6th Parliament · 1st Session
The President took the chair at 11 a.m., and read prayers.
SenatorNEEDHAM. - Has the attention of the Minister of Defence been called to the cabled reports, both yesterday and to-day, of the intention of the British Government to take more drastic measures in connexion with the internment of alien enemy citizens, and, if so, do the Government intend to take more drastic measures in that regard than they are taking at present?
– I have not seen any information on the subject yet. I may say that, this morning, an instruction has been sent out that all German clubs throughout the Commonwealth are to be closed, and other action is being taken which it is not considered desirable to makepublic.
The following papers were presented : -
Defence Act 1903-1915.-Report on theRoyal
Military College of Australia, 1913-1914.
Papua : Transactions of Trustees of Infirm and Destitute Natives Account, dated 7th October, 1914.
– The answers are -
Payment for Holiday
asked the Minister representing the Postmaster-General, upon notice -
– Inquiries are being made, and replies will be furnished as early as possible.
asked the Minister representing the Attorney-General, upon notice -
Has a definite decision yet been arrived at regarding an appeal to His Majesty the King in Council from the decision of the High Court of the Commonwealth in the Wheat Case?
– It is not proposed to appeal.
– Now we know where we are.
Motions (by Senator Ready) agreed to-
That leave of absence for one month be granted to Senator Stewart, on account of urgent business.
That leave ofabsence for one month be granted to Senator Mullan, on account of urgent business.
Motion (by Senator Ready) agreed to -
That the report from the Printing Committee, presented to the Senate on the 13th May, 1915, be adopted.
Debate resumed from 7th May (vide page 2971), on motion by Senator Gardiner -
That this Billbenowreadasecondtime.
– When I moved the adjournment of this debate on Friday last I recognised that the measure had only just previously come into the Senate from anotherplace. I knew that it had occupied the attention of that. House for a considerable time, and, though I am not thoroughly familiar with, I had some idea of the nature of, the discussion which had takenplace there in regard to certain ‘ of its provisions. I had nob at the time it was circulated here in its present form an opportunity of comparing its provisions with those contained in the original Bill as introduced to Parliament, and a copy of which the members of both Houses had received with their papers some time previously. Since the adjournment of the debate I have had that opportunity, and noticed that the Bill now contains provisions which it did not have when it was originally launched in Parliament. The mere presence of those provisions renders it unnecessary for me to subject the Bill to anything like the criticism I had intended had it come here in its original form. The additional provisions are contained in sub-clauses 2 and 3 of clause 4. It will be recollected that early this session we passed an amending Bill on patents, designs, and trade marks; in fact, we passed two. This is the third of such amending Bills, and I would not be in the least surprised if before the session closes, or, at any rate, in the near future, we have to pass another or further amending measures. When I say that, I do not intend to cast any reflection on the Government. We are dealing with a very delicate and technical subject, and whatever legislation we pass must be motived by considerations arising not merely from our foresight, but largely out of our experience. A patent is a monopoly - a monopoly granted by the Crown, but granted for a term only, and on certain conditions. At one time in English history it was competent for the Crown to grant monopolies without any restriction. Great abuses arose and, as a consequence of that, patent legislation came into force, and the granting of monopolies has since been regulated by what is known as the patents law. One of the conditions of obtaining a patent is that it shall be for something which is new and useful. When I say “new,” I mean that it must be something which previously was not known to or used by the public. The person who secured a patent right secured it in consideration of what he gave to the public. If the public already knew or used that particular invention there was no consideration, and his patent was no good. Now, as a matter of fact, when a patent right is secured under our legislation or under the legislation of any other portion of the British
Empire, it does not confer on the patentee an indefeasible right, even for the period of fourteen years for which the patent ia granted. I mean by that that if anybody else apparently infringes his patent, apparently uses an invention to which he alone is entitled, that person may be proceeded against by the patentee for damages, and the patentee may also apply to the Court for an injunction to restrain that person from further infringing his patent. But if the person so proceeded against civilly can establish that the invention is not novel at all, that it lacks one of the essentials on which a patent is granted, the patent may be declared void. There is in existence in every country a number of what I may call voidable patents. They are in force, but if an individual has the hardihood to use a particular invention, believing that it is not the subject of a proper patent, although it is the subject of a recorded patent, that no patent should ever have been granted in fact, he may use it, but he does so, of course, at his own risk. If he is proceeded against civilly for damages or an application is made for an injunction against him it is competent for him to take up in the Court an attitude which will cause the patent to be voided. That was the position of the law. What we did by our amending legislation earlier in the session was to grant a power to the Minister, that is to the AttorneyGeneral, to suspend in whole or in part or nullify or void totally any patent. The object of the legislation was that Australia should not be deprived of the benefit and advantage of certain requirements which at the present time German patentees have the sole right to produce in Australia. It was a very good object. We aimed at providing that the public of Australia should not be penalized by reason of the fact that Germans held patents in respect to requirements of the public. We did then, as I think, very clearly provide that the Minister might avoid or suspend in whole or in part a patent. We did that in the interests of the community. We made provision also that tiler Attorney-General might grant a licence or licences to persons in Aus: tralia to manufacture or produce and vend those articles which otherwise in peace times would be the subjects of these patents. We provided, too, that as1 a condition certain payments might be attached to such a licence.
The fund so raised from licensees would remain in trust in the hands of the Government, as I pointed out on a previous occasion, to be disposed of after the war, as circumstances should determine to be just.
– How much has been collected?
– I cannot say; but I should not imagine very much. I do not think there have been many successful applications. “We made a singular omission in our legislation at that time. While the Minister might suspend or avoid a patent and grant a licence to another person to manufacture and vend the article, the licensee was in no way protected from outside competition. Consequently, if the Minister avoided any particular patent wholly, it was open to any member of the public to disregard the patent and manufacture and vend the article.
– Has any licensee suffered in consequence of that omission?
– I am not in a position to say what the consequences were. We also gave the Minister power to suspend a patent in whole or in part, and grant a licence to some person to manufacture and vend the article. We did not protect the licensee from competition, and that omission this Bill is intended to rectify. Clause 4 provides that any person other than the licensee who uses, exercises, or vends the invention shall be guilty of an offence, and liable to a penalty not exceeding £500. Here the position of the licensee is different from that of the original patentee, because if an unauthorized person infringes an ordinary patent, not avoided or suspended, and not belonging to an enemy subject, he cannot be prosecuted. All the patentee can do is to bring against him a civil action for damages, and apply for aninjunction.
Senatorde Largie. - I thought this Bill referred only to the patents of alien enemies.
– The Act we passed last year provides a general power to avoid or suspend, the understanding being that it was to be exercised only in regard to enemy-owned patents. By this legislation as originally introduced, it was proposed to protect a licensee more strongly than an original patentee was protected, and more strongly than an Australian, neutral, or British patentee would be protected in the future. Yielding to criticism on the point, the Government have now introduced sub-clauses 2 and 3 of clause 4, of which sub-clause 3 provides that no prosecution shall be taken under the section except by the AttorneyGeneral or person authorized by him in that behalf. That to some extent meets the criticism levelled at the measure, but another anomaly has been rectified. Under the normal law of patents a person charged with infringing an ordinary patent right could, when proceeded against, attack the validity of the patent, but the person proceeded against under this legislation for infringing the right of a licensee could not doso. That defence, if successfully set up, could cause the patent to be declared void by the Court. As this Bill stood originally, any person prosecuted at the instance of a licensee for alleged infringement could not attack the validity of the patent, so that he was in a worse position than if he had infringed the rights of the original patentee. The Government, however, provide by sub-clause 2 of clause 4, that it shall be a defence to a prosecution under this section if the defendant satisfies the Court that a petition for the revocation of the patent, or for the removal of the trade mark or design from the register, would be successful. That is a right provision, because we should not put our own Australian patentees in. a worse position than a person who received a licence in respect of a German patent.
– It is a good provision for the lawyers.
– It is a good provision for the public, and puts the licensee in no better or worse position than the original patentee. If there is in the community a man plucky enough to make or vend the article, and establish that the German had no right to the patent originally, why should he not be able in a similar way to show that the licensee in his turn has no right to a monopoly? The inclusion of these two provisions has remedied defects which occasioned a. great deal of criticism ofthe Bill as originally introduced. I understand that the Attorney-General announced that further amendments suggested would be considered either before the Bill reached the Senate or before it is finally dealt with here. One very important matter requiring consideration is as to whether the only remedy for infringement of the terms of his licence which the licensee of a patent is to have is that provided in clause 4 upon procedure for an offence, or whether he should also be given a remedy in the form of a suit for damages in a civil Court. As I have already said, I should not be surprised if we found it necessary to still further add to our patents legislation, and it might be found necessary to make the provision to which I have just referred. I quite realize that this apparent tinkering with our patents legislation is due to the novel circumstances in which we find ourselves, and to the fact that we are dealing with a very difficult technical and delicate matter. The Bill, as we have it, is very much more satisfactory than as it was when originally circulated, and it was only because of the apparent defects in the Bill as originally circulated, and because I was not aware of the changes made in it during its passage through another place, that I asked for the adjournment of the debate upon the second reading. Had I at the time been aware of the amendments upon the original measure made in another place I should have been prepared a week ago to have continued the discussion upon the second reading of the measure. I intend to support the motion.
– Those of us who have been with Senator Keating members of the Senate for some years are aware that he has made a special study of patents legislation, and from time to time has dealt with the question of patents in a very able manner. “With his legal knowledge of the subject the honorable senator can more easily discuss it than a lay member of the Senate could expect to do. Still, I feel that many of Senator Keating’s remarks this morning, while doubtless quite appropriate to the consideration of a Patents Bill introduced in ordinary circumstances, are not as appropriate in the discussion of the Bill now before us. There are international rights and observances in connexion with patents that are not recognised with respect to Tariff, commercial, or other industrial legislation. In dealing with a measure of this kind we have first of all to recog nise that we are at war with a country whose patents have played a most important part in its progress and prosperity. Not only have the patent laws helped to foster the prosperity of Germany, but probably no other legislation has contributed so largely to German advancement. In the circumstances, it is a great mistake to consider a measure of this kind as though we were not at war, and as if the commerce of the various nations were going on in the usual even way. We have to consider the war conditions under which we are living, and which have urged us to bring forward emergency legislation of this kind. I need scarcely say that I am an enthusiastic supporter of this kind of legislation, but I consider that this Bill is far from perfect. When such legislation is introduced it should not be a mere pretence to do something which will end in our doing nothing. I feel compelled to say that the legislation we have passed in this connexion so far has been mere make-believe. I am sorry to have to criticise in this manner Bills which have been introduced by the Government I support, but the truth must be told. The fact that no use has been made of the legislation which we have already passed obliges me to say that if when it becomes law this measure is to be allowed to remain inoperative in the same way, it will not be worth the paper it is printed on. Certain outrages have been committed by Germans, and we are anxious to get level with them.
– I am not anxious to come to their level.
– I do not think that the honorable senator could possibly come down to their level, and I did not suggest anything of the kind. We are all anxious to hit backwhen we have been attacked, without proving ourselves to be as degenerate as the Germans. I hope that we shall be able to do something of that kind under legislation of this sort. We have already given the Government power to take action in regard to enemy patents, and so far nothing has been done. Unless they make up their minds to be a little more in earnest in future than they have shown themselves to be in the past, they might as well shut up shop and pass no more of this emergency legislation. Apart from this view of the matter, we are all anxious to have as much work done in this country as possible. We know that the Free Traders have sunk their principles and hauled down their flag, until to-day it can ‘be said that throughout Australia Ave are all Protectionists.
– We are all highrevenue Tariffists.
– Yes, we put up the duties as high as we can.
– So as to save the land-owners from taxation. We protect the land-owners.
– I can assure my very ardent land-taxing friend that that is certainly not my object.
– That is the effect of the honorable senator’s work.
The DEPUTY PRESIDENT. - Order! At the present time we are discussing a Bill to amend the Patents Act, and it’ seems to me that the questions of Free Trade and Protection and land taxation are not relevant to such a Bill, and Imust therefore ask honorable senators not to discuss those subjects.
– This is a Bill to give protection to Australian manufacturers who may desire to use German patents, and therefore the remarks I have made in connexion with it are entirely relevant to the subject.
The DEPUTY PRESIDENT. - References were being made to land taxation.
- Senator Grant is so ardent a land taxer, and is so ready on all occasions to bring forward his favorite topic, that perhaps we should deal delicately with him. If we are to do nothing to interfere with patents belonging to the subjects of the countries with which we are at war, our industries will be placed at a very great disadvantage. If there is one patent which more than another has come under consideration during the discussion of this measure, it is that for what is known as the thermit welding process - a process for the welding of steel and iron, which is used to a very great extent in the construction of tramways. We have had, and have at the present time, a considerable amount of tramway construction going on in Australia. The patent to which I refer is the only effective patent in existence, although it represents by no means the only invention connected with the business, and if the thermit welding process is not used, the effect must be to put a stop to a very great deal of work which was going on before the war started. If we concentrate our attention upon this matter we shall better understand the real reason for the introduction of this Bill. We are all anxious to see use made of every German patent in Australia, for the benefit of our own industries. But I am sorry to say that the right to use this thermit welding patent has been safeguarded by the Government in a manner that is scarcely credible. Up to the present time all the protection which the Commonwealth can give to it has been given to it.
– To whom?
– To the German patentees.
– I will take the trouble to answer the honorable senator, and I will show that he is quite mistaken. I know that, he means well, but he is mistaken.
– I thank the Vice-President of the Executive Council for his acknowledgment that I mean well, but I can assure him that I know exactly of what I am speaking. I know well,in addition to meaning well.
– I will show the honorable senator that he does not know what he is saying when he declares that the German patentees have been protected. As a matter of fact, the patent has been suspended, and is now the property of the Commonwealth.
– If the VicePresident of the Executive Council can throw any light upon this matter, I shall be glad. My information is that, from the time the patent was suspended, no use whatever has been made of it in Australia. It is quite true that a certain Government official has been granted a licence to use it; but that officer has no. work upon which it. can be utilized, and; consequently, no use has been made of it. Yet private individuals have been refused alicence to use it.
– The officer to whom a licence has been issued represents the Commonwealth.
– He has made no use of it, and yet applications for a licence by private persons who desired to make use of it have been refused. That is my charge against the Government; and ifthe Vice-President of the Executive Council can answer it, I shall he very pleased. If no more use is to be made of this patent by the Government than has already been made of it, the war will have concluded before it can be utilized to our advantage. Time is a very essential factor in this question, because as soon as the war terminates, this legislation will cease, and the patentees will then be able to take action in our civil Courts. The moment peace is proclaimed this measure will become so much waste paper. Before going further, I would like to directattention to an amendment which has been made in the Bill in the other Chamber. The effect of the adoption of that amendment will be to prolong the delay of which I am complaining. To my mind, it is a very foolish amendment, inasmuch as it will permit of the continuance of that sort of litigation which is now occupying the attention of a civil Court in Adelaide, where the action of a German in trading with the enemy has been challenged. Whilst such legislation may prove profitable to the lawyers, the litigation it provokes is certainly not edifying to the country. I hold that if, under sub-clause 2 of clause 4 of this Bill, the holder of any patent is. empowered to go into Court and defend his patent right, there will be no end to litigation. The result of such legislation may be delay, until it is impossible to take action owing to the termination of the war. If the object of this legislation is defeated, it will be due to the amendment to which I have directed attention more than to anything else. I trust that the Government will see their way to restore the Bill to its original form. I am afraid that the Attorney-General exhibited too much readiness to listen to the critics of the measure in another place, instead of boldly standing by its provisions. Regarding the thermit welding process of which I have spoken, I question if the Government hadauthority to do what they have done. Under the Act which we passed last session, any person was empowered to apply for the suspension of an enemy patent. At least two gentlemen who are well known in the Commonwealth made application for the suspension of the patent relating to the thermit welding process. I refer to Mr. Teesdale Smith and Mr. HenryChinn, both of whom are interested in tramway construction. Mr. Chinn has been working on an invention of his own, with a similar object in view, for quite a considerable time, but, because of some lack of originality, he failed to obtain a patent for it. The raw material for his invention is produced in Australia; whereas the raw material for the thermit welding process has to be imported from Germany. A German named Goldschmidt is the principal in the Thermit Limited, Sydney, and another German is the manager. As a matter of fact, ninetenths of the shares in the company are held by Germans. Strange to say, this patent has been dealt with in Australia in rather a peculiar way. Probably it is within the recollection of honorable senators that when certain charges were made against Mr. Chinn in another place, it was alleged, amongst other things, that he had infringed a particular patent. The patent in question was the German thermit welding process patent. When those charges were investigated by Mr. Justice Hodges, who was appointed a Royal Commission for the purpose by the then Fisher Government, it was found that there was no substance in this particular allegation. Mr. Justice Hodges reported that Mr. Chinn was quite justified in his action, having done nothingwhich he was not entitled to do under the law. It will be seen, therefore, that this thermit welding process has something of a history. After the Act of last year was passed, Mr. Teesdale Smith and Mr. Chinn applied for a voidance of the thermit welding process patent. That patent was suspended ;but, instead of the applicants being granted a licence to use it, a licence was issued to a person who was not an applicant at all - I refer to the Engineer-in-Chief of the Commonwealth railways. Had the Governmentintended to make use of that licence for the public benefit, there might have been some justification for their action in straining the law, as they undoubtedly did.
– The Government have not refused private persons the right to use the patent.
– Would the Vice-President of the Executive Council have private persons incur the risk of using a patent without legal sanction, and after they have been refused a licence? If the Government desired to use the patent themselves, why did they not do so? In Sydney a licence to use a German patent was granted to a private citizen named Tonks. Yet the issue of a similar licence to. Mr. Teesdale Smith and Mr. Henry Chinn was refused. I cannot understand the reason for this differential treatment.
– A licence to use this particular patent was not given to Mr. Tonks. Another patent was involved in his case.
– I know that. The same consideration should have been shown to Mr. Teesdale Smith and to Mr. Chinn as to Mr. Tonks, who was successful in his application for another patent. I know that at the time Mr. Smith and Mr. Chinn applied for the avoidance of the thermit-welding patent they both had works on hand in connexion with which this patent could have been used. Mr. Teesdale Smith had a tramway contract running from Malvern down through Glenhuntly past my door, and consequently he could have used the German patent there, but a licence was refused. I know, also, that Mr. Chinn had several contracts waiting, and it was most unsatisfactory that his application should have been refused. Altogether, he has been harshly dealt with by the Government, for he was thrown out of employment on the transcontinental railway and has had no means of obtaining employment since then. The fact that he was refused a licence for this thermit-welding process does not redound to the credit of the Government or of the Attorney-General, and, in view of the fact that Mr. Tonks was given a licence for a German patent, I cannot understand why Mr. Chinn was refused.
– Quite a number of other people have applied for licences. It is not a personal matter.
– I hope that we will do something in connexion with German patents, and that the Government mean business; but, judging from the remarks of the Attorney-General in another place, I am afraid that this is not the case. We find that Mr. Hughes, when speaking on the second reading of the Bill in another place, seemed to be anxious to safeguard these German patents, for he said -
The right of action for infringement was gone. But it has not gone permanently.
That is to say, if we can interpret the remarks of the Attorney-General correctly, it would be possible to take civil action at the close of the war against any person who used a patent. The AttorneyGeneral added -
It has gone only during the war, or during the period of suspension or avoidance of the patent. After the war, patentees will be able to call to account any person, who, without their permission and without licence from the Crown, has infringed their patent.
I think that the Vice-President of the Executive Council will see that, had Mr. Chinn or any other private person infringed a patent by using it without a licence, he would, under this Bill, have laid himself open to litigation as soon as the war was over. That is not the way to encourage enterprise in any shape or form, because people will think twice before they make use of patents, in view of a probable penalty being inflicted upon them at the close of the war.
– That is not in consequence of any law that we are passing, lt is the established practice amongst the nations.
– I am sorry w© are not making an effort to preclude the possibility of action in the future for infringement of an enemy patent.
– Would the honorable senator confiscate these patents altogether ?
– Yes, I would ; and I would make no apology for it at all while we are at war; besides, “ a licence “ is only another name for “ confiscation.”
– But not even Germany is doing that.
– We are not in a position to say what Germany is doing, but we can imagine what is the attitude of that country towards British interests.
– Great Britain has not confiscated a single enemy patent.
– That is no reason why it should not be done in Australia. I question very much whether the honorable senator can say what Germany has done, or is doing, with regard to British interests.
– Germans appear to have more regard for private property than for human life.
– Yes, that is the position as disclosed by recent reports. It is a farce to talk about not confiscating German property in the face of all that is happening. I want to refer honorable senators to another statement made by the Attorney-General regarding this Bill-
It thus safeguards, to some extent, the rights of patentees as well as those of licensees. Whatever be determined as to the distribution of royalties collected under the amending Act of 1914, the patentee whose patent has been suspended or avoided is placed by this Bill in a better position to recover after the war whatever he may be entitled to.
This statement shows, then, that by this Bill we are actually placing patentees in a better position than they were in before the war. For instance, if any honorable senator applied for and got a licence to use the thermit process, according to the Attorney-General the German company would at the close of the war have a legitimate ground for action for infringement of the patent, and would be in a better position under this Bill than it would have been formerly.
– What encouragement is there, then, for a licensee to take up a matter of this kind? None whatever.
– The Bill is simply a make-believe; it is a pretence that we intend to do something when we actually intend to do nothing.
– Worse than nothing.
– It is evident that nothing will be done under the Bill. The right to use a German patent was given in the Act passed last year. Although the thermit-welding patent was suspended under the Act of 1914, nothing has been done.
– I will prove to the honorable senator that he is mistaken in this matter.
– Well, I will hold my opinion until the Minister disproves it. I say absolutely that nothing has been done in connexion with the thermitwelding patent since it was placed in the hands of the Engineer-in-Chief.
– That is a different statement.
– I am afraid the honorable senator is not as conversant with the matter as I am, or he would not have made that interjection. I repeat that nothing has been done with the patent up to the present.
– The patent has been avoided. Is not that something? It was given to a Commonwealth officer in the interests of the Commonwealth.
– Well, what has he done with it? It has been of no earthly use whatever so far, because it has not been used. I do not blame the Engineer-in-Chief, I blame the AttorneyGeneral for having given the licence to “a person who has no use for it.
– It has not been given to any person at all; it has been kept by the Commonwealth.
– It would have been just as well if the Government had wrapped it up in lavender for all the use it has been to the Commonwealth; and I repeat that this Bill does not mean business.
– It seems totally unnecessary.
– As a matter of fact, under the Act passed last year a private person might risk using an enemy patent without any penalty in the way of a fine, but, under this Bill, not only will the infringer be responsible to the patentee after the war, but at the present time the Government might come down and fine him £500 for daring to use the process.
– He cannot use it without a licence from the Government.
– But, under the Act passed last year, there was no penalty provided, so that by this measure we are safeguarding the German patentee to a greater extent than was the case under existing legislation.
– Does the honorable senator want enemy patents avoided altogether ?
– Yes; I want to see a law passed so that persons may use those patents for the benefit of the country without any risk to themselves. Referring again to the applications by Mr. Teesdale Smith and Mr. Chinn to suspend the thermit patent, I might remind the Senate that, after the first or second day of the hearing, Mr. Teesdale Smith withdrew, and Mr. Chinn went on. He fought the case at considerable expense to himself, and, in the end, he was refused the licence. My information concerning this thermit-welding process has been obtained from the best authority, and I am interested to know what the Vice-President of the Executive Council, who is in charge of this Bill, will have to say in answer to my statements. Notwithstanding hissuccessful action against the German patent, Mr. Chinn obtainednot the slightest benefit, because he was refused the licence.
– I thank honorable senators for their criticism of the Bill. The chief point of Senator Heating’s criticism was whether it will be wise to allow the Bill to go through with a provision for penalties to be obtained by only the Attorney-General. I do not know whether I am not in agreement with him; but, as he hinted, with a great knowledge of measures of this character, further legislation may be needed. If the Government find that such legislation is necessary, that almost apparent defect may be remedied.
– If you do that, for goodness’ sake consolidate the Patent Acts. We do not want to have to refer to halfadozen Acts.
– It is always easy to make a suggestion of that kind, and there is always a very drastic method of doing anything. This is urgent legislation which is required for war time only, and, in the anxiety to do extreme things in the time of war, it is not wise, I think, to bring down a comprehensive measure dealing with many personal interests. The course we have taken is, perhaps, better than the more free-and-easy method of settling the matter at once by a consolidating measure. I think that in the interjection of Senator Bakhap there is also an indication of the feeling of Senator de Largie.
– No; I think it is always pernicious to have many amending measures on the statute-book. They ought to be consolidated with the original measure.
– In connexion with hurried legislation of this kind, if one could foresee the difficulties which the experience of a few months’ practical working may discover, we might resort to that method ; but even with comprehensive legislation such as suggested by the honorable senator, the experience of perhaps a week might discover a defect, even in a direction to which much thought had been given. However, I think, with Senator Keating, that a penalty of £500 for the infringement of a patent, to be obtained by the Government through the Courts, is perhaps unjust to the licensee, who maybe expending large sums of money in producing an article, and would have his business considerably interfered with. That aspect of the matter will receive attention. At present I am bent upon getting this Bill through. It is necessary for me to refer to some statements by Senator de Largie. He commenced his speech by assuring us that he was friendly towards the measure. I feel rather pleased that there are not many more friends like the honorable senator here.
– I said that I was friendly towards legislation in regard to patent rights, not towards this measure.
– The honorable senator made the sweeping statement that the Bill we passed some months ago was so much waste paper, and that nothing had been done under its provisions. I interjected, perhaps somewhat rudely, that the statement was not correct, because much’ has been done under that legislation. I will come right to the very patent to which the honorable senator referred, and that is the patent for the thermit welding process. The Government have suspended that patent, and taken it out of the hands of the Germans. When the honorable senator reads his proofs he will see that his earlier statement would lead the Senate and people outside who read his speech to believe that the Government werereally conserving the interests of the Germans interested in the patent. But that is not the case.
– The Government have safeguarded their interests.
– The Government have suspended the patent, and placed it in the hands of a Commonwealth official, in the interests of the people.
– They have suspended the patent, and have not used it.
– And they have threatened the licensee with damages if he uses it. That is a peculiar way of providing for the use of a patent.
– I can see that Senator Senior is following the lead of Senator de Largie, and is not giving that attention to facts which he generally gives iri regard to a statement of that kind. The position is not that we have not safeguarded the interests of the licensee. Under the first amending Act which we passed it was found that if a patent were voided, then, any one could make use of the patent, and no penalty was provided.
– Why should he not?
– Let me answer one question at a time. Experience in connexion with our legislation taught us - although we did not intend it - that when patents were voided and licences were given to persons to take them up, any person not licensed could set to work in competition with those who were licensed. Therefore, we introduced this Bill, which makes it an offence for any one else to interfere with the use of a licensed patent.
– And the man who gets a licence may do nothing.
– The man who gets a licence is to be protected, because the Attorney-General will have power to take proceedings against any person infringing a patent and a licence.
– The licensee in the case to which I referred is not using the patent, and we are going to safeguard his interests. .
– This Bill only needs to be read by any person to see the justice of its provisions. We discovered, as I said, a defect in the first measure, and that is that, after voiding a patent, any person except the original patentee could use it. We remedy that defect by providing that the Attorney-General may take action, and imposing a penalty of £500 upon any person infringing a patent or the rights of a licensee. In regard to the patent for the thermit welding process, Senator de Largie said that the Government had done nothing. If he considers that the annulment’ of the rights of the German patentee is nothing, he is entitled to his views. If he says that the vesting of that patent in an officer of the Commonwealth is .nothing, he will find it difficult to get others to believe him. Now, what was the position of the Government in regard to this case? I am sorry that the honorable senator introduced the personal element into the discussion.
– Do not be sorry for anything I may do ; be sorry for yourself.
– I am sorry. The honorable senator, unfortunately, introduced the name of one of the applicants for a patent, and seemed to think that Mr. Teesdale Smith-
– I mentioned two applicants.
– Very well; but I want to deal with one of the two applicants. The honorable senator seemed to consider that, because of past services rendered to the Commonwealth Government, because of hardships inflicted upon him by the Commonwealth Government, further consideration should have been given to one of the applicants; but what is the real position regarding this particular patent? It is generally used by the State Governments in welding rails for the tramways. Would it have been a wise act for the Commonwealth Government, altogether apart from whether it was Mr. Teesdale Smith or Mr. Chinn, to hand over to a private person a monopoly, the chief users of which are the public of this country ?
– In any case, granting a patent means actually guaranteeing a monopoly to the person who uses it.
– Of course it does. When this German patent was voided, instead of giving a monopoly to a private person, whether it was Mr. Teesdale Smith or Mr. Chinn, we maintained the monopoly as the right of the Commonwealth, and in the interests of itS people, especially as its chief users are the people of the States in the shape of the State Governments.
– And the State Governments are not forbidden by the Commonwealth to use the patent.
– Not only that, but they can use the patent on the payment of 10 per cent., which goes into the coffers of the Commonwealth.
– Who is using the patent?
– The Government of New South Wales are largely using this process in the welding of rails. So far as I know, the chief users of the patent will be the State Governments in Australia. That, I hold, is one of the patents for which a monopoly should not have been given to any private person. I can quite understand the eagerness of a private person to get a patent for the process. I can quite understand that a private person imagines that he is suffering a great injustice when he does not get a patent for it. But 1 ask honorable senators to give their attention to that aspect of the question, because we are charged by Senator de Largie with having done nothing under the recent legislation. What we did in this particular case was, instead of handing over the patent to Mr. Teesdale Smith or Mr. Chinn, to maintain it for the Commonwealth of Australia, and not for a German patentee, and the Commonwealth is permitting the use of the patent. The licensee is Mr. Bell, the Engineer-in - Chief for Railways. The licence was not given to him personally, but as an officer of the Commonwealth.
– Do you say that he has extended the use of the patent to New South Wales?
– The Government of New South Wales are using the patent in connexion with their tramway system in Sydney.
– Have they got the consent of the Commonwealth EngineerinChief to do that?
– I do not intend to go into details.
– Certainly not.
– But the Government of New South Wales are using the process.
– Why not be straightforward in the matter?
– I shall always be pleased to be put in comparison with the honorable senator as to who is the more straightforward in debate.
– You are not now.
– If it is not sufficiently straightforward for the honorable senator, I think that most honorable senators will recognise that the Government have done something, and that it has enabled the owners of the State railways to use the process without having to pay undue royalty to a private individual.
– It is not used on the railways.
– The Commonwealth Government have only voided the patent during the time of the war. They are really caretakers for the German patentee.
– We have done what the first amending Act gave us. power to do, and that was to void the patent during the time of war, and for such other period as we might issue a licence for. If the expenditure of a large sum is required for the erection of a plant to work any particular process, the Government will issue a licence which will carry the user over a period considerably beyond the duration of the war.
– But they havenot done so.
– I have shown clearly, I think, that in this particular case we have not only not done nothing, but done something very considerable in. the interests of the people of the Commonwealth. We prevented a private person from getting a monopoly of a process which is chiefly used for, and directly paid for by, the State Governments. Other patents have been dealt with, but I do not propose to read out a list of them. There was, for intance, the patent granted to Mr. Tonks to manufacture glass pavements, if I may use that term, for lighting basements.
– Why did not the Government take that over?
– The honorable senator compared our action in that case with the refusal of a licence to Mr. Teesdale Smith and Mr. Chinn. Mr. Tonks, who is engaged in manufacturing the article, was given a licence because he did not, so far as I could see, trespass upon the interests and the rights of the people of the Commonwealth.
– Where do the municipalities come in ?
– If we had imagined that Mr. Tonks would be placed in a position to take undue advantage of the people, he would not have gota licence.
– The municipalities will have to go to Mr. Tonks to get the right to use the patent.
– There is no question about that.
– What difference is there in the municipal trams having to go to any one to get the right to weld iron?
– Is Mr. Tonks a glass manufacturer ?
– All these matters were fully investigated. The capacity of an individual to conduct the business and give a fair service to the community was very closely inquired into by a Board. Let me now get to the question of lysol, in further answer to the statement of Senator de Largie that nothing has been done. Lysol is one of those chemical preparations which are used in almost every household in the Commonwealth. Four persons have been licensed to manufacture the article. The licences were granted after a public investigation. It was unnecessary to give one person a monopoly. It was necessary to let persons manufacturing the article know that if they incurred an expenditure in the erection of plant, they would be safeguarded to some extent.
– Can you give the names of these people?
– I am sorry to say that I have not got the names here. The royalty for a licence in regard to the ferro-prism patent would be10d. per superficial foot, or about 10 per cent. on the cost of the article.
– Which the municipalities have to pay.
– It is paid by the Commonwealth Government, and surely if any profits accrue from suspended patents, that is the body most entitled to them, because the money will be held in trust for the people.
– Why did you not do that with thermit ?
– I thought I dealt sufficiently with that question. I admire the honorable senator’s pertinacity, but wish he would exercise it in a better cause. The royalty in the case of lysol is such sum as the Minister from time to time fixes, but not exceeding 10 per cent. on the cost of the article. The chief intention of the measure is to enable the Government to protect the people to whom they issue licences, by preventing outside persons competing with them.
– Then you take up the position that if one man gets a licence to cut timber no other man should have a
– That is not the position. In many cases these licensees will have to spend a large amount of money to produce the article. If there was no guarantee of security against outside competition the chances are that the public would not get the article, or would get one inferior in quality.
– Does not the heavy penalty of £500 seem an almost absolute protection to a licensee for his monopoly ?
– That is why we are proposing a penalty of £500.
– Then the Government arereally barracking for the monopolist ?
– Nothing of the kind. Under the ordinary patents law the patentee had a monopoly.
– Why in time of war safeguard German patents to a greater extent than is done in ordinary times ?
– The Government Have in no way safeguarded German patentees. Not only have we not safeguarded and protected the German patentee of Che particular article in which Senator de Largie is chiefly interested, but we have already avoided his patent, the use of it is at the disposal of the people, and the profits accruing from it are going into the coffers of the people. Senator de Largie seems to have an impression that in all our war legislation we should aim at getting even with the Germans. We have adopted a more farreaching and effective method by sending our men to meet the Germans on the field of battle, where we shall eventually win out. Some people would like to stick pins into all the Germans they see. That would give them pleasure and the Germans pain, but it would not add to the reputation of the British people or bring us a day nearer ultimate victory. We have introduced this legislation because it is the most effective and straightforward way of dealing with enemy subjects, who by thelaws of nations are not permitted to trade in this country during the time of war.
– And nobody else is allowed to use their patents.
– The honorable senator is not in his ordinary frame of mind which enables him to take reasonable views. He appears to have allowed the thermit patent to overshadow everything else, and, perhaps, because the patent did not go in the direction that he wanted it to go, he is inclined to find fault generally. I hope the Senate will recognise that we have used the powers conferred on us a little more than six months ago to conserve the rights of the people, and I trust it will agree that we are not asking too much in seeking for power to further protect the persons to whom we issue licences.
Question resolved in the affirmative.
Bill read a second time.
Clause 1 agreed to.
Amendment (by Senator de Largie) proposed -
That “section” be left outand “Act” inserted.
.- The effect of the amendment’ would be to make retrospective the offence of infringing the right of a licensee. “We do not want to do this. So far, it has not been an offence to infringe the licensee’s rights. We propose to make it an offence from the time of the passing of this measure. We therefore oppose the amendment.
– These are not ordinary times, and this is not ordinary legislation. In ordinary circumstances none ofus would wish to make legislation restropective, but the position to the lay mind with regard to enemy patents has up to date been very obscure. We should safeguard any one who has innocently infringed a doubtful part of the law, especially when the Government themselves areresponsible for the obscurity.
– Your amendment so far from safeguarding a person who has hitherto infringed a licence will actually make him liable to a penalty of £500.
– That was not my intention, and if the Minister does not see his way to accept the amendment I shall not press it.
– I see the amendment as the Minister sees it. It might make the person who has hitherto been innocent liable to prosecution for something done before the passing of the Bill.
Clause agreed to.
Clause 3 -
After section 3 of the principal Act the following section is inserted : - 4. (1) Where a patent, or the registration, and all or any of the rights conferred by the registration, of a trade mark or design, has been suspended in favour of any person, any person other than the person in whose favour the patent, or the registration, as aforesaid, has been so suspended, who during such suspension -
in the case of a patent, makes, uses, exercises, or vends the invention forming the subject-matter of the patent, or shall be guilty of an offence.
Penalty : Five hundred pounds.
– I move -
That the following proposed new sections be added at the end of the clause : - “5. The Minister may, if in his absolute discretion he thinks lit so to do, in the order granting or refusing any application under this Act for the avoidance or suspension of a patent or licence, or by a subsequent order, award costs against any party (whether successful or not) appearing at the hearing or inquiry held upon the said application.”
Any sum ordered by the Minister to be paid as costs may, in default of payment, be recovered in any Federal or State Court of competent jurisdictionas a debt due by the person against whom the order is made to the person in whose favour the order is made.”
I submit this amendment for the purpose of safeguarding the rights of applicants for the suspension or avoidance of a patent. They have in the past been in a very difficult position. A person who desires to use any of the patents which are dealt with under this measure should be given every facility to approach the tribunal dealing with the matter as cheaply and as easily as possible. I am aware that the successful applicant for the suspension of the patent for the thermit welding process, to which so much reference has been made this morning, secured legal assistance and was at considerable trouble and expense in prosecuting his application, but after he was successful the licence to use the patent was given not to him, but to a third party, who had made no application for the suspension of the patent at all.
– But who was a representative of the Commonwealth.
– That is so, and, notwithstanding all that the VicePresident of the Executive Council has said, I quite agree that the Government should keep the operation of this patent in their own hands, provided always that, having got it, they make use of it. According to the Act as it stands, only one party is entitled to a licence to operate any of these patents, and that person isthe successful applicant for its suspension. As there was only one successful applicant for the suspension of the patent referred to, it was, in my opinion, an injustice to that applicant to refuse him the licence. Should my amendment be agreed to, if a similar case arose in the future, the person who went to the trouble and expense of successfully prosecuting an .application for the suspension of a patent might at least look forward to recovering the costs he had incurred. In the case which has been referred to, the patent was held by a wealthy German company, established and carrying on business in Australia under an English name - the Australian Thermit Welding Company Limited. The man who came forward to fight that company, and was successful in his application for the suspension of their patent, ought at least to be given the expenses he incurred in prosecuting his application.
– In the first of the proposed new sections the honorable senator uses the words “ whether successful or not.”
– That refers to the applicant’s success or otherwise in securing the licence after he has succeeded in his application for the suspension of the patent. I consider the amendment a really necessary one, and one to which the Government can take no exception. Under it, whoever may get the licence will be able to work the patent, and the applicant for the suspension of the patent, though he may not secure the licence, will not have his work for nothing.
– How would he collect his costs?
– That is a matter for the successful applicant to decide for himself.
– The honorable senator is proposing to give him only a dead sea apple, after all.
– If Senator Bakhap were aware of the substantial position of the German company to which I have referred, he would not say that.
– The costs could be collected later on.
– That is so. I am submitting an amendment which, should encourage people to do useful work of this kind, as they would know that they might have recourse to theCourts of the country to recover their expenses in successfully applying for the suspension of enemy patents. I have made a reasonable proposal, which I think the Government should accept.
– I suppose that honorable senators, in introducing Bills, are responsible for the form in which they are introduced, but personally I have no objection to Senator de Largie’s amendment, since its object appears to be to confer more power on the Minister under this Bill and to make him absolute master of the situation. I am prepared to accept the amendment if the Committee force it upon the Government. Senator de Largie says that this is a reasonable amendment, and there is always a certain amount of reasonableness about a hard case. It proposes to- give powers to the Minister which, in ordinary circumstances, Legislatures are not inclined to give to any Ministers. I take the moving of this amendment, especially coming from Senator de Largie, as a most friendly act. It goes to show that the honorable senator has absolute confidence in the present Government.
– It is a temporary power, to be used only .for a short time.
– I recognise that this is an emergency measure. In another place, when a measure was submitted to deal with cases of the greatest emergency, considerable exception was taken to the powers proposed to be given not to a single Minister, but to the whole Government. It is a kind of embarrassment of riches to have powers thrust upon us in the way proposed by Senator de Largie. I shall, as Minister in charge of the Bill, call for a division on the amendment, should that be necessary, but personally I can take no strong exception to the proposal if a majority of honorable senators see their way to grant powers to the Minister under this Bill which are not usually granted without protest, and with which it may not be wise to intrust to a Minister.
Senator BAKHAP (Tasmania) laws are indications of a high degree of civilization. We do not find them amongst savage communities.
– The honorable senator is not quite correct, because there are a great many patents in Germany.
– No one will deny that the Germans possess a very great deal of technical skill and scientific knowledge. Many prominent orientalists attribute eastern stagnation to the fact that never in the history of any oriental country has there been such a thing as a patents law. The possessors of inventive ability in such countries have been discouraged, because when a man invented anything it became at once the property of the public, and he derived no pecuniary advantage from his invention, unless it was one the secret of which might be held solely by himself. In revolutions and turmoils in those countries, whole families disappeared, and with them the secrets of many inventors. Modern civilization is particularly distinguished by the endeavour to preserve for an inventor the power to profit by his invention. This condition of things has been interfered with by the existence of the war. But the war as we are waging it is to maintain, and not to subvert, civilization, and we have to consider what will be the condition of things existing when the peace for which we all hope is declared. Some people are sanguine enough to believe that peace will be declared in two or three months’ time, and others, who are not quite so optimistic, believe that it will be declared in a year or two. We all hope that ultimately we shall enjoy a fairly permanent peace. There are British holders of patents which are no doubt suspended in Germany at the present time, but when peace is declared I think that all patentees will expect to be treated upon civilized lines, and to be re-established in possession of the rights enjoyed under their patents.
Sitting suspended from 1 to 2.30 p.m.
– I am one of those who believe that it is necessary for us to defeat our enemies in the present struggle by force of arms. It is repugnant to one’s idea of justice to affirm, not only that an enemy patent may be voided on the application of one of our own people, but that damages may be awarded against the holder of that patent. This somewhat-to-be-deprecated policy will certainly cut both ways, for I assume that there are British holders of very lucrative patents in Germany, and if we attempt to put into force legislation of this character, the Germans will be sure to retaliate tenfold.
– We ought not to shoot a German for fear that he may shoot a Britisher. That is the honorable senator’s argument.
– I do not agree with the honorable senator. May I ask him against whom the Minister will have power, under this amendment, to award costs ? Against the patentee, who, in the very nature of things, will not be able to appear during the proceedings.
– Of course he will. The Thermit Welding Process Company has its head-quarters in Sydney.
– As a matter of fact, it is part and parcel of our policy to void enemy patents if we are prepared to use them. But it is not consonant with my idea of justice to say that after an enemy patent has been suspended’, or a licence has been issued to one of our own people to use it, the successful applicant shall be awarded costs against the patentee.
– If the applicant does not get a licence he is not successful.
– The honorable senator has already told us that an applicant may be successful in getting an enemy patent suspended without being successful in securing a licence to use it. The proper authority to recompense any applicant who secures the voidance of a patent is the Commonwealth Government.
– I want to make the Germans pay.
– The application of such a principle is repugnant to civilized thought. If thatis the intention of the honorable senator’s amendment, I am afraid that I cannot support it. If the Commonwealth is going to suspend an enemy patent, but is not going to issue a licence to a private individual to use it, obviously the Government intend to derive some pecuniary benefit from it. In that case, I am willing to empower the Minister to grant the successful applicant at least his expenses. We have no accurate knowledge of the im- portant patents which are held in Germany by British subjects, and if we enact this sort of legislation, we may find some British inventor, who has sweated his brain for years in perfecting his invention, invoking curses upon our heads.
– Does the honorable senator think that the German Government will be afflicted by any scruples?
– The German Government is certainly very unscrupulous in the methods by which it wages war, and I believe that some of its financial dispositions have worked out greatly to the injury of British manufacturers. But when peace is restored, I have no doubt that patentees in that country will be reestablished in the position which they occupied prior to the outbreak of war. We must recollect that, as patentees, they have committed no crime, and it would be a retrograde step to penalize men who have been guilty of no offence, but who happen to be the possessors of processes which we believe should be utilized for the benefit of this country.
– That kind of logic cannot be applied to the German nation.
– I am not aware that the German Government are penalizing the foreign holders of patents in the direction outlined by this amendment.
– A country which will order its men to sink a vessel like the Lusitania is not deserving of any consideration at our hands.
– Will not substantial punishment have been meted out to German patentees if their patents are suspended during the period of the war? I do not think that a satisfactory case has been made out for penalizing the holders of German patents in the manner that is proposed. I cannot support the amendment.
Question - That the words proposed to be added be added - put. The Committee divided.
Majority … … 10
Question so resolved in the negative.
– I do not know whether I shall be in order in referring to the. penalty of £500 which is provided under this clause. In my opinion, it is far too high, seeing that it will be operative only for a very limited period.
– I would point out to the honorable senator that the Committee has already decided against an amendment to add words to clause 3, and consequently he will not be in order in discussing the penalty at this stage. His proper course is to vote against the clause.
– I shall do that.
– I hope that the honorable senator will not vote against the clause, because very big interests will be involved, and the Bill makes no provision for a licensee taking action on his own behalf. Consequently, it might pay a man to infringe the licensee’s right, in which case a penalty of £500, instead of being too large, would be too small.
Clause agreed to.
Title agreed to.
Bill reported, without amendment; report adopted.
Bill read a third time.
. - I move -
That this Bill be now read a second time.
The measure provides for the transfer to the Commonwealth of 18,000 acres of land, some privately owned, but the great bulk owned by the State of New South Wales. As honorable senators are aware, when the Federal Territory was transferred from New South Wales to the Commonwealth Government, full powers over all land were vested in the Commonwealth. It has been found advisable that the Federal Government should secure control over the land connecting the Federal Territory with the sea, and, therefore, it is proposed, under this Bill, to vest those powers in the National Government. The Naval College is on the property, and, of course, dockyards and other buildings required for Commonwealth purposes will be constructed in due course. This new territory will come under the provisions of the Commonwealth laws, such as the Commonwealth Arbitration Act and other measures. The Bill practically gives effect to an agreement on the part of New South Wales to transfer certain land to the Commonwealth, and embraces no more and no less than the act of surrendering 18,000 acres of land by New South Wales to the Commonwealth Government. The date upon which it will come into operation will be fixed by proclamation ; but as a similar Bill has passed the New South Wales Parliament it is reasonable to assume that it will come into operation at the earliest possible date after its passage through both Houses of the Federal Parliament. Under the Lands Acquisition Act there is provision to prevent private individuals from obtaining any advantage in the way of unearned increment, and that measure will operate with regard to the present Bill.
Question resolved in the affirmative.
Bill read a second time.
Clause 1 (Short Title).
– I understand that some honorable senators desire further time to look into the provisions of the Bill, and, therefore, I move -
That progress be reported.
Question resolved in the affirmative.
– I move -
That the Senate at its rising adjourn until Thursday next.
I anticipate that the business that will come from the other House will not occupy the Senate for more than two days next week, and, therefore, there will be no necessity to call honorable senators together for the Wednesday sitting.
Question resolved in the affirmative.
German Interest in Melbourne Property.
Motion (by Senator Pearce) proposed -
That the Senate do now adjourn.
– When speaking to a motion yesterday, I said I had good authority for saying that certain blocks of offices at the corner of Queen and Collins streets, Melbourne, were the property of a German company, and that the Kaiser had an interest in them. This morning Mr. GeorgeFairbairn, a respected ex-member of the other House, waited on me, and assured me that there was no truth whatever in the report. He invited me to make inquiries, so that I could either substantiate the statement I had made, or explain that it was not correct. At Mr. Fairbairn’s request, I saw the manager of the North British and Mercantile Insurance Company, as this company has the largest interest in the chief block of offices at the corner of Queen and Collins streets. That gentleman told me that there was no truth in the report. He admitted that it had been commonly reported for a number of years that German money “was in those buildings. He also said that while it was only a rumour they had nothing to contradict, and he was rather glad that a definite statement had been made which gave him the opportunity to deny it, because a statement of that kind might possibly injure an Australian company in so far that some of their tenants might feel inclined to vacate the premises if it were true. I have since received the following statement from the manager of the North British and Mercantile Insurance Company: -
In response to your request. I have pleasure’ in stating that, from my own personal knowledge, I am aware that neither the Kaiser nor any German company or individual has, or had at any time, an interest in the property at south-east corner of Queen and Collins streets. I feel perfectly sure that the same remark applies to the building known as Broken H ill Chambers, as I am aware that the principal financial interestin it is held by a Scottish life insurance company.
I, therefore, take the first opportunity offered to me to make this explanation. I am very glad indeed to learn that the report upon which I based my statement has no foundation in fact, and regret very much if loss or annoyance has been caused to any one through it.
Question resolved in the affirmative.
Senate adjourned at 3.1 p.m.
Cite as: Australia, Senate, Debates, 14 May 1915, viewed 22 October 2017, <http://historichansard.net/senate/1915/19150514_senate_6_76/>.