1st Parliament · 2nd Session
The President took the chair at 2.30 p.m., and read prayers.
Senator STYLES presented two petitions from 123 electors of Victoria praying the Senate to prohibit the introduction, sale, and manufacture of intoxicating liquors in British New Guinea.
Senator CHARLESTON presented a similar petition from 79 electors of South Australia.
Senator BEST presented two similar petitions from 131 electors of Victoria.
Senator O’CONNOR presented a similar petition from 83 electors of New South Wales.
Senator Lt.-Col. CAMERON presented a similar petition from 31 electors of Tasmania.
Senator PULSFORD presented a similar petition from 36 electors of New South Wales.
Senator DOBSON presented a similar petition from 19 electors of Tasmania.
Senator STANIFORTH SMITH presented a petition from the Committee of the Victorian Auxiliary of the London Missionary Society, representing 13 missionaries and 110 native pastors in British New Guinea praying the Senate to confirm the provision in the Papua Bill which prohibits the manufacture and sale of intoxicating liquors in British New Guinea.
Petition received and read.
Senator DRAKE laid upon the table
Queensland Electoral Divisions Report.
Ordered to be printed.
– I desire to ask the Vice-President of the Executive Council, without notice, if the Government intend during the present week to take the business in the order in which it stands on the notice-paper ?
– It It is intended today to take the business in the order in which it stands down to the Patents Bill, which, it is supposed, will occupy the remainder of the sitting. To-morrow afternoon will be devoted to the consideration of private business, and in the evening I propose to ask honorable senators to deal with the standing orders. I understand that my honorable colleague the Minister for Defence will go on with the Eastern Extension Telegraph Company’s agreement for the remainder of the week, and on Tuesday next I propose to move the second reading of the Naval Agreement Bill.
The PRESIDENT laid upon the table the following communication from His Excellency the Governor-General -
Sydney, 10th August, 1903.
Sir, - I have the honour to acknowledge the receipt of your letter, dated 22nd July, 1903, forwarding a copy of certain resolutions agreed to by the Senate on the 17th July. In accordance with the address accompanying the resolutions, I have had the pleasure to forward the latter to the Secretary of State for the Colonies.
The Honorable the President of the Senate, Melbourne
In Committee (Consideration resumed from 16th July, vide page 2221) :
Any of the following persons may make application for a patent -
the actual inventor ; or (b)his assignee or nominee ; or
the actual inventor, jointly with the assignee of a part interest in the invention ;.or
Senator PULSFORD(New South Wales). - Before we resume the consideration of the Bill, I think it will be convenient to the Government, and perhaps agreeable to Senator Brake, to make a statement with regard to some subjects which have been mentioned. A month ago we were told that we could have no information in regard to the cost of the Patents-office and the salary of the Commissioner, because it would be forthcoming in the financial statement. So far as I cao sec, no provision is made in the Estimates for the Patents-office. It is very desirable before we proceed that we should have a statement from the Government as to its intentions with regard to the salary of the Commissioner and the maintenance or otherwise of the six establishments in the States.
– I should like the Minister for Defence, in his statement, to say whether the return as to tho number of patents issued in the States is yet available.
– The subject-matter referred to by Senator Pulsford does not come strictly under this clause, but I suppose that there will be no objection to my making a short statement. Some time ago I had a conference with my then colleague, the Minister for Trade and Customs, and though he found, as I did, that it would be impossible to say exactly what would be the cost of such a department as would be required, he considered that the salary which would have to be paid to a Commissioner would be from £800 to £1,000 per annum. He thought, and I entirely agree with him, that’ it would not bc advisable to fix the maximum at less than £1,000, as it was very important to get a man of ability and experience, and, as compared with the salaries of persons who discharge similar duties, £1,000 would not be excessive. If possible, however, a Commissioner would be obtained at a smaller salary. With regard to the Department, probably the salaries of the clerks would run into about £1 ,500 per annum. There is no doubt that a great saving will be effected, because the intention is that when a central Patents-office is established by degrees the Departments of the Registrars-General in the States will be relieved of this work. So far from there being an increased cost to the people of the Commonwealth involved in the passage of the Bill, I think it will result in effecting a considerable saving. I have tried to get the information which is desired by Senator Pearce, but it has not yet come to hand. I shall hasten its production.
– I shall now ask honorable senators to confine themselves strictly to the question before the Chair.
– I move -
That the word “actual,” line 3, be omitted, with a view to insert in lieu thereof the words “ true and first.”
Of course, the idea in using the phrase “actual inventor” is that the inventor himself should receive all the benefit. But honorable senators will perceive that there may be instances in which an actual inventor may patent his invention in some other part of the world, and may owing to its character not think it worth his while to take out a patent in the Commonwealth. I think it should than be in the power of any citizen of the Commonwealth to take the position of the true and first inventor and introduce the invention to the Commonwealth.
– On clause 15 this question was raised by Senator Charleston, and after discussion it was decided that the word “ actual” should stand. The point at issue is very simple, namely, whether the granting of letters patentis to be a reward to the person to whose inventive genius the world is indebted for a new process or article. What Senator McGregor proposes is that we should not restrict that reward to the actual inventor, but should allow letters patent to issue to any man who is the introducer of tho invention. The term “true and first inventor” is perhaps a little misleading. The words “ true and first” are used in the British statute, and they have been interpreted to include a person who is not an inventor, but the first introducer of an invention. Though in early times it might be considered a matter of almost equal merit to bring the invention of some one else into the country as to invent the article, yet, seeing that the means of communication are so much more easy and rapid than they were, the actual inventor is the person who should get the benefit. What we wish to do by the Bill is to stimulate the inventive genius of the people by giving a reward for an invention, and we do that best, I submit, by providing that the actual inventor shall get the benefit of the reward. There is less reason now than there used to be for holding out a special inducement to a middleman. If the actual inventor does not desire to take out letters patent, why should not the invention be open to any one to use? The protection of the Patents law should be open to the actual inventor, and if he does not desire to take out letters patent the public should have the advantage of the free use of machine or process if it is available.
– As stated by the Minister for Defence, we discussed this matter formerly upon an amendment of mine. I then accepted the defeat which I received as being a defeat of the principle. It would be useless to argue the question again.
Senator McGREGOR (South Australia). - The position put by the Minister for Defence is correct as far as it goes, but there are inventions of a very simple character that may have been patented in other countries,and the actual inventors of which may be perfectly satisfied with their monopoly in those countries. There may be an invention of such a character that, if a monopoly were not granted, it would not be worth while for any man to make the article here. If an inventor is not willing to patent his invention in Australia, any one else should have the opportunity of doing so.
– I think that Senator McGregor has overlooked the provision that the actual inventor of an article may obtain letters patent in conjunction with any person to whom he has assigned a part of his interest. There is nothing to prevent a man in Australia who knows of an invention in another country, and desires to introduce it, from getting letters patent if he does so with the permission of the actual inventor. But the operation of the amendment would be to oust the inventor in Australia.
Senator PULSFORD (New South Wales). - I think that the words “or nominee” ought to be inserted after the word “assignee” in paragraph (b). It will be seen that the “assignee or nominee” of the inventor are referred to. There seems to be no reason why, when an application may be made by the actual inventor or his assignee or nominee, if the actual inventor wishes to join with the assignee or nominee, those parties should be precluded. The amendment would only follow out the requirements of paragraph (b).
– I do not see any objection to adding the words “ or his nominee,” after the word “ inventor.”
Amendment (by Senator Pulsford) agreed to -
That after the word “ inventor,” in paragraph (c), the words “or his nominee” be inserted.
Clause, as amended, agreed to.
Clause 29 (Form of Application).
– Reference is made in this clause to the requirement that “an application for a patent shall be for one invention only.” The usual wording in Patents Bills has been followed, but in those cases there are also clauses making it possible to subdivide an application into more than one patent. There is nothing of the sort in this Bill. Perhaps the Minister will make a note of the point with a view to proposing an amendment.
– I think it is clear ; but I will make inquiries.
– In sub-clause (2) it is provided that the application must “set out the facts relied on.” I think the clause should state that “ among the facts relied on “ should be the name of the inventor and the nature of the authority of the application.
– That would have to be given in any case.
– The conditions are laid down in clause 28.
Clause agreed to.
Clause 30 -
All specifications must commence with a title sufficiently indicating the subject matter of the invention.
– I move -
That the word “sufficiently,” line 2, be omitted.
The word makes the clause rather too drastic. It leaves it to the Patents-office to say what is and what is not sufficient. That is an unnecessarily stringent power, and there can be no reason for insisting upon it.
– The amendment proposed will not get over the difficulty because it would still remain for the Patents-office to decide whether the application did indicate the subject-matter of the invention.
– There is ample power left, so that it need not be exaggerated.
Clause agreed to.
Clauses 31 and 32 agreed to.
Clause 33 -
Drawings shall accompany every specification if required by the Commissioner, and these shall be deemed part of the specification, but if the drawings which accompany a provisional specification are sufficient for the purposes of the complete specification, it shall suffice, if the complete specification refers to them.
-I think that this clause may be improved by inserting the word “ complete “ before the word “ specification “ in the first line, and by omitting the last portion of the clause beginning with the word “ but.” I move -
That after the word “every,” line 1, the word “ complete” be inserted.
– That amendment can hardly be agreed to. If the provisional specification is put in, and is an incomplete document, the drawings may be the only means of giving the examiner or Commissioner an. indication of what the invention is supposed to be.
– Inventors first ask for a provisional patent so that they can go on perfecting their ideas. Then when they come up to obtain a complete protection they have to present full and complete drawings. That is quite proper.
Clause agreed to.
Clause 34 agreed to.
Clause 35 -
Every application and specification shall forthwith be referred by the Commissioner to an examiner, who shall ascertain and report as to -
– The question of the position of the examiners is a very important one. We ought to know something about the powers that are to be given to the examiners, who they are to be, and whether they are to be temporarily appointed, or are to be the servants of the Patents-office.
– They would have to be experts, and could not be temporarily employed.
– Another thing about which I should like to obtain the opinion of the Committee is as to the necessity for referring the application to the examiner. It will be admitted that it is necessary to refer the specification. But the application is of a different nature. It is a mere matter for the consideration of the clerks in the office.
– Surely the honorable senator would not hold back the application when sending in the specification ?
– I should like the applications tobe judged by the clerks, and to send the specifications to experts. The clause says that the invention is to be reported upon by a person to be called an examiner. While he inquires into the merits of a patent, he need not be called upon to examine the mere application.
– He has to see that the specification agrees with the title.
– There is no reason why that duty should be put upon the examiner. He should examine into the scientific merits of the invention, and as to whether it has been patented before. I think the word “application” should be struck out.
– That would not improve the clause.
– I think it would ; but I shall not detain the Committee over a comparatively small matter if they do not wish to make the amendment.
– I think that in Victoria last year, when the Patents Bill was being considered, Parliament struck out a provision to compel the examiner to inquire minutely into provisional patents. In the British Act of 1902 there was no provision for inquiring very closely into provisional specifications. When the complete specifications are introduced there is a thorough investigation by the examiner, but, otherwise, the specifications are referred to the clerks to see if they are entered correctly. I have no wish to press an amendment on the subject, having mentioned it to the Committee.
– I move -
That the following new paragraph be added : -
This provision is taken from the Patents Acts of several of the States.
– Is not the point provided for by clause 37 1
– Clause 37 only deals with previous patents. There may be u question of novelty, as to which no question of. previous patents arises. The examiner under this clause will not be dealing with a provisional specification or application, but with the complete specification. If he reports satisfactorily on the three questions set out in the clause, the application will be granted. But the patentee will incur a certain amount of expense in completing his invention ; and when he goes to put it on the market he may find that it is not novel. The manufacturer to whom he goes may say - “ I have been using that article for years “ ; and all the inventor’s expense will have been thrown away. If he had known - and the examiner could easily have informed him - he would not have gone to the expense of completing his invention and making the further application. Even with the limited amount of business done in the Patents-office in New South Wales, a permanent examiner has been found necessary, and I assume that we shall require a permanent officer for the Commonwealth. While the examiner is investigating the title and description of the invention, and deciding whether the application and specification are as described, he can very easily at the same time decide whether the invention is novel to the. best of his knowledge. If that were done, applicants would be saved unnecessary expense, and the registers would not be crowded with a lot of useless patents.
– I can quite understand that if- the practice recommended by Senator Pearce were adopted and could be fully carried out, as in Germany and the United States, it would be of immense advantage to a person desiring to take out patent rights to have his application examined for novelty by the examiner. But that is supposing that the examination was of such a complete character, and was made by persons who had so complete a knowledge of the subject, that the decision as to novelty could be absolutely relied upon. So far as I . can gather from inquiries and reading on the. subject, if a decision did not come up to that standard it would be rather a pitfall a delusion and a snare to the applicant. The question for us to consider is whether we are prepared at the present stage to appoint examiners who will have such a complete knowledge of patents taken out throughout the world as to be able to pronounce on this question of novelty. If the decision of the examiner could not be absolutely relied upon, it would be better not to call on him to pronounce on the question of novelty at all. These considerations have operated with the” Government in draftdrafting this Bill, and we came to the conclusion that it would be better at present to leave the question of novelty to be decided by the applicant himself. If his invention is not novel he runs the risk of it being attacked, and according to the provisions of the Bill, honorable senators will see that even if the examiner were charged with the duty of pronouncing on the question of novelty, the inventor would not be protected by that.
– He would be saved a lot of expense.
– No ; it might be the means of running him into very considerable expense. If the applicant relies upon the examiner to tell him whether his invention has the merit of novelty, and he says - “ Yes, it is novel, go ahead,” the applicant will go ahead upon the strength of that decision, and, later on, some one may oppose the grant of a patent to him on the ground that his invention is not novel. The patent will not be indefeasible, and the patentee will not be protected by the fact that the examiner has pronounced that the invention has the merit of novelty. The applicant may simply be misled by the report of the examiner on the question of novelty.
– He will take the examiner’s report as a kind of indemnity.
– He will, and the difficulty is that it will not protect him.
– I should think that between the Commissioner and the examiner, the information to which Senator Pearce’s amendment refers might reasonably be given to the applicant.
– It is the examiner upon whom Senator Pearce is relying.
– I understand that the examiner will probably be an expert in mechanics, chemistry, and so forth, but surely the information as regards the legal side of the question may be supplied through the Commissioner, and in this way the applicant will have some guarantee in proceeding with his application.
– It is not a legal point at all, it is a question of fact whether the invention is or is not a novelty.
– The object of the Bill should be to liberalize the Patents laws as much as possible. The majority of inventors are poor men,’and I assume that it is our desire to enable them to register patents for their, inventions cheaply. We do not desire to force them to go to patent agents to get information which might reasonably be supplied to them through the Patents- office
– If a patent agent can give the information they require, surely the Commissioner of Patents should be able to give it.
– The necessity, for applying to patent agents has always been a source of great expense to applicants for patents, and as we desire to enable inventors to secure patents as cheaply as possible-, we should accept the amendment proposed by Senator Pearce. Senator Drake mentioned a salary of £1,000 a year for an officer of the Patents-office.
– The Commissioner.
– I think that under certain circumstances we might have an officer capable of filling the offices of Commissioner and Examiner, and surely an official so highly paid might be expected to give applicants the information desired ? I do not think it is right that the Patentsoffice should accept the whole responsibility, but Senator Pearce’s proposal is, in my opinion, so reasonable that I do not know how any one can argue against it.
– Should not the applicant know whether his invention is novel before he files his application 1
– I think that is asking too much of the applicant. How many men are there who apply for patents for inventions who are in a position to know whether they are novel or not ? I take it that the office we are about to bring into existence should be able to furnish the information desired to applicants for patents.
– I am afraid that Senator De Largie exaggerates the amount of omniscience which can be secured for a salary of £1,000 a year, if- he supposes that we can for that salary secure an officer capable of acting as Commissioner and Examiner, and be able to pronounce on the question of novelty with regard to every application that may come before him. Supposing a man desires to take out a patent for some dyeing process. He probably has devoted the greater part of his lifetime to the business, and is a practical dyer. He hasread up the subject, and has all the information upon it that is available. We have a Commissioner of Patents appointed at£ .1,000 a year, and Senator De Largie supposes that that individual should be a better judge than is this practical dyer whether the process which he desires to patent is or is not novel. At the same time this officer is expected to have the sameamount of practical knowledge with regard to every other invention which can be the subject of a patent. That is not reasonable. The applicant is asking for a patent in connexion with something with which he isparticularly intimate, and we may presume that he will have more knowledge upon that particular subject than would be possessed by any officer. Unless we had a very largestaff of examiners, having a knowledge, oneof one department of industry and one of another, so as to cover the whole field of scientific invention, it would be impossible for the Patents-office to undertake to pronounce with certainty whether any process for which an application was made for a patent, was novel.
– I agree that our Patents law should be as liberal as the Patents laws in any part of the world, because it is of immense advantage to any community to have a liberal law dealing with patents.. While I say that, I am entirely of the opinion that the effect of Senator Pearce’s amendment would be the reverse of what he expects. .Every applicant for a patent is a special expert in his particular line.
– And so will be the examiner.
– His information cannot be compared with that of the applicant in nine cases out of ten. For instance,, we may have an application for an improvement upon a machine which the applicant has been working for years. I have in my mind at the present time the instance of a patent being applied for of immense value. It is not a very big affair, but it is of vast importance to the community. The man who is applying for this patent is a special expert in his particular line, and no examiner of patents could pretend to have the knowledge which he possesses of this particular machine. The applicant for a patent will be better informed in regard to its novelty, in 99 cases out of 100, than will be the Commissioner of Patents or the examiner. If he is not, the chances will be that he is a humbug. I think that to introduce the “ red tape. “ which would be introduced by Senator Pearce’s amendment would be a mistake, and would only lead to failure.
– Senator Fraser is not stating the effect of the amendment fairly. Senator Pearce is proposing his amendment in the most liberal spirit for the convenience of the individual, for whom this Bill is being passed. What are we passing it for? Is it in order to save the Commissioner, or any of his officers, a certain amount of trouble?
SenatorFraser. -Do not introduce “red tape “ when it can be avoided.
– This amendment is being moved for the purpose of doing away with “ red tape.” The intention is to get the examiner, or whoever may be acting for him, to give information which in a very great many instances it is impossible for an inventor to obtain. I know a gentleman who has for the last 20 or 30 years, down on the lakes in South Australia, been trying to invent a flying machine. He is a South Australian native-born subject of His Majesty, and that ought to please SenatorFraser ; but he has never been to France, America, or to England. The Examiner of Patents we would appoint would be a highly-trained and highlyeducated gentleman possessed of all kinds of knowledge connected with his office.
– How could he have knowledge of all the patents granted in the world ?
– He would not be appointed unless he had a very extensive knowledge. I would ask Senator Fraser whether such an officer would not be likely to have information which would enable him to direct such an inventor as the man to whom I have referred, who has never been to other countries, and who has had no opportunity of reading about what has been done in other places. It is with a view to give assistance to inventors that Senator Pearce is trying to amend this Bill in the most liberal sense. The honorable senator has clearly pointed out that it is his intention that the examiner should certify whether an invention for which a patent is sought is of a novel character or not. If from his information the examiner tells the applicant that his invention is not novel, the inventor will know what he did not know before. There is no “ red-tape “ about that. It will probably save him a great amount of expense. Some of the most important inventions given to the world have been the outcome of the knowledge and experience of men who have travelled very little about the world, and have seldom been away from the places in which they lived. The examiner may do a great amount of service to these men, and it is for that purpose Senator Pearce is trying to amend the clause. I hope it will be amended in the interests of the inventor.
Senator PEARCE (Western Australia). - The object of my amendment is that the inventor, instead of having to place himself in the hands of a patent agent to find out whether his invention is novel, shall have that question determined by the examiner so far as he can determine it.
– Should not the onus of proof of novelty be upon the applicant ?
– I do not think it should. Where the examiner reports that an invention has the merit of novelty there is no liability assumed by the Patentsoffice. The liability of having to fight the patent later on still rests with the patentee. But the officials of the Patentsoffice will month by month be supplied with returns from the United States, Germany, and elsewhere of all patents issued, because these returns are exchanged between the various Patents-offices. No individual inventor will be supplied with that information, nor will he be able to get it in a library. The information can be got only from patent agents or from a patent office. When the Commissioner has information which will enable the question of novelty to be decided, why should he not use it ? If this is not done, the inventor will be forced to go to a patent agent, and to pay him a fee. What I propose will be in the interests of the public, because it will encourage inventions. I may tell honorable senators that my proposal is not a novel one, and I have no doubt that Senator Fraser helped to place a similar provision upon the Victorian statute-book. The returns from Patents-offices in various parts of the world will be filed month by month in the Commonwealth Patents-office, and the Commissioner will have access to them. Should not an individual patentee in the centre of Australia, or in the back-blocks of Western Australia or of Queensland, be able to get this information ?
SenatorFraser. - I grant that the applicant should be given the fullest information by the Patents-office.
– That is all my amendment provides for.
– The honorable senator is speaking about registration. That is provided for in the clause.
– I find the following provision in the Victorian Patents Act of 1890, which consolidated the law concerning letters patent : -
The Commissioner shall refer every application to an examiner, who shall ascertain and report to the Commissioner whether the nature of the invention has been fairly described, and whether the application, specification, and drawings (if any) have been prepared in the prescribed manner, and whether the title sufficiently indicates the subject-matter of the invention, and whether to the best of the knowledge of such examiner such invention is not novel or is already in the possession of the public with the consent or allowance of the true and first inventor, and upon such other matters as the Commissioner may in any case require.
It goes on to make a provision similar to the one in this Bill. Senator Drake has said that it is possible to carry out this provision in America and Germany, because they have all the information at their fingers’ ends. We have the same means of getting the information as they have. How do they get information from Australia? Simply by giving in exchange our register of patents for their registers. In America there is less voidance of patents than in any other country, although proportionately more letters patent are issued.
SenatorFraser. - Is this amendment in consonance with the provision in the American law ?
– I have not a copy of the American Act, but I am informed by an inventor who has made a study of the subject that this provision is contained in the Patents laws of the United States and Germany, and that there are fewer voidances of patents in the United States than in any other country. My informant is a member of the Inventors’ Institute of Melbourne.
– They are interested parties.
– This gentleman is interested on the side of the inventor. I am sure that the Committee desire to make the Bill as favorable as possible to the inventor. Surely we cannot go very far astray in adopting the provision in the Victorian Act? I dare say that Senator Zeal, who is a civil engineer, is in a position to say whether it has stood in the way of any patents being issued in this State. I have not heard that it is more difficult to obtain a patent in Victoria than in any other State. If we had been provided with the return for which I have asked, I believe we should learn that more patents have been taken out in this State than in any others.
– I can throw some light on this proposal, because I have recently had occasion to look into the question of patents. What the Minister for Defence has said is absolutely accurate. The result of the so-called guarantee in Germany and America is most misleading. They do not guarantee novelty, and the result is that the inventor, who is not always a very business-like man, has been known to take cases into court which were absolutely indefensible. I was informed that there had been more cases opposed in America than in anyother country. I got my information at first hand in connexion with a patent in which I am interested. We were anxious to know what steps’ we could take to make ourselves as secure as possible, and what was the relative value of each patent. When I laid stress on the fact that there was a guarantee as to novelty in America and Germany, my agent assured me that I ought not to rely on that.
– It goes without saying that every facility should be granted to an inventor to get a bonâ fide hearing of his application for a patent. On the other hand, I contend that when an inventor goes before a court to obtain a concession which gives a monopoly to him and to the prejudice of the public,he should state his case clearly and emphatically. If Senator Pearce had had as much experience of inventors as I have had, if he had known how they worry a man, hewould have taken with a grain of salt many of the statements which evidently have been made to him. Without doubt a patent for a meritorious invention is of great advantage to the public ; otherwise it is a great nuisance to the public, because it prevents inquiry in a direction in which it would otherwise take place. I shall give an instance of the way in which a patent acts most prejudicially to the public. In Victoria and New South “Wales there is a patent for incandescent mantles. A company was formed in the United Kingdom to take out patent rights for incandescent mantles. They omitted to do so in Western Australia, and the consequence is that the article can be purchased in that State for about a fourth of what it costs in Victoria. It- will be seen at once that great care should be exercised before a monopoly is granted to any one. Senator Pearce asks that the Government shallconstitute a court, and that the efforts >of its highly-paid officers shall be solely directed to protecting the inventor as against the public.
– No, I only propose that the examiners whom the Bill proposes to create shall report as to the novelty of an invention.
– How -can they do that 1 Surely if the energies and abilities of a man are directed into one channel, he is the best authority on that subject. In all probability he has been looking into the subject for months, perhaps years. In some cases it becomes an absolute mania with a man. I was once pestered to «death in my office, by a man who wished to get a patent for a flying machine, and because I objected to have my time wasted in “listening to what I thought was a silly proposal, I made. an enemy of him. I think that Senator Drake is bound i n the interests of the public to hold the scales evenly between the inventor and the public, because if a worthless patent is granted it will take a lot of time and trouble to upset it.
– Has the honorable senator known of such cases to occur under the Victorian Act?
– I do not suggest that the Victorian Act is perfect, but I contend that when an inventor asks for a privilege, the onus of proof that his invention is novel should rest with him. Senator Drake, as a lawyer, knows that publication damnifies an application for a patent.
Senator CHARLESTON (South Australia). - -It seems to me that if we are to give beneficial effect to the amendment, we ought to hold the examiner responsible in some way. Otherwise, all that Senator Drake has said would be quite true. Because the examiner had said that the invention was novel, the inventor would go away and labour to place his invention on the market, only to discover that he had been deceived by the statement and put to great expense. I cannot find the passage on the subject which I read a short time ago, but, if my memory serves me aright, it was very clearly stated that although in America the officials tell an inventor whether his invention is novel or not, yet, proportionately, a far greater, number of patents are upset in that country than in Great Britain, where such information is not given. I would ask Senator Pearce to consider of what value this information would be to an inventor, unless the examiner were in some way made responsible for its accuracy. I fail to see that it could serve any good purpose to the inventor.
– Both practices have been tried. One practice has been tried in one country, and another practice in another country. The English Committee, I understand, has come to the conclusion not to . require the examiner to pronounce as to novelty, and the Conference which sat in Melbourne indorsed that view. It should be clearly understood by honorable senators that at the present time the examiner reports as to whether an invention has been registered elsewhere. That is made part of the examiner’s duty under clause 37, but what Senate Pearce asks is that there shall be an officer who shall have such a complete knowledge of every subject under the sun that he shall be able to say absolutely whether an application for a new process or a machine has the merit of novelty. Take the case of a flying machine. The inventor has probably studied the particulars of every flying machine ever invented in order to engraft on the old inventions a screw or a valve which will make the article work better. The essence of his invention is that it is novel. He is the only man in the community who is supposed to know whether it is a novelty. Surely it is not to be expected that this inventor, with a lifelong experience about flying machines, is to go to the examiner and say - “I claim that it is a novelty, but I wish you to tell rae whether it is 1 “ What advantage could it be for the inventor to .get the word of an examiner which would not indemnify him in any way 1 What would be the use of getting an assurance that it was a novelty when immediately he had obtained his patent he might be assailed by another person on the ground of want of novelty 1 I quite understand the object which Senator Pearce has in view, but I submit that the provision would be more likely to deceive and mislead an inventor than to help him.
– I assume from the remarks of Senator Drake that the examiner would be supposed to have a knowledge of the novelty or otherwise of every invention which was submitted, but I take it that he would be able to receive evidence from qualified persons.
– Suppose it was a flying machine.
– Suppose it was a flying machine or other machine, the examiner is charged by the clause with the responsibility of ascertaining certain things. I have in my mind an instance which occurred, not in connexion with a patent, but in connexion with a trade design. An Australian inventor endeavoured to get the benefit of a trade design in connexion with something which he had been using very freely in these States. When he endeavoured to register the trade design he found that there were some people at the other end of the world who had something similar which they had patented, or in respect to which they had obtained a trade mark or design. It was impossible for him, with his limited funds, to fight these people, and so they were able to come into the various States and get the benefit of a monopoly, although the article which they put on the market was not a novelty at all. If there had been an examiner, who could have ascertained whether it was a novelty, or whether it had been used by the public, with or without the consent of the original inventor, the difficulties in that case would have been overcome. I should agree with Senator Pearce, even if he omitted the words “ with the consent or allowance of the inventor.” If the article has been in the possession of the public in Australia, and if the inventive genius of a person in Australia has produced that result contemporaneously with some person elsewhere, that is no reason why the latter should be able to come in and get a monopoly of the sale of the article. If the examiner is simply to ascertain thethree matters referred to in paragraphs (a),, (b), and (c), his duties will be very few indeed.
– The honorable senator has overlooked clauses 36 and 37.
– Even if he had only to inquire into the matters referred to in clauses 35, 36, and 37, the examiner would only be making formal inquiries. As a matter of convenience and justice to persons who might have cause to assign why patents should not be granted to applicants, the examiner should be vested with the function of determining whether or not a particular device or machine in respect of which an application for a patent is made has been previously in use by thepublic in Australia. If people have been using the article in Australia, and no one makes application for a patent in respect of it, those persons who are desirous of opposing the patent may state that it is not novel, and has been used previously; and if they can satisfy the examiner to that effect he should be allowed to inquire, and report whether the article is novel or not. I am simply endeavouring to show that the examiner should be able to ascertain whether the inventor has not only complied with the formal requisites laid down in the Bill to entitle him to get a patent, but that he should also be vested with the function of determining whether the inventor has complied with the material requisites, and should be able to report whether the article has been used in Australia, and whether it is novel or otherwise. There is a provision of this character in the Victorian legislation.
– It is to be remembered that I am not moving this amendment with, regard to the application for the provisional certificate, but as to the final grant of letters patent.
– I should supportthe amendment even if Senator Pearce proposed to go further.
Senator DE LARGIE (Western Australia). - We ought to be guided by the legislation of other countries with regard to this matter, because both systems have their advocates. If there is a Patents law which more than another is universally praised it is that of the United States. I have heard it said that the whole of the American prosperity could be traced to its Patents law, and that the difference between the progress made in inventions in the United States- and Great Britain was to be attributed to that cause. It is strongly in favour of Senator Pearce’s proposal that the United States has adopted its principle. I have here a copy of an article contributed to the Age newspaper by a well-known patent agent in Sydney, Mr. Arthur Griffith, who is thoroughly competent to speak on this subject. He has been a patents agent for some years, and consequently his opinion should have some weight with us.
– We have to look after the public, not after the inventors.
– We are charging the inventors a fee, and should give them value for their money. Mr. Arthur Griffith in his article says -
The United States Patent-office endeavours to assist on absolute novelty, as the basis of a grant, and searches the records not only of its own patent office but also those of other countries, whereas hitherto the British Patent-office has done little more than register any application for a patent that was not absolutely identical with one already granted, the question of infringement, novelty, and validity being left to the courts of law. Each system has its merits and defects, its admirers and opponents. My personal experience leads me to prefer the American system, on the ground that though it is more difficult and expensive to obtain a patent than under the English system, and thougha really good invention is sometimes rejected, yet a patent, when obtained, is infinitely more likely to be of value.
Here is a gentleman who is well fitted to speak on this subject. We also have the fact that the same proposal is contained in the most liberal Patents law in the world. I think the Senate will be doing right in adopting the amendment.
– I do not think that the case quoted by Senator Keating is analogous to the one which we are discussing. I do not know that in any country the examiner of a trade-mark is required to report upon the novelty of it. It would be almost impossible in the nature of things to do so.
– I was showing the hardships produced by a man not being able to tell whether a thing was novel or not.
– Until a case is determined in a court of law, no one may be able to tell whether a patent is novel within the meaning of the statute. A case in which I was professionally interested comes to my recollection. It concerned a particular sheep-shearing machine. A question of novelty arose. How was the case decided? We had to get all the differentshearing machines, have them taken to pieces, and examined to see whether the particular patented machine in question was novel or otherwise. If the decision of the examiner is to be of any use, he must, when a patent is asked for, get all this evidence himself, and decide whether an article is novel or not. In fact, the Commissioner will have to make himself responsible for deciding what ought to be decided by a court of law . if a patent were granted, and the grant was afterwards challenged. I think that some honorable senators are mixing up with this question the matter of prior registration, which is dealt with in clause 37. The question of novelty must be decided by a comparison between the article for which a patent has been obtained, and all other articles of a similar character for which patentsare in existence. Thatis a matterupon which the examiner should not be asked to give judgment. I admit that in the United States, where there has been a Patentsoffice for 100 years, with a museum attached, and where there is an enormous staff of experts, the opinion of those experts may be of some value. But it does not follow that because that is the American law now it is the law the Americans would adopt if they were starting afresh. The English committee has reported against it.
– Can the honorable and learned senator prove that the Americans would not adopt it if they were legislating to-day?
– I cannot; butbecause the American law to-day is as it stands, it is no proof that the successful working of it is due to the particular provision of which we are speaking. At all events, we ought not slavishly to follow the Patents laws of the United States or Germany. The subject has been discussed fully in many countries, and the latest advice which the Government can obtain shows that the experts are against the idea of requiring the examiners to report as to the novelty of a proposed patent.
Senator PEARCE (Western Australia). - I may be allowed to give an instance which will be fresh in the minds of some honorable senators. It relates to the system ofcyaniding known as the ForrestMcArthur process. The process was being practised throughout Australia, and was well-known in the United States, before it was patented by the Forrest-McArthur Company. But that company obtained a patent in Western Australia, and thereupon they proceeded by a system of what was nothing but blackmailing to levy charges upon unfortunate prospectors and mining companies.
– They claimed to have introduced a novelty on what had been done before.
– That was enabled to be done, because it was not the business of the Patents-office to inquire whether the process was novel. The consequence was that the Government had to buy out the patents rights of the company for £16,000.
– If the process was not novel the patent could have been upset.
– A number of law cases arose, but it was found impossible to upset the patent, and the Government had to buy out the rights of the company for £16,000. Senator Matheson and Senator Saunders, as well as others wh’o have experience in gold-mining, are aware of the facts.
– Some of the companies would not pay.
– It appears to me that that is an illustration of the need for the Patents-office being compelled to give an opinion on the question of novelty. If that opinion had been had in Western Australia patent rights in the cyaniding process would never have been granted to the ForrestMc Arthur Company.
Senator MATHESON (Western Australia). - I. should like to explain what happened in connexion with the cyaniding process to which reference has been made by Senator Pearce. The Western Australia law is that if a patent is taken out in England a patent in Western Australia necessarily follows if the parties interested choose to apply for it and perform certain prescribed requirements. The McArthur-Forrest people secured their patent in England, and in due course secured it also in Western Australia. The patent was at a later date attacked in England, and formed a subject of several decisions, which were eventually carried to the Court of Appeal. The result was that the McArthur-Forrest Company won, presumably on the ground that their process was a novelty. Therefore it was impossible to upset their patent rights in Western Australia. Whether the process was novel or not is a point upon which I cannot express any opinion. But I presume that the principle upon which they relied was that their diluted solution was a novelty as compared with the strong solution which had previously been used. It appears to me, however, that the argument based on that case does not help Senator Pearce in the slightest degree. In the matter of trade-marks, novelty is, I should say, a question of fact. One looks at a trademark and sees whether it infringes upon some other trade-mark. It is not an argumentative question, if one can produce another trade-mark which shows that the design has previously been registered. But, in the case of a patent, the question of novelty is not easily determined. One reads the specification, but it becomes a matter of argument as to whether it infringes upon the ideas contained in other specifications. The specification may deal with a combination of metals or of chemicals, and. a number of things which give rise te argument. It is absolutely impossible for aregistrar to give a binding opinion. The question must go to a court in case of dispute.
– Surely an expert can, give an opinion if a court of non-experts can. do so 1
– But we could not leave the expert to give a final opinion we must have recourse to a court.
– By way of appeal certainly.
– If there must be recourse to a court at all, what is the good of giving the vexatious and foolish security of a decision which merely induces; capitalists to put money into a patent under the impression that they have something which is novel, when as a matter of fact iti is not novel at all ?
Senator FRASER (Victoria). - A court is the proper body to decide the question of. novelty, because it is possible to bring experts before a court to hear their opinions, and to judge between them. It is only possible to form a sound opinion on such a. point after hearing experts on both sides.
Senator Sir WILLIAM ZEAL (Victoria). - It seems to me that a case in point is afforded by the present practice under the Transfer of Land Statute in Victoria. Suppose that a man wishes to put his land, under the Real Property Act by means of a transfer. He holds a title under what isknown as the old law - that is to say, hehas deeds coining down to him from a. former possessor of the property. He goes. to the Titles-office to obtain a new title. He puts in his old title, and the Examiner of Titles calls upon the neighbours to show cause why a new title should not be granted. The onus of proof is upon the applicant. We will say that the applicant applies for a right-of-way ina particular direction affecting the land in question. The Examiner says - “ Show your title, and the reasons why you want this application to be granted.” The Examiner does not go round to assist the applicant arid enable him to prove his claim against his neighbours. The neighbours in the case of a patent are the public. We have to do justice to the public. A patentee should have his rights, but nothing more. Therefore, the Minister for Defence - who, by the way, I congratulate upon his new office - is bound in the interests of the public to oppose this amendment, and to throw upon the inventor the onus of proof that he has a right to what he applies for.
Question - That the words proposed to be inserted be so inserted - put. The Committee divided.
Majority … 2
Question so resolved in the affirmative.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 36 agreed to.
Clause 37 -
In the case of all complete specifications the examiner shall also ascertain and report 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 fora patent in the Commonwealth or in any State.
– I have given notice of an amendment in this clause. I move -
That after the word “ State,” line5, the words “or in the United Kingdom or in any foreign country “ be inserted.
During the debate on the second reading of the Bill I intimated my intention to move in Committee to prevent the patenting of inventions in Australia which have previously been patented in the United Kingdom or in any foreign country. I propose to test the principle on this amendment. I think that the examiner should be required to say whether an application deals with an invention already patented, not only in the Commonwealth or in any State, but also in the United Kingdom, or in any foreign country, with the object of moving later on that, where an invention has been patented in the United Kingdom, or in any foreign country, no patent for that invention shall be issued in the Commonwealth. If the amendment is not accepted, I shall not move the the further amendments necessary to give effect to it. I gave my reasons for what I propose on thesecond reading. I do not believe in granting patents to inventors outside Australia. This is a Bill to encourage the patenting of inventions in Australia, and it is not a Bill to give monopolies to persons who have patented inventions outside Australia.
– Could they not get over the difficulty by patenting their inventions here simultaneously?
– I admit that they could, or by patenting them here first. Honorable senators are aware that many articles have been patented outside of Australia for many years, and when a demand for them springs up in Australia the patentee at once patents his invention in Australia, and heis then given a monopoly for Australia. He continues to manufacture the patented article in the country in which he has established his works, and Australian manufacturers are prevented from making it, with the result that he fixes the price as high as he pleases.
– Could the honorable senator give an instance of that?
– On the second reading I used the instance of the reaper and binder, and I pointed out that the price put upon that implement was altogether beyond reason.
– It was patented here in time.
– It was. But the reason for the high price charged for the implement was that the local manufacturers could not make it without paying the royalty fixed by the American inventor and manufacturer. My amendment is intended to prevent that. Its effect in this particular instance would be that the local manufacturers would be able to manufacture the implement, and then the American inventor and manufacturer would require to enter upon a fair competition with them by bringing down his price until he beat them out of the market, or was beaten out himself. The object of this Bill is to encourage inventions amongst our own people, and we do not encourage inventions amongst our own people by giving a monopoly to foreign inventors and manufacturers. When our manufacturers are prevented from manufacturing these patented articles it is very improbable that they will ever invent any improvement upon them. Honorable senators know that when the patent rights for a particular article run out, and manufacturers generally begin its manufacture, they very speedily discover considerable improvements upon the original patent. Honorable senators will remember the instance of the reaping machine, invented in South Australia in the seventies. When that machine was being made by manufacturers on royalty, one of them invented a damp weather attachment. The machine, manufactured under the original patent, could only be worked in dry weather ; but as soon as manufacturers began to make the machine, a man who was not the original inventor, invented an attachment by which it could be worked in damp weather.
– He could only get a patent for the damp-weather attachment.
– I know that.I am pointing out that if our manufacturers had the right to use foreign inventions-
SenatorFraser. - The honorable senator means to copy them ?
– The honorable senator proposes a sort of piracy.
– Senator De Largie may call it by that name, but that is not the right term to use, since it has never been claimed for this Bill that it is a Bill to encourage inventions all over the world. Its object is to encourage inventions in Australia. By giving the American inventor the monopoly of the Australian market, we do not encourage the Australian inventor. As I have said, I propose to test the principle by the amendment in this clause. If my amendment is carried, we shall underthis clause get the information whether a patent applied for has been patented in the Commonwealth, in any State, in the United Kingdom, or in any foreign country, and where it is shown that a patent has previously been patented in the United Kingdom or in any foreign country, I intend to propose that no patent shall issue in the Commonwealth.
– Whilst I am willing to assist Senator Pearce to liberalize this Patents Bill, I cannot go so far as the honorable senator proposes on this occasion. I am afraid that instead of liberalizing the measure the honorable senator is here taking an opposite course. It is quite true, as Senator Pearce says, that the object of the Bill is to encourage inventions within the Commonwealth. We may, later on, have jurisdiction outside the Commonwealth, and may be able to legislate for the whole of the civilized world, but whilst we are making a law for the Commonwealth at present, it must be borne in mind that its effects may be felt beyond the Commonwealth. It is certain that if we take this unfair advantage of foreign inventors they will quickly get level with us by playing off the same game. If we do not agree to reciprocity in the treatment of inventors of other countries, we cannot expect our inventors to be given the benefit of the Patents laws of other countries. Senator Pearce’s proposal would ultimately lead to other countries taking the unfair advantage of our inventors which he is proposing under his amendment to take of the inventors in the whole of the rest of the world. This proposal is in opposition to the whole spirit of Patents laws the whole world over, and I hope it will not be supported. It is strange that a free-trader should make a proposal of this kind. I agree that we should encourage our own inventors, and we shall best do that by recognising the rights of inventors in other countries. To shut our eyes to their rights will be to induce other countries to shut out the work of our own inventors.
– It will be conceded by any person who has studied this matter, that the great advantage to a patentee is to secure the markets of the world and not merely the market of Australia. We are here so limited a community, that for a valuable invention there may be only a limited demand in Australia. I remind Senator Pearce of a notable instance of this. Some time ago an invention known as the Brennan torpedo was launched in Victoria. This proved to be such a valuable weapon that Mr. Brennan having previously registered his invention in the old country, went to England, the Admiralty bought his invention from him at a very large price, and it has now become one of the recognised weapons of defence all over the world. Brennan was an Australian and a Victorian, and he went Home to obtain the larger market which was open to him by the reciprocity existing between the Colonial and English Patents laws. Senator De Largie’s argument is unanswerable, and if we desire justice we must act justly. If we shut out the inventions of people in other parts of the world, we shall suffer by it. If an invention is discovered here which is worthy of consideration, it will be worth a great deal more if it can be launched upon the larger markets of the world, as may be done under the existing Patents laws. ‘
Senator PEARCE (Western Australia). - I point but to Senator Zeal that this Bill would not help Mr. Brennan. If the honorable senator will turn to clause 91, he will find that the inventor of any improvement in instruments or munitions of war may assign the invention, and the patent sought to be obtained for the invention to the Commonwealth, and the Minister for Defence may direct that the invention, and the manner in which it is worked shall be kept secret. I should like to hear from Senator Drake what attitude the Government propose to adopt in connexion with my amendment.
– Senator Pearce has told us candidly enough that he desires by this amendment that we should refuse to give patent rights to any one who has patented his invention in the United Kingdom, or in any foreign country. I think that is very inadvisable. It is the invention that we want, and we need not care who the inventor is. What does it matter whether the inventor is a foreigner, a Briton, or an Australian, if we get the benefit of his invention ? The object of a Patents law is to encourage men to invent, and to give to the world the benefit of their inventions. We have a -clause in the Bill further on, providing that if a particular invention is patented here, it shall be manufactured here. That seems to be a very great advantage. I cannot see how it matters in the slightest degree whether an invention has been patented in a foreign country or not if we get the benefit of it in Australia. If a Frenchman invents something and patents- it in France, why should he not be allowed to patent his invention here and manufacture it here ?
– He will not manufacture it here.
Senatoy DRAKE. - He probably will, if we give him the advantage of protection here. We shall have the advantage of having the- article produced here and sold on the spot to exactly the same extent as if the man had been an Australian. If a man invents a machine and patents it in France, and also patents it here, will not the result be “just the same as if he patented his machine in the first place in Australia 1 I cannot see any advantage whatever to be gained from doing what Senator Pearce proposes. I think that, in this matter, we are entitled to encourage inventive genius, not only amongst our own people, but amongst all from whom we may get valuable ideas.
– It is always a painful thing to see a good man go wrong. I confess I am very sorry to have heard the speech made by Senator Pearce. I have looked upon the honorable senator as being always desirous of doing what is fair and square to the world at large ; but his speech this afternoon does not support that view of the honorable senator. I cannot see how the course proposed by Senator Pearce would be likely to advantage Australia. It holds out an open inducement to other countries to pass retaliatory legislation, which might have a very prejudicial effect on Australian inventors. An Australian inventor has a very small local market, and it is to the world that he must look for his large profits. We ought not, in a matter of patents legislation, to do anything to offend other countries. I do not see any occasion to debate the matter at length, and I hope that Senator Pearce will withdraw his amendment, and re-establish himself as soon as he can in our good graces.
Senator PEARCE (Western Australia). - I do not propose to attempt just now to re-establish myself in the good graces of Senator Pulsford. The Minister for Defence supplied me with a splendid text on which to preach a sermon in favour of my proposal when he said - “ It is the invention and not the inventor we want.” The object of my amendment’ is to get the inventions of all the world, but the view of Senator Drake appears to be that we ought to give an inventor a monopoly of our market for a fee of £5.
– We give an inventor a monopoly because we get the benefit of his invention.
– But we do not get the benefit of the invention, as was shown in the case of the reaper and binder.
– In that case we did get the benefit of the invention.
– But only at an exorbitant price.
– The reaper and binder was not manufactured here.
– It was not manufactured here because of our Patents laws.
– But we propose to alter that state of affairs by clause 83.
– I ask Senator Puls- ford to look at clause 83 and see whether the amendment I now” propose is not much to be preferred. That clause provides that the manufacture of any patented article shall after a period of five years be carried on within the Commonwealth ; so that the Government already recognise the principle which I am now advocating, only they propose to attain the same end in another way. Mining plant is manufactured more cheaply in America than in any other country, because there the inventor has a large mining population to cater for, and can also supply similar mining communities all over the world. Are we to ask an American inventor to erect a factory and provide expensive machinery in Australia, merely in order to turn out one or two articles in the course of a year? Is clause 83 not as much a breach of international law, and as likely to bring about reprisals, as my proposal ? I am surprised that Senator Pulsford, who has always posed as a free-trader, should practically commit himself to this Bill, which contains the most drastic protectionist proposals.
– If all countries imposed’ a similar condition, the inventor could only have the benefit of the market in one country.
– Certainly; and an inventor who was a business man would- go to the country where there was the best market, just as Mr. Brennan took his torpedo to England.
– Does Senator Pearce want to drive all our inventors abroad 1
– I ask Senator Playford whether the Ridley stripper was adopted to any extent in any other country?
– Is it the contention of Senator Pearce that if an article be patented in Australia, the inventor should have no protection against manufacturers in Europe and America 1
– My contention is that other countries may please themselves.
– What about the copyright reciprocity as between Great Britain and the United States ?
– I am told that the piracy of works in America is very often complained of by English writers.
– The honorable senator is giving an ugly name to his proposal.
– The Patents law. confers a right, and, therefore, a violation of that law is piracy ; but unless we confer a right there can be no piracy. And I contend that we are not justified in conferring such a right except in Australia - that we are not justified in giving a monopoly to foreigners, and thus preventing Australians manufacturing articles patented in other countries.
– Would the honorable senator refuse to grant a patent to a foreigner?
– When no previous application for a patent has been made, I would allow a patent to issue.
– How would it be known that the foreigner’s was the first application ?
– My amendment is for the purpose of having the patents of various foreign countries tabulated in the same way as are the patents in the States. I am sorry my amendment has not received more support, but I shall take it to a vote.
– I admitthat if a person has neglected to apply for a patent in the Commonwealth he ought not to be protected.
– That is the presentlaw.
SenatorFRASER. - But Senator Pearce proposes that there shall be no reciprocity at all with other countries, but that we shall plagiarize - though that does not appear to be the proper word - and get the benefit of all the patents of the world. To use stronger language, we would rob people of their brains, and give them no quid pro quo. That would not be fair play, and I think that to pass such a law would be a disgrace.
– The amendment would confine the market so much that there would be no encouragement to inventors.
SenatorFRASER. - Quite so. I admit that if we in Australia were to take such a course, we should have very much thebest of the bargain.
– I do not think so.
SenatorFRASER. - For one patent in Australia there are a thousand in other countries. As to the reaper and binder, if manufacturers could go in defiance of the Patents laws of the world, no doubt that machine could be manufactured here at a lower price than that at which it is now sold ; but that advantage would be obtained at the expense of the violation of an honest principle.
Senator DE LARGIE (Western Australia). - When Senator Pearce spoke very strongly on this point during the secondreading debate, his suggestion was met with so much opposition that I was under the impression he would not move an amendment in Committee. The fact that Senator Pearce now intends to take the amendment to a vote shows how earnestly he regards the matter ; and the only explanation I can suggest of his present attitude is that he is a descendant of Cornish people who, in the olden days, were great free-traders and freebooters on their coasts. No doubt it is Senator Pearce’s nationality which is coming to the front in spite of himself ; and if Senator Charleston is also trueto the principles of his forefathers he doubtless will support the amendment. I am satisfied, however, that such a law would not be recognised in any civilized country.
-I am what may be called a moderate protectionist, while no doubt Senator Pearce would like to call himself a free-trader. But if Senator Pearce is a free-trader, he is a free-trader gone mad on protection. The proposal of the Government is protective, and declares that if a patent be granted in another part of the world, and also in Australia, the article patented must within a certain time be manufactured here. Senator Pearce would not allow such inventors any time at all ; but, as a fact, he would steal the whole of the inventions of the world for the benefit, as he thinks, of Australia. Senator Pearce would protect Australian industry to an outrageous extent. Under the circumstances the most we can say to an inventor is, that if he wishes his patent to berespectedin Australia, the article patented must, within a given time, be manufactured here. There is no doubt, as Senator Fraser said, that we in Australia would be the gainers under the amendment, because for one invention in Australia there are thousands elsewhere. But that would be to steal the product of other peoples’ brains, and to make a departure from the practice of all civilized communities.
– There is no Patents law in Holland.
– I did not know that our Dutch cousins had gone so far ; and no doubt they are the horrid exception which proves the rule.
– The honorable senator does not say that the Dutch people are not civilized?
– I do not wish to say that, because we are descended from the same stock. The inventions introduced in the colonies hitherto have been mostly such as could not very well be applied in other parts of the world. I knew Mr. Ridley very well, and his stripper was a very valuable machine. At one time reaping used to be done with a sickle, and it cost from 16s. to £1 to reap an acre of wheat - a charge that it would be impossible to pay atthe present price of wheat. But the conditions have altered immensely, and a man with amachine and four horses can now reap and thresh ten acres in a day. The stripper is used in all parts of the Commonwealth where the conditions are favorable, but where the climate is damp the reaper and binder is found to be more profitable. Another invention which emanated from the model State of South Australia is the stumpjump plough, which is very useful in certain portions of that State, and also in Victoria and New South Wales ; but, although I have travelled in Canada and other countries,I do not know of any conditions elsewhere which would make its use desirable. I do not think the stump-jump plough would be of much use where red wood and in some instances pines have been cut down in the forests of Canada. Under the circumstances, I think the amendment ought to be withdrawn.
Clause agreed to.
If the examiner reports adversely to the application or specification on any matter referred to in sections 35 and 36, the Commissioner may -
– Is it not desirable and necessary that the Commissioner should be given the option of refusing an application ? We have already provided in clause 35 that the examiner shall report as to whether an invention is novel, and in the event of finding that it is not novel, he ought to have power to refuse the application. I move -
That the following words be added : - “(c) refuse the application.”
I think it would be better to insert a new clause before clause 43, which provides that if the Commissioner is not satisfied with certain things he may refuse the application. We can provide in the new clause that if the Commissioner is satisfied that the claim of novelty for the invention is correct–
– But clause 43 is governed by clause 42, which deals with the issue of patents in the States.
– What I propose to do is to ask the Committee to insert before clause 43 a clause dealing with the question of novelty.
– Surely clause 38 is the right place in which to insert that provision?
– Would it not be just as well to say in clause 38 that the Commissioner may refuse the application?
– I hesitate to take that course, because it is a tremendous power to place in the hands of the examiner. I think we shall find presently the bad effects of the amendment which has been carried. What is to happen if the examiner reports that an invention is not novel? Is the application to be absolutely rejected? The question whether an invention is novel or not is decided very often after a long action at law. Yet it is proposed that an officer who probably will be over-worked, from what we have heard, shall have the power to say, “ No ; this invention wants novelty, and the application is thrown out.” The applicant may have spent years in bringing his invention to maturity, and yet it is to be knocked out on the ipse dixit of the examiner.
– No ; on the report of the Commissioner.
– I think it is going too far to empower the Commissioner to refuse an application on the report of the examiner that the invention lacks novelty.
Senator PEARCE (Western Australia). - I hope that the Minister for Defence is not seeking to re-open the question as to novelty which was decided this afternoon. If the examiner reports that the invention is not novel the Commissioner hears the application, and if he refuses to register, that is not final. If the applicant is not satisfied with the decision of the Commissioner he can appeal, under clause 39, to the law officer. The question is not decided on the ipse dixit of the examiner. Where is the hardship which has been depicted by Senator Drake? I think that every facility is granted, and I intend to press my amendment, because it seems to me that Senator Drake is seeking, by a side wind, to defeat the decision of the Committee on clause 35. He proposes to make this provision in clause 43, but that deals with the question whether a patent has been issued. The Committee has decided that the question of novelty shall be one of the determining causes.
– It seems to me that the remedy which Senator Pearce proposes would be worse than the disease. What inventor is able to go from stage to stage to fight the question in the courts ? It is quite enough for an inventor to have to appear in one court, because it is usually the man with the longest purse who wins. I have always understood that a patent is granted for an article because it is a novelty. If the examiner reports that an invention is a novelty, and it is not, the common law will prevail. No matter what rights may be conferred by this Bill a man can appeal to a court and it can upset a patent which has been improperly granted on the ground of novelty.
– I should like to ask Senator Drake whether paragraph (b) of this clause is necessary? It has been pointed out to me that it may cause a great deal of trouble, and render the provision which has been granted invalid. Clause 44 reads -
Unless a complete specification is accepted within twelve months from the date of application then save in the case of an appeal having been lodged against the refusal toaccept the application shall lapse.
But paragraph (b) of clause 38 says that if the examiner reports adversely to the application or specification the Commissioner may - direct that the application, instead of dating from the time when it was lodged, shall date from such later specified date, not being later than the date of compliance with the directions for amendment.
It has been pointed out to me that under these provisions an applicant may find himself out of court if he has not completed his specification within the twelve months specified.
– I do not think that there is any real ground for objection, because clause 44 gives twelve months from the date of the application. Paragraph (b) merely pushes the date of examination forward.It still leaves the man twelve months from the date of application.
– Supposing that the applicant has amended the application in August and put in the specification in May, would the period of twelve months count from August? If it does, I am satisfied.
– It helps the applicant by putting forward the date of application. Clause 44 gives twelve months from the date of application. I shouldlike Senator Pearce to withdraw his amendment to allow this clause to stand over for the present. I see his point, but, even if the provision were inserted, I do not think that the Commissioner would take upon himself the responsibility of refusing an application on the ground that the examiner had reported that the invention was not novel.
Amendment, by leave, withdrawn.
Clauses 39 and 40 agreed to.
Clause 41 (Amendment if invention infringes existing patent).
Senator CHARLESTON (South Australia). - I desire to know if Senator Drake can see his way to make this clause refer to clauses 35 and 36 as well as clause 37 ?
– Clause 38 deals with what is to happen in case of an adverse report under clauses 35 and 36, but this clause deals with what is to happen if the Commissioner reports adversely under clause 37.
Clause agreed to.
Clauses 42 and 43 agreed to.
Clause 44 (Lapse of application).
– This clause only gives twelve months within which the application must be completed. I believe that it is considered by those who are interested in patents that the time is too limited, especially when it is necessary to make reference to parties abroad. If Senator Drake has no objection, I think the term should be altered to eighteen months. I have no strong opinion, because I have no complete knowledge on the point, but what I have stated has been represented to me.
– It is clear that a time should be fixed when the application should lapse. We do not want the application to remain for all time. I have received a great many communications from various persons, including one representing the views of the patent agents of Australia ; but I have not received any suggestion to “the effect that the twelve months term should be extended. The honorable senator may’ have represented the views of some interested persons, but it does not seem that he has expressed the opinions of the majority.
Senator PULSFORD (New South Wales). - My statement wasmade on the authority of one who is probably the leading patent agent in Sydney. He says that twelve months is a very short time in which to make references to applicants who live abroad, and suggests that the time should be extended. He also says that it might be at the discretion of. the Commissioner.
– I have received many suggestions, but not one to that effect. I ask the honorable senator not to press the point.
– I will not press it unless it is supported by other honorable senators.
Clause agreed to.
Clauses 45 and 46 agreed to.
Clause 47 -
Reports of examiners shall in no case be published, or be open to public inspection, or be liable to be inspected or produced in any legal proceeding unless the Court or person having power to order inspection or production certifies that such inspection or production is desirable in the interests of justice, and ought to be allowed.
– Should not the report of the examiner be submitted to the inventor himself, so that he may know just what he has to correct? Under the Bill as it stands, he will not be informed where his patent is defective from the point of view of the examiner. If ourdesireis to assistthe inventor, it would be wise to allow the report of the examiner to be seen by him, so that he might discover wherein he had failed, and what were the causes of. the refusal of his application. Underclause 41, if the examiner reports adversely, the applicant is to be informed thereof, and may, within such time as may be prescribed, amend the specification. Thereupon the amended specification would be again reported on by the examiner under clause 37. If we give power under those provisions for the applicant to be informed that his specification is not complete, why should it be provided in clause 47 that an application may be refused without any reasons being assigned?
– I am inclined to think that there is something in the honorable senator’s suggestion. The applicant, or his agent, might be made aware of the grounds upon which the application was refused. It is necessary that that should be done, now that we have amended the Bill by providing that the examiners are to report on the question of novelty.
– We might pass the clause now, and when the Bill is reconsidered Senator Drake might suggest an amendment.
– There seems to me to be nothing in the contention of Senator Charleston. The course of a person who has made an invention is eminently clear. He makes his application, which is sent to the examiner, who reports. That report may be adverse in a variety of ways. The Commissioner, having looked into the subject decides, and he will ask the inventor to alter his specification in a certain direction. If the Commissioner refuses the application, the applicant appeals to the law officer. The law officer then goes into the matter and hears the applicant and the Commissioner. Of course, when that is done, the Commissioner will give the reasons why he has refused the application, and will very likely say that that refusal emanated practically from the examiner, whose report was. adverse. At all events, the Commissioner will certainly have to state the grounds on. which he has refused the application. This clause simply says that, in case matters go into Court, the examiner’s report is not to be published undercertain circumstances. Under other circumstances it may be published. Where is the conflict?I cannot see the slightest difficulty. The whole tiring is as plain as possible. It is perfectly right. We should give the Court power to say - they having seen the report - whether it shall be published. It may be desirable to keep it secret. It may be injurious to the inventor himself to have the information published. Therefore, the power given by this clause is a proper one to exercise.
– It appears to me that clause 41 does conflict with clause 47. If informing the applicant is not divulging the contents of a report I do not know what is.
– There is a difference between informing the applicant and making the information public.
– If more than one person is informed about a matter it is made public. It cannot be a secret if it is the property of a second party.
– I may tell the honorable senator something which gives him information as to why I acted in a certain direction ; but that is not making the information public.
– This clause deals with the procedure during progress. If we say that the final reports of’ examiners shall not be published the difficulty will be met. If an examiner reports adversely to an application, the applicant must be informed of the nature of the objections made.
– That does not make it public.
– I think it does. The point, at any rate, is worthy of the consideration of the Government.
Senator CHARLESTON (South Australia). - When an applicant is informed of the objections made against his patent, he may be able to amend his specification and the thing will go on. He ought to be informed of the reason. Why should not the applicant be told why his application is rejected?
– He will be told under clause 41.
– That clause simply provides that, if the examinier reports adversely, “ the applicant shall be informedthereof and may amend the specification.” He may alter it again, and it may still be thrown out, and he is not to be told why it is thrown out. He is not placed in such a position as to bring up an amended specification which may be accepted. I am asking not that the report should be made known to the public, but that the applicant should be informed in what respect his application does not fulfil the requirements of the Commissioner.
– He can compel that information to be given to him by an application to the court.
– I desire that he should be able to avoid an appeal to the law officer or to the court. I shall be satisfied if Senator Drake believes there is something in ray contention to have the clause passed now. as it is, with the view of inserting something later on to give effect to what I desire.
– I can conceive of cases where an examiner’s report should not be published. He may discover that the applicant is a man who is trying to copy other people’s inventions, that he is a scoundrel or a humbug, and he may say so in his report. I can see that there might be many cases in which it would not be desirable to have the examiner’s reports made public unless by an order of the court.
– I think that perhaps the difficulty may be met and any possible difference between these two clauses overcome by inserting at the beginning of this clause the words “ Except as provided in section 41.” If that is done the effect will be that the applicant will be informed, and the information will necessarily be sufficient to enable him to amend his specification, while the principle will still be preserved that, the report of the examiner should not be made public. I move -
That the words ‘ ‘ Except as provided in section 41 “ be inserted before the word “Reports,” line 1.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 48 agreed to.
Clause 49 -
After an application for a patent has been made the invention may be used and published without prejudice to the validity of any patent granted on the application.
– We have in this Bill three different words used to mean the same thing. According to this Bill an application may be “ left,” “ lodged,” and under this clause an application may be “made.” There should be some uniformity. I move -
That the word “made,” line 2, be omitted, witha view to insert in lieu thereof the word “lodged.”
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 50 to 53 agreed to.
Clause 54 (Appeal).
-I presume that Senator Drake will consent to the postponement of this and the next clause, as they deal with the Supreme Court We have postponed prior clauses dealing with the Supreme Court.
– Some time or other we shall have to discuss this question. We postponed clause 4, the interpretation clause, which is very often postponed, and I think the ground upon which it was postponed was that the term “ Supreme Court” was used. I suppose the honorable senator desires to raise the question of whether it should be the Supreme Court or the High Court.
– That is one question in connexion with it.
– As clause 4 stands at present the” Supreme Court “ means the Supreme Court of the State in which the Patents-office is situated or a Judge thereof. I can quite understand that it might be advisable from many points of view to substitute the High Court for the Supreme Court. But, under the Judiciary Bill, as amended, the High Court will have enough work to do, and I think now it would be better to leave clause 4 as it at present stands. The subject is one which, has been under my notice before, and though my inclination was rather in the direction of having this work done by the High Court, I think that in view of the way in which the Judiciary Bill has been passed it is better that it should be left to the Supreme Court.
– There will bean appeal to the High Court.
– Yes ; but the matter will go to the Supreme Court of the State first.
Senator PULSFORD (New South Wales). - We have a very small attendance of honorable senators, and this is a very important matter. If the clause were postponed it would probably be dealt with to-morrow, when we might expect a better attendance.
Clause agreed to.
Clause 55 agreed to.
Clause 56 (Prior patent more than 100 years old).
– I think that last year this term was reduced in Great Britain to 50 years. I do not know why it should be 100 years. I think we might very well make the period 50 years.
– I find that the law which came into force in Great Britain on the 1st January, 1903, made the period 50 years. If 50 years is considered a sufficiently long period in Great Britain, there is no reason why we should not adopt that period here.
– I do not see why there should be any time fixed at all. To my mind, it does not matter whether it is 50 years, 100 years, or 1 year. If the invention is not an original invention I do not see why we should not all have the advantage of it. There is no novelty in a thing which has been known for 100 years, and 1 think the term should be struck out.
– If a process has been out of use for 100 years, which means three generations now, it might be looked upon as having been practically forgotten.
– It would not be novel.
– It would be novel within the meaning of this Bill if it had not been used for 50 years. If the Committee prefer to adhere to the period of 100 years, I have no objection, but I think that if a man rakes up a process which has fallen entirely into disuse for 50 years, he might be given patent rights.
Amendment (by Senator Drake) agreed to -
That the words “one hundred,” twice occurring, be omitted, with a view to insert in lieu thereof the word “fifty.”
Clause, as amended, agreed to.
Clause 57 -
Where the complete specification contains two or more claims in respect of the invention, the invalidity of any one claim shall not affect the validity of any other claim, or the validity of the patent, so far as it relates to any valid claim.
– It would appear from information placed at my disposal that this is a very dangerous clause. It is one which may give a great deal of trouble and work much injustice. A man completes an invention, and he applies for protection. He inserts in his specification that which he knows is really the discovery of others. He “ tries it on” so to speak. He says - “ I will put it in, and I shall have protection unless some one fights me, and contends that it is not novel.” The real inventor of what the applicant has made use of will know that he would have to go to the court to prove that the specification is not novel, and to avoid that expense, he may have to pay for the use of what is really his own discovery. But if the court be appealed to then the whole specification may be amended. The court may say that some of the items are admittedly not new, and then the defendant will not really lose much if he can show that one item in his specification is novel. The decision will be in his favour on that one item, and in all probability costs will be given as against the plaintiff. In my opinion the clause would give encouragement to a person to pirate a patent which belonged to another, and the real inventor might, perhaps, prefer to be. penalized and pay a royalty to the patentee rather than go to the expense of an appeal to the court.
– I do not think we ought to assume dishonesty on the part of an applicant. People who make applications for patents are not likely to be worse than ordinary mortals ; and if we assume that they are honest, then there is no ground for the objection raised by Senator Charleston. A man making an application is not supposed to have all knowledge at his command ; and I do not see why his application should be vitiated because one of his claims may be bad. So long as there is sufficient to support one claim the a cation ought to be granted.
Clause agreed to.
Clauses 58 and 59 agreed to.
Clause 60 (Term of patent).
– I do not think we ought to rush through these clauses too quickly. We are now dealing with important public matters, and this clause contains very debatable provisions.
Clause agreed to.
Clauses 61 to 78 agreed to.
Clause 79 -
Every amendment of a specification shall be advertised in the prescribed manner.
– What extent of advertising is to be necessary ?
– The advertising will be prescribed by regulation. It is a matter which can hardly be dealt with in the Bill, but, following the ordinary rules, I suppose the amendment will be advertised in a newspaper at a place where the Patentsoffice is established, and also in the locality from which the applicant comes.
– The very essence of this clause is the protection of the public, and all such amendments should be properly advertised. In many States Acts, under which advertising is necessary, it is provided that advertisements shall appear in one or more public journals a certain number of times. If the advertisement is to appear simply in the Government Gazette, it might as well not be published at all.
– If the advertisements had to appear only in the Government Gazette, it would be very easy to make provision in the Bill. Different applications will require different kinds of advertising, and the only satisfactory way of dealing with the matter is by regulation. I presume that the Commissioner and the Minister will see that the regulations are sufficient to provide for proper publicity.
Senator Sir WILLIAM ZEAL (Victoria). - If it happened - which I do not suppose is likely for one moment - that a dishonest man were in the position of Minister, and a friend were the applicant, it might be decided not to advertise at all, or, at any rate, to advertise only in the Government Gazette. Some reasonable method of advertising should be laid down in the Bill itself, because I take it the regulations will bind only the particular Ministry.
– The advertising will not be at the will of the Minister, but in accordance with regulations which will lay down a general rule for the guidance of the Minister.
– I - Is there any objection to providing that applications shall be advertised in two of the principal journals in a State ?
– That would lay down a cast-iron rule which would have to be followed in all cases, whether they were important or otherwise.
– Buta minimum might be provided.
– That would not work in some of the States. For instance, in Western Australia, the gold-fields newspapers are not read on the coast, and the coastal newspapers are notread on the goldfields.
– W - Will the regulations hold good for any length of time?
– The regulations will hold good until they are rescinded.
– Regulations may easily be rescinded by an Order in Council.
– Only by the means laid down in the Act.
– I merely call the Minister’s attention to the point.
Clause agreed to.
– Under this clause I think it is necessary that there should be some definite provision as to advertising. People who have been using a patent might have something to say on an application for an extension, and those who live a long way from the court might have no knowledge of the intended proceedings.
– The petition has to be presented six months before the expiration of the term.
– I move -
That the words “Supreme Court,” line 3, be omitted, with a view to insert in lieu thereof the word “Commissioner.”
The Commissioner grants the patent, and surely it is he who should decide as to any extension.
– The Commissioner might recommend to the court.
-The Commissioner has more knowledge of the Patents law and its administration than the Supreme Court can have, and I do not see why a patentee should be compelled to go to the higher tribunal. Why should he go from an expert court to a non-expert court ?
– Because he is asking for a monopoly for a certain term.
– And who is better able to decide the application than the Commissioner, who knows all the particulars, and is the chief instrument for granting patents ?
– The questions to be decided by the Supreme Court are entirely different from those which originally come before the Commissioner. All questions relating to novelty, prior registration, and so forth are decided by the Commissioner, who has to satisfy himself that the subject is one for letters patent. A patent is granted by the Commissioner for fourteen years ; and all those questions are then settled, unless there be a petition in opposition. But at the expiration of fourteen years a man comes to ask for an extension of his patent. Different grounds have to be examined before itcan be ascertained whether it is right in the interests of the community that he should get an extension of the patent. The questions which have to be taken into consideration then are the nature and merit of the invention in relation to the public, the profits made by the patentee, and all the circumstances of the case. It is all in the hands of the Court. If it considers that he has not been sufficiently remunerated during the period of fourteen years, it may grant an extension of the patent.
– Does the honorable and learned gentleman think that the Court will be more fit to determine these questions than the Commissioner?
– Most assuredly I do. The Commissioner is a specialist to deal with the question whether patent rights ought to be granted, and if he is of that opinion, the law says that he may grant them for fourteen years. If at the end of that period the patentee asks for an extension of seven or fourteen years, the Court has to decide these questions on evidence.I think that the highest tribunal which is recognised in the Bill should be invoked before patent rights are extended for any long period.
– There are additional reasons to those mentioned by Senator Drake why the Supreme Court should be left to deal with this matter. In hearing a petition for the renewal of a patent, the Court should take into consideration the rights of the original patentee, or of his heirs and assigns, if it has been sold. In some cases the Court hasordered that the petitioner should give further consideration to the inventor. Ittakes every phase of the invention into account. It investigates whether the original patentee has received sufficient remuneration, quite apart from the person who may have purchased the patent from him and may be working it. Where it is perfectly clear that the purchaser may have had very good returns, and the original patentee very poor returns, the Court, on petition by the latter, has been known to put in special clauses requiring the former to give further consideration to him. It is quite clear that no Commissioner could go into all these questions, and settle the rights of the several petitioners. Therefore, it is absolutely essentia] that the Supreme Court should be allowed to deal with the renewal of patents.
– I should like to ask Senator Drake whether anything has been done about the definition of the term “Supreme Court.” In the first sub-clause of this clause it means -
The Supreme Court of the State in which the Patents-office is situated.
– The interpretation clause has been postponed.
– If we turn to clause 82 we find this provision -
Revocationof a patent may be obtained by petition to the Supreme Court of a State.
That is what I should like to see provided throughout the Bill. I do not desire all these matters to be referred to the Supreme Court of the State in which the Patentsoffice is situated, which I suppose will be the Supreme Court of New South Wales eventually. I take it that if a man in Tasmania or Western Australia wishes to obtain an extension of a patent, or desires to get anything which involves a reference to a Supreme Court, he ought to be allowed to apply to the Supreme Court of his State in its Federal jurisdiction.
– I do not think that. It must be remembered that we are going to have a central Patents-office.
– I object to this centralizing system being carried too far, because it means expense and delay to taxpayers. What is the use of conferring Federal jurisdiction on the Supreme Court of a State if it cannot consider a simple question like that of the extension of a patent?
– It is not a simple matter. The Patents law is the most difficult law in the world to interpret.
– It is not a simple matter in comparison with many questions on which neighbours go to law ; but it is a simple matter in comparison with some of the cases which the Supreme Court of a State, in its Federal jurisdiction, may have to consider. I should like Senator Pearce to give me an opportunity to move the insertion of the words “ of a State “ after the term “ Supreme Court.”
Amendment, by leave, withdrawn.
Amendment (by Senator Dobson) proposed -
That the words “ of a State “ be inserted after the words “Supreme Court,” line 3.
– I think I shall be able to show Senator Dobson that there are strong objections to his amendment. He is looking at the matter entirely from the point of view of the patentee, who desires a renewal or an extension of his patent. But, how about all those persons who may wish to oppose his application ? Are they to be dragged to the State in which he is located ? By this Bill we establish a central Patentsoffice, and in the State where it is situated we say that such an application shall be made. The object of the proceeding in the Court is to enable any person to test the right of the patentee to get a renewal or an extension. If Senator Dobson will refer to the latter part of the clause, he will see the grounds on which alone a patent may be extended, and evidence has to be taken on those points. It might be most inconvenient to those who desired to call evidence against an extension, if they had to resort to , the State which had been chosen by the patentee.
– Why is it provided in clause82 that a petition for the revocation of a patent can be heard before the Supreme Court of a State ?
– I do not know, but I shall ascertain presently.
Amendment, by leave, withdrawn.
Clause agreed to.
Clause 81 agreed to.
– Referencehas already been made to sub-clause (2) of this clause. I am informed that it is necessary because it is part of the equity jurisdiction of the Supreme Court of a State to revoke patent rights.
– There is no difference between revoking and extending.
-In this Bill we confer the right to apply for an extension of a patent, and we can state the Court to which the application must be made; but this sub-clause merely refers to the existing equity jurisdiction of the Supreme Court of a State.
– The rights of the public would be concerned more conclusively in revoking a patent than in simply extending one.
– It would be against the interests of the individual.
– It would be against the the interests of the individual, but it might be very much in favour of the interests of the public to revoke the patent. If the revocation of a patent can be obtained by going to the Supreme Court of a State, why cannot an extension of a patent be obtained in the same way ? Considering that the control of patents is transferred to the Commonwealth by the Bill, I should have thought that the second sub-clause referred to the Supreme Court of a State in its Federal jurisdiction. I think that we shall have to consider this question more fully on some other occasion.
– The petition is simply to take the place of the proceeding by way of scire facias. A person who desires to get a patent revoked has to go to theSupreme Court of a State in its equity jurisdiction.
– Is it not quite as important as extending a patent ?
– It may be as important, but it is a different proceeding. The extension of a patent affects the public very greatly, but the revocation of a patent affects only the interests of an individual.
– This is said to be a copy of the corresponding provision in the Imperial Act. It has been pronounced by some experts as very absurd in some respects, and it has been suggested to me that the second sub-clause should be amended by the addition of the words “ bearing the date of the patent so revoked.” Suppose that a man came forward and proved that he and not the holder of the patent rights was the actual inventor of the article ; then the patent could be revoked and granted to the petitioner. But if he applied for the patent merely from the time it was revoked, then it would not be in accordance with the Bill, which says it must be granted for an article which is new and has not previously been reported upon. Therefore, I should like to have the opinion of honorable senators on the point as to whether it would not be wise to insert the words “ bearing the date of the patent so revoked.” We want to have placed upon the document that revokes the patent the date when the patent was originally granted, so that any one picking up the document would know that the patent had been revoked, and how far he could go in making an application for renewal.
– I believe it has been said that this is the most absurd provision that was ever proposed in connexion with a Patents law. But it is copied from the British Act, and I should think the weight of evidence is rather against those who describe it as absurd. Why take the ipse dixit of a gentleman, even though he be the president of an association, as against the authority of a British Act that has not created any revolution nor done any harm ? The 9th sub-clause provides as to the date from which the new patent shall run. It is quite clear. A man may apply for a patent bearing the date of the patent which has been revoked.
Senator DOBSON (Tasmania). - As we define the term “ Supreme Court “ to mean one thing, we ought, in sub-clause 10, to say that the appeal shall lie from the decision of the Supreme Court of the State where the revocation took place.
– Is it necessary to repeat it? The definition makes it clear. The Supreme Court is clearly the Court referred to in the former part of the clause.
Senator CHARLESTON (South Australia). - We ought to strike out of subclause 9 the words “ in accordance with the provisions of this Act.” Then the applicant would be ableto apply for the patent on the ground that it had been revoked, and because he had shown that he was entitled to it. I am afraid that if we leave in the words it may be contended that the person who applies has not had the patent granted to him “ in accordance with the provisions of this Act,” because it was not declared that the invention had not been used before.
– I do not think that any one would argue what Senator Charleston has suggested, because it would render the clause entirely nugatory. The power is clearly given to the Commissioner to grant a patent.
– Are the words to which I have objected necessary ? The Bill itself provides for certain things, and it may be impossible to comply with the conditions here laid down.
– I think it is better to leave the clause as it is. We are following a very good precedent in adopting the British Act. If we make a variation from it we shall lose the advantage of any cases which have been decided under that Act.
Clause agreed to.
Every patent shall be granted subject to the following conditions : -
– This clause is very important, and cannot be said to reflect much lustre upon the author of the Bill. Last session we passed a Customs Act under which the importation of certain goods into Australia was prohibited. The prohibition of imports was confined to such goods as any pirated work, false money, anything blasphemous, indecent, or obscene, goods manufactured or produced by prison labour, exhausted tea, oleomargerine unless branded as prescribed, all goods which carried a false suggestion of any warranty or guarantee, and so on. So that nothing is prohibited to be imported except certain goods which were considered to be objectionable or deleterious for various reasons. But theclausenow before us asks us to prohibit the importation of goods which may be very desirable, and in industries absolutely necessary. The clause is simply monstrous, apart from the fact that it conflicts with the Customs Act. If goods can be imported under that Act I do not see how the authorities could take upon themselves to reject an entry of goods described under clause. 83 of this Bill.
– Any one else but the patentee could import it.
– The clause says - “ import … or cause to be imported.” It is intended to stop the importation of any invention four years after a patent has been taken out. There are some inventions for which the demand in Australia would be so small that it would be almost impossible to produce them profitably here. For instance, there are linotypes. The number of those machines which can be used in Australia is so limited that it would not be worth while to put up an expensive plant for the manufacture of them. But linotypes are considered to be very necessary. They have effected a great revolution in printing, giving us a very much larger amount of reading matter in our newspapers. In many respects they have been a distinct advantage to Australia. But under this clause we should be unable to take advantage of such an invention after so many years had lapsed, because the manufacture of it would be unprofitable in Australia owing to the small demand. I suppose a way would be found to make the clause workable, though it seems to me to be in conflict with the Tariff, inasmuch as a certain duty is imposed upon certain goods, or it is specifically provided that they shall be imported free. The importation of them cannot be stopped under the Tariff. But it is not worth while to discuss the clause from that point of view. I am discussing it on its merits. On its merits it is a very objectionable clause, even from the point of view of those who, like Senator Playford, are moderate protectionists. I cannot imagine that even extreme protectionists would ask us to go to the length of prohibiting the importation of an article.
– Would Senator Pulsford grant patent rights to a man without a condition of this kind, so that he would not allow us to make the articles ourselves, and would not import them himself?
– Clause 85 provides for such cases.
– Compulsory licenses are another way of insuring that the patentee having secured a patent shall not sit down and derive profit from machines that are manufactured outside the Commonwealth. But clause S3 is a very good provision to have first. If clause 83 does not work satisfactorily, clause 85 comes in. It provides that if a man secures patent rights in Australia he shall not use them to prevent any one else making an article or refuse to import the article himself. We should have a right to insist that patentees shall manufacture in Australia. Otherwise the patentee gets all the advantage, and the Commonwealth gets none.
– The community get their advantage through using the machine.
– The only advantage the public gets is in being made to pay high prices for the protected articles. I think this is a desirable provision to enact. We have in view foreign inventors, who take out their patents in foreign countries, and who would, no doubt, be glad to hold the market here by getting patent rights in Australia, while they supplied our market with articles produced abroad. We say that it is better for the community that these articles should be madehere, and if we give patent rights which enable the holders of them to secure a monopoly which gives them profit, they should manufacture them here, and should not import them from abroad.
– I cannot support clauses 83 and 84, but I am prepared to support clause 85. I suggest that Senator Pulsford might move the omission of paragraphs (a) and (b) of clause 83, allowing the first words of the clause to stand to cover clause 85. The proposal for a compulsory licence being issued is a perfectly reasonable one, but it is absurd to say that within five years of a patent being granted the manufacture of the article must be commenced in Australia, and must be continuously carried on. Suppose that is applied to a case of articles for which there is not a sufficient demand. There would not be a sufficient demand, for instance, for linotypes in Australia to keep one factory going, and when the complicated machinery ^required to make them is taken into account, it will be seen that if they were manufactured in Australia the price would be immensely above present prices. In the case of reapers and binders, to which I referred in connexion with another clause, the compulsory licence proposed would act well. The farmers of Victoria and South Australia could petition the Attorney-General to compel the firm holding the patent rights to issue compulsory licences, and then the Braybrook Company or any other manufacturing company in Australia could manufacture those machines. It must be remembered that the royalty would not be at the sweet will of the patentee, but would be fixed by the Court. It would not be a reasonable thing to compel the manufacturers of these implements to establish works in Australia. They have a big factory in Canada, and by specializing this manufacture they can produce these implements very cheaply. Every honorable senator who has any acquaintance with factories, will realize that they could not make them so cheaply in half-a-dozen small factories scattered over different parts of the world. The cost of making them in Australia . would probably be much greater than the cost of making them in Canada with the freight to Australia added. If it could be Shown that by some combination, or by the operation of their patent monopoly, the manufacturers charged a price which was found to be injurious to our producers, we should have power .to step in and compel them /to give a licence to our- manufacturers to manufacture these implements ; but -we should be satisfied with that power. I have referred to two machines specially, but many more could be enumerated if we had time to look into the matter. If this clause is passed the Bill might be called “ a Bill to fetter the Australian manufacturer in his competition with outside manufacturers.” Honorable senators will recognise the complicated patented machinery which is used in our woollen mills. I suppose that one factory in England would turn out annually a sufficient quantity of that machinery to equip three times the number of woollen mills we have in Australia. And yet, because woollen mills at Geelong or Ballarat require a few machines to enable them to increase their output, it is proposed, under this clause, that they should not be able to get those machines unless the patentee commences their manufacture in Australia.. The proposal is too ridiculous, and it is a strange proposal to be submitted by a Government that professes to assist local manufacturers to compete with those of other countries. We should give outmanufacturers absolute freedom to secure the most up-to-date machinery. Our factories will at the outset be small, and there will not be a sufficient demand for patented machinery to warrant its manufacture in the Commonwealth. If there is a sufficient demand for any particular machine, the compulsory licence provision will do all that is necessary. Without the compulsory licence provision there might be some reason in the other proposal ; but with that provision there can be no -possible argument for this prohibition clause. Take the mining industry again. We know that the treatment of gold ores has been revolutionized within the ‘last few years. We know that if in the mining development of Western Australia we had been compelled to look to the Commonwealth only for the machinery we required, our gold output would have been seriously lessened. The mine-owners , in Western Australia, owing to the fact that we have had low duties upon machinery, and that we have not “had this prohibition provision in our Patents law, have been enabled to go into every country in the world to secure the most up-to-date machinery. There is an ore found at Kalgoorlie known as tel.luride which requires special treatment. It had not previously been found on Australian gold-fields, but it was known in America, where they had special machinery for treating it. Under this Bill the inventors of this machinery would have to commence the manufacture of it in Australia before those interested in mining could secure the use of it. I hope the Committee will not contemplate the passing of ti clause which would fetter manufacturers by preventing them from securing the benefit of patented machinery, and which would also fetter the agricultural and producing industries generally. Weknow that the latest inventions for carrying on the agricultural industry have not come from Australia, but from America. They have revolutionized the industry, and yet it is here proposed that their manufacture shall be commenced in Australia before our producers can secure the benefit of their use. As has already been pointed out, the reaper and binder was patented in. America, and subsequently in Australia. As a consequence, the inventor and manufacturer was enabled to secure a monopoly of the Australian market for the implement. If we had had this compulsory licence provision in operation we could have broken down that monopoly ; but no one can argue that clause 83 is necessary to enable ais to break down a monopoly of that kind. We have that power under clauses 85 and 86, and I guarantee that if our farmers do not take advantage of those provisions our manufacturers will, if there is at any time a disposition shown to unduly raise the price of patented machinery.
– I am glad to hear that Senator Pearce is prepared to support clause 85 ; but it appears to me that in his objection to clause 83 the honorable senator is inconsistent with the attitude he took up with respect to patents taken out in foreign countries. He would not have shown the same inconsistency if he had been successful in carrying the amendment he proposed, but the honorable senator shows very great inconsistency now. Senator Pearce objected to a patent being issued here for any invention which had been patented in any foreign country. What does this clause provide t It provides that where a patent is issued in Australia it shall be upon certain conditions ; and if those conditions are not fulfilled the result will be the same as if the inventor had not obtained the patent.
– In clause 85 there is a better parallel for what I said.
– No ; the honorable senator will see that under clause 83 the patent is to be issued subject to certain conditions. One is that the article patented shall be manufactured in the Commonwealth within five years, and the other is that the patentee shall not, after the expiration of four years, import the article.
If an inventor obtains patents rights and does not comply with the conditions of clause 83, his patent will lapse, and he will be in the position in which Senator Pearce desired to place him by his previous amendment.
– No ; we do not revoke the patent ; we only prevent the patentee importing the patented article.
– No; the patent is subject to the conditions imposed in this clause ; and if they are not complied with the patent lapses. The effect will be the same as that which Senator Pearce tried to bring about by the amendment he proposed.
– From what part of the clause does the honorable and learned senator get that 1
– From the first two lines, in which it is stated that “ every patent shall be granted subject to the following conditions.”
– Then paragraph (6) gives the penalty.
– No ; paragraphs (a) and (b) state the conditions; and if they are not complied with the patent lapses. Within five years the manufacture of the patented article must be commenced .in Australia; and after four years from the granting of the patent the patented article must not b§ imported. And if we take the instance of the woollen mills requiring patent machinery, the only time during which the proprietors of the woollen mills would be at a disadvantage would be between those two periods.
– Under clause 84 this provision can only be put into force by the Attorney-General.
– If the honorable senator means to say that there is a chance that the provision will not be put into operation, that is another point altogether. I am assuming that it will, and am dealing with the Bill as it stands. If we take the case of woollen mill machinery, the inventor gets patent rights here, and for four years he can import the machinery. That is what Senator Pearce desires to allow him to do always.
– I desired that our manufacturers should be allowed to make the machinery.
– Senator Pearce has suggested that this is intricate machinery which could not be manufactured here. If that is so it may be imported for four years ; and if at the end of another year it is not manufactured here, the patent lapses, and the position is then the same as that which Senator Pearce desired to bring about by his amendment, because there will then be no patent for that particular article.
– Could the article then be imported t
– Most assuredly it could, if there were no patent. It will be seen that the position comes very nearly to that for which Senator Pearce was arguing. Such a patent having been granted in a foreign country, there would then be no one with patent rights in Australia.
– I thought the Minister for Defence was afraid of a breach of the International Patents Law ?
– I said it would be a great disadvantage, on that ground, to accept the amendment of Senator Pearce. I think the policy of the clause is perfectly right. When we give patent rights to a man, we should see that those patent rights have been obtained with the intention of manufacturing the patented article in Australia.
– How can effect be given to the words “continuously carry on”?
– There will probably be some people interested in upsetting the patent. If it is not worth while for a man to manufacture a patented article in Australia, then under the Bill he cannot retain his patent rights.
– But the clause does not stop there. The Bill does not say “ unless you establish a factory within five years your patent lapses,” but it says in effect “ unless you establish a factory and continuously carry on the manufacture of the invention” certain events follow.
– -If a patentee ceases to manufacture in Australia, then for the purposes of this clause it is as though he had never begun to manufacture - he is to establish a factory and carry it on. And here we come to the contention of Senator Pearce - that if it is not worth while for a man to establish a factory in Australia, he should not be granted patent rights to enable him to import the article from somewhere else and charge a higher price.
– He has four years in which to do that.
– A patentee may im. port for four years, and the object of theprovision is to give him plenty of time in which to establish his works. To take the familiar illustration of the reaper and binder, let us suppose that this implement is patented in America, and that the inventor claims a patent here for the same article. For fouryears he may import the reapers and binders, but after that period they must be manufactured here. If the patentee does not manufacture the articles here, then he isrefused the right to a monopoly of his invention.
– The Minister for Defence says that this is not a protectiveclause, so far as the public is concerned.
– If there had been such a clause in operation, how different the circumstances would have been in regard to reapers and binders. These machineswere patented here for the express purpose of holding the market, and causing them to be imported at prices fixed by the manufacturers and importers. Under a clause of” this kind, the patentee would have been bound to establish a factory in Australia. To put it shortly - we cannot have a man who has an article patented abroad taking out patent rights here, not for the purpose of manufacturing in Australia, but for the purpose of holding the market.
– Then the object is toprotect the public and not the inventor.
– Protecting the public ! A fine way of doing that !
– The public will be protected .from that which was suffered in connexion with the reapers and bindersthat is, from having to pay monopolyprices.
– I wish to know whether this clause has been invented, or whether it is taken from an Act in operation elsewhere.
– It is taken from the Canadian Act. In the Dominion people used to take out patents, and supply the demand from the United States.
– It is a clause that will” be somewhat difficult to administer or construe. I understand that what is intended is, that where an Australian inventor wishes to have protection, he must comply with certain conditions. One of the conditions is that within the period of five years he must set up a factory for the pur-pose of manufacturing the patented article-.
– He ‘has to commence at a certain date.
– And in order to facilitate him, he is allowed to import for four years the article which ultimately he has to manufacture himself. The intention . of the clause is very good, because it is to give an inventor time in which to get the necessary skilled labour and appliances for producing the patented article. Beyond the period fixed, if no factory is set up, .the benefits of the patent are lost. But how- is the clause to be carried out ? An inventor before the five years have elapsed sets up his factory ; but it proves of no good, and he keeps only a couple of men there. At what moment do his protective rights cease ? The clause provides that he must set up a factory and “ continuously carry on “ in Australia the manufacture of the patented article. What is the meaning of “ continuously carry on “ ?
– I suppose a court would construe the meaning.
– There is a greater difficulty - what is a “ reasonable price “ ?
– The clause, provides that the patented article shall be manufactured “ in such a manner “ that any person desiring to use it may obtain it “ at a reasonable price.” What sort of a “manner “ is that ? And what is “ a reasonable price “1 If I am told that a similar provision has worked satisfactorily in Canada, that will alter ray views ; but if it be an invented clause, it seems to me to be very loosely turned, and one that would prove hard to administer. A man who sets up his factory under this clause may make a couple of score or a couple of hundred machines, as the case may be, and then cease operations. For how long -a period has that cessation to exist before his patent rights lapse ? Can it be said that he does not “ continuously carry on “ his factory if he keeps it open, but manufactures no more machines ? If the patent rights lapse, then, of course, it will be possible for any person to make the article, or import it from abroad. The only way in which this clause could be tested would be in the case of a person who, having set up his factory, and having turned out a few of the articles, was met by a purchaser who said he wanted to buy one. In such a case, the patentee might say, ‘” I cannot give you one of the articles at ‘ a reasonable price.’ “ The intending purchaser would then obtain -the machine or article from outside Australia, and the question would be tested on action being taken by the patentee for infringement, and the court would have to construe the extraordinary words which I have quoted. I do not think any court would venture to interpret those words. As I say, if this clause has been taken from the Canadian Act, that will alter the situation, because I suppose there must be legal decisions.
– I do npt think that any one will accuse me of opposing these two clauses from a protectionist point of view. T believe I am as much a protectionist as anybody, and I believe in a manufacturer being protected by a duty. But honorable senators always seem to talk about “the public” and the “ manufacturer.” This Bill is for the purpose of protecting the inventor and not the manufacturer, and it is our duty to protect the public as well as the inventor ; and clauses 83 and 84 will protect neither the inventor nor the public. I can give an illustration to show how these provisions cannot possibly protect the inventor. Suppose I were an engineer, and discovered something very important in connexion with the shafting of ocean steamers. Suppose, further, that I went to some of the shipping companies, or a combination of them, and exhibited my patent. . What would be said to me? Would I not be told that this invention could be imported into Australia for only four years, and that in five years I must manufacture here?- It might be impossible for me, as an inventor, to manufacture. the article in Australia within five years or even within ten years. What would be the result? The large shipping company, or combination of shipping companies, would say to me - “We do not care about your patent rights, which will run out in five years, if the article is not manufactured here ; and we can then manufacture it ourselves, or get somebody to do it for us.” Where is the protection to the inventor? The same -remarks might be made as to any other appliance invented by some clever man. It may be impossible for him to manufacture in Australia, and if he goes to a manufacturer he is told by the latter - “Why should I assist you, when in another five years your rights will expire, and I can manufacture on my own account ? “ Cannot honorable senators see that we are defeating the very object of the measure, which is the protection of the inventor ? That is one of the reasons I oppose both clause 83 and clause 84. The other reason is that clauses 85 and 86 give a protection to the public. I wish to protect the inventor and the public. Clauses 83 and 84 do not protect the inventor, but place a very extensive embargo on him. They put difficulties in the way of inventors, who generally are poor men. Very often they impoverish themselves before they perfect their inventions, and then they are placed at the mercy of a manufacturer or a combine. Nor do the clauses protect the public to any extent. Because clause 85 protects the public I shall vote against the two clauses which do not protect the inventor.
– I have not the Canadian statute, and therefore I cannot say that the clause is an exact copy of the provision in that Act. A memorandum of the Board of Trade states that this provision practically exists in the laws of Canada and Newfoundland, and to a certain extent in the law of South Australia, where, however, it has not been put into operation.
– Not in the law of the United States.
– Certainly not. The reason why it was enacted in Canada was because a practice had sprung up of American manufacturers taking out patent rights for their inventions in Canada, and then supplying the Canadian market from their side of the border. This practice was not considered satisfactory, and therefore Canada, which was followed by Newfoundland, I think, enacted this provision. It is stated in the memorandum of the Board of Trade, at page 104- -
In Canada patents become null and void at the end of two years from the date thereof unless the patentee or his legal representatives or his assignee within that time, or any authorized extension thereof, commence and after such commencement continuously carry on in Canada the construction or manufacture of the patented invention in such a manner that any person desiring to use it may obtain it. or cause it to be made for him at a reasonable price at some manufactory or establishment for making or constructing it in Canada. This period of two years maybe extended at any time not more than three months before its expiration by the Commissioner of Patents on its being proved to his satisfaction that the patentee was, for reasons beyond his control, prevented from complying with the above condition. Any question as to whether a patent has become void under these provisions may be adjudicated upon by the Exchequer Court of Canada upon information in the name of the Attorney-General of Canada, or at the suit of any person interested. Any patent in Newfound land which has not been brought into operation within two years from the date thereof becomes void at the end of that period. Every patent in . South Australia is liable to be revoked by the Governor upon the application of any person after the expiration of three years from the granting thereof if it is made to appear to the Governor that neither the patentee nor his. assignee or licensee has before the time of such application used the patented invention to a reasonable extent for the public benefit. But the Governor may, in his absolute discretion, refuse: any such application upon such terms and conditions as he may see fit. No patent has yet been forfeited under the provisions, and it is believed that no application has yet been modes under them.
The object of the clause is to prevent persons who have taken out patent rights in foreign countries from getting letters patent here - not for the purpose of establishing a manufactory and making the articles here for the people of Australia, but simply for the purpose of holding the market and importing the articles. I should have thought that this very reasonable provision would have commended itself to a great number of honorable senators.
– This very drastic clause would have some very extraordinary results. If a person invented and patented any machineryin Australia, no matter what it might be, it could not be imported if it was of such a nature that it could not be made here. There are many kinds of machinery which it would be impossible and absurd for an Australian inventor to try to manufacture here. Kalgoorlie is the only place in Australia where telluride is found. A special class of intricate and complicated machinery is required for the extraction of that metal. If an Australian inventor discovered a labour-saving appliance to extract the gold from the telluride he would be placed in an extraordinary position. He would patent his invention in Australia, and it would be impossible for him to set up a factory to make the machinery and supply it to perhaps a dozen mines in Australia, or to sell his patent to other people, and have the machinery imported. In the case of any new industry, for instance the sugar beet industry, under the clause it might be absolutely impossible to make use of any invention which had been discovered by an Australian inventor.
– I think that the clause is aimed at foreign inventors who are using; the Australian markets.
– Paragraph (b) says -
The patentee shall not after four years from the date of the patent import the invention or cause it to be imported into Australia.
It does not say that any one else shall not import it into Australia.
– His patent rights will protect him against anybody else.
– If a person obtained letters patent in Australia it would be impossible for the invention to to be manufactured and imported into Australia.
– For four years from the date of the patent the patentee may get the article from abroad, but within five years he must have his own factory established.
– Suppose that a man invented a gold-saving appliance with regard to telluride, it would mean that he would patent the invention here, and for all time deprive Australia of the use of that valuable discovery.
– No. For four years he could supply the invention from abroad. If he did not get his factory established in another year his patent would lapse, and then the invention could be imported freely by any one.
– There is absolutely nothing in the Bill to show that the patent would lapse.
– It is only granted subject to that condition.
– If a person invented a certain class of machinery which he could not manufacture in Australia, why should the patent be allowed to lapse at the end of four years because he was not in a position to manufacture the invention ?
– Why should we give him an exclusive right to bring in the article from abroad and charge his own price ?
– At the present time many chemists in Kalgoorlie are experimenting in regard to gold extraction. Suppose that a chemist made an important discovery which would entail the making of complicated machinery. He would patent his invention in. Australia, and for four years he could have it manufactured abroad and imported, but at the end of that time the patent would lapse. Is not that most unfair? What is the object of the Bill but to protect the patentee of a valuable invention? This clause must be detrimental to the inventor unless his invention be of such a simple nature that he can start to manufacture it here. The intention of the Bill is to protect the rights of the patentee, to see that other persons shall not benefit by his ingenuity.
– The public benefit is the reason for giving the inventor that right.
– How can Senator Drake prove to me, or any one else, that this clause will be beneficial to the patentee ? In the Customs Tariff Act we provided that patented machinery which could not be madehere could come in free of duty, but now we are asked to enact that if patented machinery cannot be made here the patentee shall lose his rights.
– No ; he gets a benefit on the condition that he shall do something to the advantage of the public.
– He gets a benefit on the condition that he or some other person shall start a factory and manufacture the invention here. . Is not the clause in direct contradiction with the exemption of patented machinery in the Customs Tariff Act? I hope that the Committee will strike out the clause, because Senator Drake has been unable to prove how it could possibly benefit the inventor, and many cases have been cited in which it would deprive the inventor of the opportunity of obtaining the full benefit of his invention.
– The practical effect of the clause will be that in the case of most inventions the life of the patent will be limited to four years. Any one who hasstudied the question knows that it is almost impossible to get an invention economically made in Australia.
– And if it could be made, it would be made at increased cost to the consumer.
– That is not necessarily the case,I am interested in an Australian patent. We understand that the article could be constructed in Europe or America for about 30s. We called for tenders by advertisement for its construction. No one cared to tender. Eventually after a lot of trouble we dug up people who were prepared to make our article for us, but at a very enhanced price. We were, in fact, obliged to go to Europe and America to get it made at a price that would enable it to be sold under the most economical circumstances. We found that if we were to sell it at the price at which it should be sold, we should be compelled to import it. The only way in which we could comply with this clause would be by paying for the construction of the article 100 per cent. more than it need cost, and in the second place by making the consumers pay a correspondingly enhanced price. Is that the intention of the Bill? Undoubtedly not. None of us want to force the consumer to pay 100 per cent. more than he need pay. On the other hand, we want to give a fair protection to the inventor. If this clause is to be maintained we should state honestly that we are not going to give patents for more than four years. Because that is what it will amount to in nearly every case.
– Are we so backward as that ?
– The position is, not that we are backward, but that no one here has any enterprise. You put an advertisement in the newspaper, and no one responds. The people who are left in Victoria to-day are all so comfortable, and make such good incomes, that they do not care to go into any new business. That is the long and short of it. I say so as the result of my experience within the last fortnight.
– It is very gratifying to know that.
– I believe, judging from my personal experience, that such is the case. But that is only a side issue.
– What has the honorable senator been advertising for?
– For some one to construct this patented article ; and it was impossible to get tenders. If this clause is to be insisted upon, we might as well say that we are only going to grant patents for four years. In nearly every case it will be impossible for the inventor to comply with the terms now sought to be inserted in the Bill.
– There is one point of view which has been overlooked by the Minister for Defence, and also by the Committee. If the clause is pissed as it stands very few people will apply for patents in Australia. If, as Senator Matheson says, patentees find that patent rights are practically only granted for four years they will not be anxious to pay the fees to patent their articles here. They cannot manufacture the articles profitably within the Commonwealth. It would be impossible to manufacture a great many patented articles at a profit to suit the needs of such a small population as four millions of people. Any one who started to manufacture would lose money by it. I strongly oppose this clause, and consider that it is a great blot upon the Bill. As Senator McGregor has pointed out it cannot be in the interests of the inventor. I understood that the Bill was to protect the inventor as well as the public who buy patented goods. A few days ago I was speaking to a manufacturer who has large works in Melbourne. I wanted to buy a dynamo, and while I was at his works, I asked him what he thought of this clause. I said - “Would it pay you to make these dynamos entirely in Australia ?” He replied - “ No ; if we sold every dynamo that is used in Australia it would not pay us to make them here.” That opinion fully bears out what Senator Pearce has said, that this clause will operate hardly upon the gold-producing industry of Western Australia and also upon the farming community. I am satisfied that if the Bill compels the manufacture of patented machines in Australia we shall have to pay a very much higher price , for inferior articles. For these reasons it is against the best interests of the Commonwealth that the clause, as printed, should pass.
Senator PULSFORD (New South Wales). - I am sorry that we have not got the Postmaster-General in the Senate now. If he were here I should be able to urge upon him the necessity of keeping in touch with the electrical inventions of the day. I am sure that he would be satisfied of the unwisdom of putting in the Bill a clause, the effect of which would be to compel the Post and Telegraph Department to pay a greatly enhanced price for the electrical apparatus which it requires in such large quantities, and in which improvements are constantly taking place. I have received a letter, in which I am informed that what is called the electrical controller, used in the electrical trams of Sydney, is covered by no less than nine different patents. If we carried the clause I do not see that it would be workable. A particular article may not be the work of one inventor, but may be covered by many different patents. I was pleased to hear the remarks of Senator McGregor, who takes a commonsense view of this subject. It is the view I should take if I were a protectionist, because it is in the interests of the manufacturers to have the best and most perfect appliances. Any proposal which limits the availability of new inventions is a distinct blow to processes of manufacture. In the United States, where invention has achieved its greatest triumphs, and where the patents number almost thousands to the hundreds in other countries, there is no such provision as this in the Patents law.
– Canana needed it to protect herself against the United States.
– If Canada had to adopt this principle because she was alongside the United States, we are ten thousand miles away, and need not therefore be afraid of the contiguity of America. Protectionists and free-traders seldom show unanimity, but they can do so in eliminating this objectionable clause from the Bill.
– I expected opposition to this clause from some of the quarters from which it has come. The fact that the provision is not contained in the Patents law of the United States is no reason why, if we are convinced that it will benefit our own people, we should not have it in this Bill. There are two sides to the question. In the first place, it is all very well to say that we should protect the inventor up to the hilt, and that he should have a monopoly with regard to his invention. But the public also have some right to be protected. If this clause is carried, the public will be benefited, whilst, at the same time, I do not believe that any great injustice will be done to inventors. It has been said that certain patented machinery cannot be made within the Commonwealth. I want honorable senators to give me a specific instance as to any patented machinery that cannot be made by the artisans of Australia.
– At what price?
– I knew that that argument would be trotted out. When the importers, for whom my honorable friend is striving to obtain a monopoly, have the command of the market, at what price do they sell their goods to the public?
– As cheaply as they can.
– My honorable friend has only to consider the debates on the Tariff, when he will recollect numerous instances to the contrary. Reapers and binders were a case in point.
– Statements ; not instances.
– Actual proof was given. The facts are known to those who have lived in Victoria.
– As far as the value of a patent is that it can supply a want cheaper than existing means, then to compel the article to be manufactured in Australia makes it useless.
– The honorable and learned senator is proceeding upon suppositions. Our importing friends want to secure the free importation of articles from the other side of the world.
– This Bill does not give free importation ; it does not upset the Tariff Act.
– I know that it does not.
– Why rob a man of the fruits of his brains because it does not pay to make his article in Australia ?
– All these arguments were trotted out when we were discussing the Tariff. We were told that it was impossible to compete with manufacturers in other parts of the world. We were told that in the early days of protection in this and in other States of the Commonwealth, but we adopted a system of protection with the result that we wereable in a few years not only to compete with the imported article, but to sell cheaper in various lines of manufacture. Honorable senators will know that for years we imported our locomotives from England and America, and it was said that we could not compete with those countries in manufacturing them here. Perhaps this is trenching upon another subject, but with regard to this intricate machinery, and the patents connected with mining machinery under this Bill, the patentees will have the Australian market for four years. The cases cited by Senator Smith can be met under this Bill. During those four years, the patentees of mining machinery will probably be able to supply all that is required in Western Australia, or in the whole of Australia. I think this is a very wise provision,and one upon which the Government may be commended.
– I notice that Senator Pulsford, in opposing . this particular clause, regretted that the
Postmaster-General was not present, as he would have impressed upon that honorable gentleman the desirableness 6i his Department keeping in touch with the great ‘ electrical inventions of the age. Presumably, Senator Pulsford is of opinion that if this clause is incorporated in the Bill, the Postal Department in Australia will in future be deprived of the advantage of using the latest inventions in connexion with electric telegraphy. The clause has no such significance. There is nothing in it which will render any article originally patented and the subject of importation for four years, and which is not the subject of manufacture in Australia, an article which cannot be imported into Australia. The disability, if it may be called a disability, is imposed not upon the article itself, but upon the individual who originally secures patent rights for it. “When he gets the patent rights the condition is that, within a certain time, he must commence the manufacture of the article in Australia, and if when that time has elapsed he has not commenced to do so, or having commenced does not continuously manufacture the article so as to meet the local demand, then his patent rights, so far as the Australian market are concerned, are revokeable
– Unless he can set up a factory, and keep it going after five years, he has no patent. That is very harsh.
– If he cannot do that his patent rights may be revoked under clause 84. But so far as the article which is the subject of the patent is concerned, there is nothing to provide that it shall be shut out of Australia. What we provide is that, if after a certain time the patentee does not establish the manufacture of his invention in Australia, he shall not have the monopoly of the Australian market as an importer. We do not deny ourselves the advantage of using the invention, even if it be produced in another part of the world. We say that the patentee shall not continue to enjoy his monopoly under these patent rights without giving us a quid pro quo. It is not to be assumed that when an inventor obtains patent rights in Australia he will be content with that. If his article is the subject of manufacture elsewhere, and we are importing it into Australia, it must be obvious that he has taken out patent rights in respect “of it elsewhere. Under this Bill, the patent rights granted to him, so far as the Australian market is concerned, are subject to the two conditions imposed. But so far as the people in Australia are concerned who are engaged in mining and manufacturing industries, and who may require the particular machines spoken of by Senators Pearce and Smith, there is nothing in this clause which will deprive them of the possibility of getting what they require. We say that the inventor shall enjoy the sole right of importing and supplying the Australian market for a certain period, and if at the end of that period he does not choose to erect within Australia works for the manufacture of his invention, he shall no longer be a monopolist so far as Australia is concerned, and the people of Australia will be at liberty to obtain his invention in whatever way they choose. If he says that the market in Australia is so limited that it will not pay him to commence the manufacture of his invention in Australia, as in the case cited by Senator Saunders, we provide by this Bill that the article may still be imported freely into Australia, but the inventor will not have the sole right of selling it in this country. If any one in Australia is of opinion that it will pay him to manufacture the invention ‘ in .Australia, he will be at liberty to do so, and that will not be considered any infringement of. any right granted to the inventor in the past. I repeat that the disability, if it may be so called, is only upon the person who secures the patent rights, and although those rights, under certain conditions, may be revoked, the people of Australia will be placed in no worse position.
– Prom the remarks which have fallen from Senator Keating, it w,ould appear that a patentee is to have no protection at all, and we desire under this Bill to give protection to the patentee. We are also anxious that the public of the Commonwealth shall not be unduly penalized by the patentee, but in clause 85 we overcome that difficulty, and, having that clause, it is unnecessary that we should also have clauses 83 and 84. Under clause 85, if the patentee, being registered outside the Commonwealth, does not ‘ think our market sufficiently large to induce him to establish the manufacture of his patented article here to supply this market, and some person within the Commonwealth thinks the market good enough, that person can apply to the patentee to grant him a licence for the manufacture of the patented article here so that the Australian public may have the benefit of the invention.
– Supposing nobody makes that application, where will the public be then ?
– If no such application is made, I presume it will be because there is not sufficient demand for the article. If there is a demand for it, we may assume that the application will be made. Senator Drake referred to the Canadian Act, and I should like to read to the honorable and learned senator a section appearing in the Canadian Act which has just been passed, and which came into force on the 1st of this month. It provides that -
On the application of the applicant fora patent previous to the issue thereof, or on the application, within six months after the issue of the patent, to the patentee or his legal representative, or on the application, within six months hereafter, of the owner of any patent heretofore issued or now in force, or by this Act revived, the Commissioner of Patents, having regard to the nature of the invention, may order that the patent, instead of being subject to the conditions of working and importation, as in clauses 83 and S4 of this Bill, shall be subject to the conditions of a compulsory licence, as in clause 85. The Canadian Act leaves it to the applicant to apply to the Commissioner for a direction as to whether his patent shall be subject to working or importation on the one hand, or to a compulsory licence on the other. Honorable senators will see that he ds there given a choice. I think we should provide, in clause 85, that if the patentee will not grant a licence to manufacture, his patent rights should be revoked.
– How can he refuse, if the Court orders it ?
– I presume that he would have to obey the order of the Court, but I think it should be made clear that, if the Court orders the issue of a compulsory licence, the patent, rights shall be revoked if that order is not complied with. A correspondent of mine, who calls my attention to the Canadian provision’ to which I have referred, writes -
I have this morning received a copy of an amending Canadian Act, which will come into force upon the 1st proximo.
It will be seen from the provision to which 1 have referred that under the Canadian law the patentee must comply with the working conditions, or must grant a licence to manufacture. Under that provision both patentee and public are protected. Having clause 85 in the Bill, I do not see any necessity for clauses 83 and 84. 1 think with Senator McGregor that those clauses will prove most injurious to the patentee, and I hope the Minister will see his way to allow them to be struck out.
Senator HARNEY (Western Australia). - When I spoke upon this clause upon the first occasion, I dealt with it merely from the legal point of view. The language struck me as very loose and such as to render the interpretation a matter of extreme difficulty, though otherwise I thought the idea very excellent. On looking at the clause closer,- however, I find that the plausible appearance it presents is merely a mask, which, when torn away, reveals undiluted, hide-bound protection. Nothing could be clearer to anyone who carefully reads the clause than that the effect is to say to an Australian inventor - “ We protect you for four years in any event, but not for a day longer, unless you are fortunate enough to be able to set up in Australia, by yourself or your assignee, a factory for the manufacture, construction or working of this invention.” Is that a fair or a reasonable condition to impose on a poor man who gives the result of his thought, in the form of an invention, to the public? The invention may be of a character which is impossible of manufacture in Australia. - Suppose it be a. light in which the main material is a by-product of petroleum, which is not to be found in Australia. At the end of four years we say to the inventor - “ You must not import this from outside Australia,” aad the result is that the public cannot have the light at all, and the duration of the patent becomes four years. Then, again, the success of a patent may lie in a process by which a want of the general public is supplied not more efficiently, but more cheaply, than by a process already in existence. In other words, the only justification for the patent, and the sole value of it, may be that it does in a cheaper manner what is already done. It may be necessary for the inventor to obtain one portion of his material from the cheap labour of the Indies, and another portion from the cheap labour of the .
I slums of London, and by the combination be able to undersell an article which supplies the want not less efficiently, but necessarily at a higher price. In such a case, does this clause not limit the period of the patent to four years ? An inventor is prevented from selling the public something, except on a condition which it is impossible to fulfil - the condition of paying the high wages prevailing in Australia, and of using the high-priced materials to be found here. The whole clause is another way of saying, “Not only will we compel Australian people to buy in the dearest possible market, namely, the Australian market,”- and herein lies the whole theory of protection as against free-trade - “ but we will compel the Australian inventor to confine his efforts to supplying public wants which are suitable to Australian conditions.” That is the old argument of protection as against free-trade. The view I am now taking is in accordance with the free-trade doctrine, which I am bound to maintain as strongly as I can. At first the clause did not appear to me to involve the fiscal question ; but, after examination, I am bound to say, as a good free-trader, that I cannot support it.
– I am bound to admit that there is a flavour of protection about the clause, and that makes me rather surprised that I have not received the full support of the protectionists in the Senate. I explained at the beginning why a similar provision was put into operation in Canada. There was a desire that when any rights were given under the Patents law, Canadian industries should be built up, and it was determined that if patented articles continued to be manufactured in the United States, patents would not be issued for the benefit of a few individuals. Senator Charleston contended that clause 85 would do all the work that we desire should be done by clause 83, but he admitted the weakness of his contention by suggesting an amendment in 85 which would tend in a direction opposite to that which he desired. If that amendment were to be carried, we should have a jumble of two provisions which are much better apart. With the amendment, leaving to the Court the power to revoke letters patent, there would still be a probability, under clause 85, of a person getting patent rights here and using them simply for the purpose of interposing between the public and the manufacturer, and extorting a toll. Clause 85 provides only that if an inventor is not so working: as to supply the reasonable requirements of the public, the Court may compel him to grant licenses to other persons to do so, on the application of some person interested. But, if no application be made to the Court, then there may. be a man in Australia with patent rights which he uses simply to hold a market and compel the public to pay toll to him on getting the article from abroad. It is said that that position may begot rid of by taking the provision in clause 83 as to patents lapsing, and. grafting it on to clause 85. But how could that be done? Clause 85 provides that the Court may make an order compelling a patentee to grant licences. The Court does not make an order and then look at the Act to see what is going to happen if the order is not obeyed. If the Court makes an order it will use all its power to insure its being obeyed. If that is the remedy given under the clause, then the Court will compel a patentee to grant compulsory licences ; and there the matter ends so far as that clause is concerned. If we desire the Court to have power to revoke licences, that power is given in clause 83. A licence is not exactly revoked, but it lapses if the conditions on which it was granted are not fulfilled ; and it would be much better to allow the Bill to remain as it is. In the first place, the patent rights are granted subject to certain conditions, and if those conditions are not fulfilled the rights lapse. Then if a person interested either as a manufacturer or a user shows that the holder of patent rights is not exercising them in such a way as to supply the reasonable wants of the public, the patentee may be compelled to grant licences. The two provisions are not antagonistic, but complementary.
Question- That the clause stand part of the Bill - put. The Committee divided.
Majority … … 2
Question so resolved in the negative.
Clause 85 -
Any person interested may present a petition to the Commissioner alleging that the reasonable requirements of the public with respect to a patented invention have not been satisfied and praying for the grant of a compulsory licence.
– This becomes a more important clause owing to the fact that clauses 83 and 84 have been negatived. Some time ought to be named in which a petition maybe presented. According to the clause as it at present stands, a petition may be presented at any time, even before a man has had an opportunity of making arrangements for starting work. I move -
That, after the word “may,” line 1, the words “ after the expiration of two years from the grant of the patent” be inserted.
– I think that is a reasonable amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 86 (Assessors).
– I notice that the word “ Court “ appears. In previous clauses we have had “Supreme Court,” “Supreme Court of a State,” and now we have the word “ Court,” which is not defined. What “ Court “ is meant ?
– The Supreme Court.
Clause agreed to.
Clause 87 consequentially amended, and agreed to.
Clauses 88 to 90 agreed to.
Clause 91 -
The inventor of any improvement in instruments or munitions of war may assign the invention, and the patent obtained or to be obtained for the invention, to the Commonwealth.
The assignment, and all covenants and agreements therein contained, shall be valid and effectual, notwithstanding any want of valuable consideration, and may be enforced by action or other appropriate proceeding in the name of the Attorney -General.
– I take it that the object of the clause is to lay down the principle that the Minister for Defence may take over an invention of an improvement in instruments or munitions of war.
– If it is necessary to take this power in the case of the Defence Department, I think it is also necessary to protect the interests of other Departments. We ought to lay down the general rule that the Government may take over an invention of an improvement. Take, for instance, the invention of wireless telegraphy ; surely it should be reserved for the use of the Crown, and should not be monopolised by any individual ? I do not suggest that we should rob any inventor of the result of his genius ; he should be fairly compensated. We should prevent such inventions being sold to a private company. When we recollect that the States and Federal Governments are launching out into schemes of State enterprise which were not dreamed of many years ago when the old Patents Acts were passed, we shall see how necessary it is to give Ministers a larger power than is conferred on them by this clause. Why is it given to the Minister for Defence? Simply because it is recognised that it is in the public interest that no private company should be able to monopolize an invention of an improvement in instruments or munitions of war. The States Governments have practically a monopoly of railway traffic. Suppose that an invention were discovered which would revolutionize the means of transit and transport. The inventor would be able to sell to a company an invention which would make the railway lines of the States worthless and useless, and practically do away with the security for the national debt. Such a contingency suggests the necessity for giving to the States or the Commonwealth Government a pre-emptive right to every invention, subject to the payment of a just compensation. Clause 90 contains this provision -
A responsible Minister of the Crown administering any Department of the public service, whether of the Commonwealth, or a State, may use the invention for the public service on such terms as are agreed upon with the patentee, or, in default of agreement, on such terms as are settled by arbitration in the manner prescribed.
It does not give a pre-emptive right to the Crown, but merely places the Crown in a similar position to .any individual. A Minister df the Crown may approach the patentee, but the latter may have sold his rights to a company.
– The Government would be able to use the invention.
– It may ‘ be used on payment of compensation ; but if the company has paid a large price for the patentee’s rights, the Arbitration Court would be influenced by that’ fact in assessing the amount of compensation to be paid.
– That would be the fair market value.
– What the company paid for the invention would be a speculative value. In Western Australia, for instance, a man discovered an invention for the purpose of safeguarding crossings. Did he approach the Government to ascertain what they thought was its fair market value? No; on the contrary he looked for some person who would give him a speculative value, and, having attained his object, the purchaser of the invention approached the Government with a view to obtaining an advance on that sum. It was not desired that the Government should get the use of the invention at its fair market value.
– Would not the Arbitration Court, in determining what was the fair market value, see through that little trick?
– The purchaser would say - “ I have paid so much for the invention ; am I to be expected to hand it over’ to the Government for a smaller sum.” I believe that in any Arbitration Court that would be a very effective argument. I gave notice of my intention to move for the insertion of the word “ scientific,” but I find that it will not meet the case. I move -
That after the word “any,” line 1, the words “ invention, or of any” be inserted.
If that amendment is carried, I propose to ask the Committee to substitute the words “ of the Crown” for the words “for Defence.”
– I do not quite follow Senator Pearce, because there is nothing that I can see to prevent an inventor, if he likes, from assigning his rights to the Commonwealth. The provision in clause 90 is simply to insure that if an invention is required in a Department of the Public Service, the Minister may obtain the use of it for the Department on paying the inventor a sum to be fixed by arbitration. That is very similar to the provision in the Post and Telegraph Act in regard to our use of the States railways. We recognised that we ought to pay a price similar .to that which would be charged to private persons, but we made it compulsory on the part of the Statesto allow us to use their lines. Formerly,, when a man discovered an invention the patent rights were not binding on the Crown ; it could always use the invention. We have altered that rule, but still there is the provision that the Crown is not to be prevented, on payment of a reasonable price, from having the use of an invention. Clauses 91 to 93 specially refer to inventions in munitions of war, because it is necessary to depart from the ordinary practice in order to insure secrecy. It would be of noadvantage to the Government to be possessed of an invention of an improvement in a weapon of war, if it could become known to everybody.
– It does not’ apply tosuch inventions as that of wireless telegraph
– I do not know thatit does. I do not see how we can go so faras to say that if a man discovers an invention like that of wireless telegraphy the Government can not only use it, but refuse to allow any one else to use it - take a monopoly in the invention for its own profit without giving any compensation to the inventor.
– A fair market value.
– That is provided for in clause 90.
– The amendment goesfurther than that, but I do not think that Senator Pearce intends- that it should.
– The amendment doesgo further than that, but even clause 91 only provides that the inventor may assign his invention.
– We do not require a. clause at all.
– No. The purpose of clause 91, it seems to me, is to be found in. the second paragraph -
The assignment and all covenants and agreements therein contained shall be valid and effectual, notwithstanding any want of valuableconsideration, and may be enforced by action orother appropriate proceeding in the name of theAttorneyGeneral.
The first three lines of the clause are put in, in order that the second part which I havejust read shall be clearly seen to apply tonothing else than that particular invention j but there is nothing in the Bill that can possibly prevent an inventor from assigning all his lights to the Government.
– Does not the Minister think that this clause would give the Government a pre-emptive right?
– Not to take a monopoly of the invention and use it.
– Not munitions of war ?
– No ; the first paragraph of clause 91 simply says that the inventor of an improvement in instruments or munitions of war may assign the invention to the Commonwealth ; and the second paragraph says that certain provisions which would operate otherwise shall not operate in that case.
– Does the Minister notice that the second paragraph says that the assignment and all covenants shall be valid and effectual, notwithstanding any want of valuable consideration ?
– An ordinary agreement is voidable on the ground of want of consideration. There must be a consideration to make a contract valid and binding. If it can be shown that there has been no consideration then a contract may be avoided. But in this particular case an agreement is to hold good, even if there may have been no valuable consideration shown.
– The Minister used the expression “ even if there may have been no valuable consideration,” but that is not exactly the case ; it is “even if no valuable consideration is expressed.” I hardly see why an agreement which has been entered into with the Government, and in which there is a valuable consideration, should be allowed to be valid without the expression of that consideration. I do not see any particular point in exempting an agreement made with the Government from the operation of that provision in the common law. I do not see why the consideration should be left out. It will give an inventor an opportunity of defrauding his associates if he desires to do so. For instance, a director may sell his patent to the Government, and afterwards show his partners an agreement to the effect that he got nothing for it.
– The whole clause seems to me to be particularly meaningless. It has no greater effect than to put assignments between the Commonwealth and an inventor in the same position as assignments between private individuals.
– Would the honorable and learned senator let the clause pass if he found that it was the same as a section in the English Act?
– I should be inclined to do so, but it is meaningless. I hope that the Minister will give some reason for its inclusion.
– The English Act provides -
The assignment shall effectually vest the benefit of the invention and patent in the Secretary of State for the time being, on behalf of Her Majesty, and all covenants and agreements therein contained for keeping the invention secret and otherwise shall be valid and effectual (notwithstanding any want of valuable consideration), and may be enforced accordingly by the Secretary for State for the time being.
– The draftsman has missed the whole point.
– I think we had better postpone the clause and refer it to the draftsman.
Amendment, by leave, withdrawn.
Clauses 92 to 96 postponed.
Part VIII. - Patent Attorneys.
Senator MATHESON (Western Australia.) - When the second reading was being debated, the question was raised as to whether the word “ attorneys “ in the heading to Part VIII., should not be omitted with a view of inserting the word “agents” which is the ordinary term. The matter does not require much discussion, but I would observe that the word “ attorney “ carries with it the insinuation that the agent is connected with the law. In this case it is not intended that the attorney shall be a legal gentleman. I move -
That the word “attorneys” be omitted with a view to insert in lieu thereof the word “agents.”
– The word “agent” is very vague indeed. It signifies a man who acts for another, and who possesses no particular skill or qualification in connexion with his work. There are land agents and house agents who may be skilful in their business, but whose work requires no particular qualification. Here we are making a departure. We want the patent attorneys to be persons having special skill in connexion with patents. They will not necessarily be members of the legal profession, except in regard to the Patents law ; but we want it to be understood that they are not ordinary agents, but persons possessed of ability in connexion with this business. When we are accustomed to the term patentattorneys, it will seem quite as appropriate as the term “ patent agents.”
– One would think that before a man can be a patent attorney he has to be an attorney.
– A patent attorney has to pass an examination, and show special skill ; though if an agent has been acting as such for six months before the passing of this measure we will admit him without examination.
– Is the term now used in any of the States?
– Ithink not; but that is only because the States have followed the same model, or one another. There is no particular ground for argument in that. The term “ attorneys “ gives the persons who pass the examination a somewhat higher status.
– There is no relation between passing an examination and calling a man an attorney.
– I can see no good reason for objecting to the adoption of the term attorney.
Heading agreed to.
Clause 97 -
Any person on passing the prescribed examination, and on paying to the Commissioner the prescribed fee may be registered by the Commissioner as a patent attorney.
– I think it will be right for Parliament, instead of the Commissioner, to decide what the fee shall be. I suppose that the Commissioner will draft regulations prescribing the fee which attorneys shall pay; but there is no reason why Parliament should not fix the amount. I think the sum should be £1. I move -
That the words “the prescribed fee,” line 3, be omitted.
Amendment agreed to.
– I think that £1 is too low. I will consent to the fee being fixed at £5.
Senator PULSFORD (New South Wales). - Five pounds seems to me to be too large a sum.
– They will soon make that up.
– Sometimes it takes a long time to make up £5.
– Not amongst patentagents.
– I suggest that we should fix £2 by way of compromise.
Amendment (by Senator Drake) agreed to-
That after the word “ Commissioner,” line 2, the words “a fee of five pounds “ be inserted.
Clause, as amended, agreed to.
Every patent attorney shall have such privileges as are prescribed.
– I move -
That, after the word “ privileges, “ line 1 , the words “and shall be entitled to charge such fees “ be inserted.
There seems to be a storm of protest against this proposal, but lawyers’ fees may be taxed by a taxing master, and the Commissioner of Patents, who will be an expert in this line, can surely lay down a scale of fees which will be elastic enough to meet the various cases that may arise. We are recognising in this Bill that most of the business will be transacted by patent attorneys. The very distance of most of the States from the Patents-office will render that necessary, and there is little use in making this Patents law a liberal measure when we have no guarantee that patent attorneys will not tax inventors. If we lay down a scale we shall have some guarantee that no inventor will be charged exorbitant fees.
– The inventor can go to the Patents-office, and need not go to an attorney at all.
– He can if he is in Melbourne, but he may be hundreds of miles from the Patents-office. Unless some scale of fees is laid down there is no doubt that the charges of patent attorneys will be regulated only by the competition there is in this business. If Senator Drake thinks this matter is one which deserves further consideration he might agree to postpone this clause, but I think we should have some proof that the amendment I suggest is not feasible before it is condemned.
– I do not think that the amendment would benefit inventors very much. We should have to fix a fee for lodging an application or drawing up a specification, which would, at all events, be sufficient to recompense a man for doing the necessary work in connexion with the most extensive and intricate matters which might possibly be put into the hands of a patent
Attorney, and that, possibly, would come to be looked upon as the usual charge. Again, if we say that the fee for drawing up a specification shall be two guineas, and Mr. Marconi desires to secure patent rights for his wireless telegraphy, and wishes to have specifications drawn up which involve a lot of intricate detail, is it to be understood that a charge of two guineas only will bc made for that? Surely that is not intended 1 It seems to me that there will be so much diversity amongst inventions which will be the subject of applications, that a reasonable fee for drawing up specifications might vary from & few shillings up to hundreds of pounds. In such circumstances, how is it possible to fix a scale 1 I think we must leave to the patent agent the fee to be charged, and . there, is this safeguard to inventors that they are not bound to go to a patent attorney at all or to any particular one. Various fees may be charged by different patent attorneys. A man who has a simple invention which he desires to patent will probably go to a patent attorney, who willcharge a small fee, and a man who /desires to secure a patent for a very intricate machine will probably go to a man at the top of the profession, and pay a much higher fee.
– I will not press the amendment.
Amendment negatived. .
Clause agreed to.
Clause 99 agreed to.
No person who has boon employed as an officer in the Patents-office shall be registered as a patent attorney until he has ceased to be an officer for at least twelve months.
– This appears to me to be a very unjust and illiberal clause. I do not know why an officer employed in the Patents-office should not be allowed to become a patent attorney. I believe that in America it is a very common thing for even a Chief Commissioner to leave the office with a view to enter upon business in this line on his own account. It is difficult to conceive anybody likely to be better acquainted with the patent law, or better able to guide would-be patentees over the difficulties of applications and specifications. Unless there is some good reason for it of which I know .nothing, I think this clause should be omitted.
– The’ reason clearly is this - an officer who is in the Patents-office, while an application is going through, may. become possessed of information in consequence of his position. It may be made worth his while to retire from the office, and ho may become a patent attorney at once, and act in such a way as to use the information he acquired in the office against an applicant for a patent. We have in another part of the Bill provided that an application must be accepted within twelve months of the date when it is lodged. I presume that is why the twelve months period is fixed in this clause. Presumably, if an officer has been away from the Patents-office for twelve months he will not be in a position to make use of any information acquired during his service in the office.
– I do not agree with this clause. I think it is a very unfair one. We have protested in the Senate against the application of this principle to members of the Senate in connexion with another Bill. If it was wrong that the legal members of the Senate should be debarred as proposed in connexion with another measure, it is equally wrong to debar officers of the Patents-office as proposed in this clause.
– This is an entirely different position.
– The only difference is that we dealt with lawyers in one instance and we deal with clerks in this instance.
– We passed a provision just now that reports of examiners must not be made public, and the honorable senator will see that officers in the Patents-office may have had access’ to those reports, and it is wrong that a patent attorney should be able to use information obtained in the office.
– I think this is on: all fours with the matter to which I have referred in connexion with another Bill. There is very little probability of a clerk in the Patents-office resigning his position in order to become a patent agent, under the circumstances referred to by Senator Drake.
Clause agreed to.
Clauses 101 and 102 agreed to.
Clause 1 3 -
No person shall describe himself as a patent- attorney unless he is registered or entitled topractice as a patent attorney under this Act.. Penalty, one hundred pounds.
– I point out that this clause is very indefinite. It says that no person shall describe himself as a patent attorney. I am told that the English Act provides that -
No person shall in any way or by any means describehimself as a patent attorney or patent agent, or by words conveying or intending to convey that he is registered by the Commissioner of Patents, and entitled to practise in patents as an agent for persons applying for or opposing the grant of a patent unless he is registered under this Act.
– That was not drafted by Mr. Kingston.
– I shouldnot think so ; but I dare say they have people in England who can draft clauses and make them comprehensive and suitable. This is a very loose clause. It is quite possible to reduce a clause to so few words that we may have to make up for it afterwards by a lot of litigation and trouble. The clause ends - “ Penalty, one hundred pounds.” But I do not think there is any means provided for enforcing payment or imprisonment in the alternative, if imprisonment is thought to be right.
– The honorable senator will find that clause 5 deals with the enforcement of penalties, and on the other point I am contemplating the insertion of a clause similar to clause 258 of the Customs Act.
– Will the honorable senator consider at the same time whether the wording of the clause is comprehensiveenough ? It says simply “ describe himself.” But that is open to all sorts of interpretation.
– I will consider that matter.
– I hope that Senator Drake will remember that this is an extremely important clause. I can understand the objection raised to it by Senator Pulsford, because it is easy to believe that, in some circumstances, a man, by describing himself as a patent attorney, may receive valuable information with regard to a patent to be taken out, and may also receive money from an inventor, under the impression that he is a patent attorney. I think, if possible, the clause should be strengthened so that inventors may not be at the mercy of, and be victimized by, persons describing themselves as patent attorneys .
Clause agreed to.
Royal Assent reported.
– the Senate adjourns I have to state that His Majesty the King has approved of the appointment of Lord Northcote to be Governor-General of the Commonwealth, to take effect at the end of Lord Tennyson’s term of office.I move -
That the Senate do now adjourn.
Question resolved in the affirmative.
Senate adjourned at 10 p.m.
Cite as: Australia, Senate, Debates, 11 August 1903, viewed 22 October 2017, <http://historichansard.net/senate/1903/19030811_senate_1_15/>.