– That is only “ a ground “ of opposition.
– The honorable and learned senator might- have allowed me to couple with that another portion of the clause,’ paragraph (/), which makes it a ground of opposition -
That the invention has been described in a book, or other printed publication published in the Commonwealth before the dato of the application, or is otherwise in the possession of the public.
The Government Gazette of N</w South Wales will contain particulars of patents issued in that State, and, consequently, an inventor’ in New South Wales having obtained a patent in that State, is doubly barred from obtaining a patent throughout the Commonwealth. The PostmasterGeneral has said that this Bill will enable a man to do what it is clear that it will not enable him to do. Surely there can be no doubt about the meaning of the clause. I ask the Postmaster-General now whether it is the intention to prevent the holder of a patent right in one State from obtaining a patent right for the Commonwealth ?
– Clause 43 says that a patent may be granted for one State to the exclusion of others. It gives power to the Commissioner to approve of a patent with the exception of one particular State,, no doubt on the ground that a patent has already been granted in that State. I think I shall be able to show that the difficulties that strike Senator Millen are more imaginary than real, and that it will be competent to obtain a patent for the whole Commonwealth.
Senate adjourned at 10.4 p.m.
Cite as: Australia, Senate, Debates, 15 July 1903, viewed 22 October 2017, <http://historichansard.net/senate/1903/19030715_senate_1_14/>.