examination as to novelty by an officer instead of leaving the matter to be decided by the proper tribunal, when, if ever, the question is raised, are these

1. That it is impossible to say from a written document whether the invention described in it is novel or not. For instance, in Germany patents were refused for the Bessemer steel process, and the Siemen's Regenerative Furnace, as not being novel.

That is a very striking fact, and it is now acknowledged that the Bessemer steel process is one of the greatest inventions of the age.

2. That it is impossible for an examiner, however competent, to know whether an alleged in

vention is novel or not.

3. That it is unjust in the granting of patents to rely on the judgment or opinion of one individual.

4. That it gives rise to an erroneous belief in the minds of people that the Crown guarantees the validity of the patent.

Which it does not. In the United States and Germany, where the system exists, quite as many patents are set aside as in other countries, and some authorities contend that the proportion is greater.

5. That under the system patents are arbitrarily refused for useful and meritorious inventions. These being the objections, when we come to that portion of the Bill, we shall en deavour to restore it to its original form, and confine the examination as to novelty to the searching of the register, for which purpose we must have the transfer of the State Departments, and the determination of the question of whether there has been any prior application for a patent in the Commonwealth or in any State.

Mr. ISAACS. In addition to that, clause 52 enables objection to be made to the Commissioner on the ground of novelty.

Sir EDMUND BARTON.-That is so, and objection being made on that ground the objection may be examined into. In the absence of any such opposition we do not think it will be wise to have a prolonged investigation upon that subject, which would, undoubtedly, be of great. expense to inventors. In the transfer existing patent applications will not be interfered with except that the Acts will be administered by Commonwealth officials instead of by State officials, the fees, when collected on such patents and applications being received on behalf of the States. Part III. provides for the keeping of a register of patents. These are the ordinary provisions relating to a register of this nature,

and I need not detain the House in discussing them.

Mr. WILKINSON.-I think that is a very important point. Where is the register to be kept?

Sir EDMUND BARTON.-That question will arise, and it may be found, when we discuss this part of the measure, that it is not wise to have more than one central register, or more than one central examiner. It may be found wise, although not yet provided in the Bill, to have receiving offices in various parts of the States to which applicants may address correspondence and documents, and which will be in immediate touch by telegraph or otherwise with the central office.

Mr. ISAACS.-There must be one central office.

Sir EDMUND BARTON.-There must be one examination in chief, and the register must be kept at the central office, because otherwise there would be instant fusion.

con

Mr. WILKINSON.-How can we expect that mechanics, who are the principal inventors, will be able to come to the central office?

Sir EDMUND BARTON.-As will be explained afterwards, they will not be required to attend the central office in person. Part IV. of the Bill relates to procedure, and here there is some departure from the English system. Division 1 of this part deals with applications. In England and several of the States the applicant for a patent must be the "true and first inventor "-the term used in the Statute of Monopolies, Act 21 of James I.-or a person claiming under "the true and first inventor." The decisions which have flowed from this expression are, in some cases, very interesting, and I may mention one in which "the true and first inventor" was held to include an importer of an invention from abroad. Except for the necessity of giving some elasticity in the administration of an old law as time goes on, the decision was about as far from the original meaning as one could well travel. In the present day, on the other hand, the necessity for that doctrine has disappeared, owing to improved means of communication, which enable persons to deal with matters for themselves, instead of leaving them in the hands of importers. The Bill adopts the law which prevails in Victoria and Western Australia, by allowing only the "actual inventor," or some

person claiming under him, to apply for a patent. There is another important matter in the same division referring to the examination as to novelty. Until 1902 no examination as to novelty was made in England. An application could be opposed and invalidated on the ground mentioned, bat unless opposition was entered the grant of the patent issued as of course, if the application and specification complied with the conditions laid down. But in other countries, notably, in the United States and Germany, a general examination as to novelty is required. The Conference of experts, which was held in the Commonwealth, reported in favour of examination as to novelty to the extent of ascertaining whether the invention had been previously patented or had been the subject of a prior application for a patent. Curiously enough, a committee appointed by the Board of Trade in England arrived independently at the very same conclusion. It is now recognised almost universally that some examination as to novelty should be male, and the question is as to how far this examination should go. There are many grave objections to the practice prevailing in the United States and Germany of requiring a general examination as to novelty. The Bill, as introduced in the Senate, followed the recommendation of the Conference of officers, but an amendment was carried providing for a general examination as to novelty. This was a departure from the general scheme of

the Bill, and I think that this House, in its wisdom, will restore the measure to its original form. Division 2 of this part of the Bill provides for wide grounds of opposition. Any objection on which a patent could be upset after the grant may be taken before the grant issues. This provision, coupled with the examination as to previous patenting, will afford the best security that can reasonably be provided that the patent when granted will not be open to objection. Division 3 provides for the effect of the patent and its duration. The term fixed is fourteen years, as in England and all the British dominions, except Canada, where the term is eighteen years. Division 4 relates to the amendment of specifications, and follows the English law, so that I need not trouble the House at any length, especially as this and many other parts of the Bill are essentially for consideration in Committee. Division 5 provides for the a patent, and this again

extension of

follows the English law. Division 6 demands perhaps a little more consideration, because it contains a provision which has been somewhat severely criticised. This division provides for the grant of an additional patent for an improvement. This is in accordance with the recommendation of the conference, and it is purely enabling, seeing that no inventor would apply under this provision unless satisfied that his patent. would be safe if he succeeded in getting it. That, again, is a matter which will be considered in Committee, and which I do not at this stage propose to discuss. Division 7 provides for the revocation of patents, and is almost identical with the English law. A patent may be revoked in case of fraud or for other good reasons known to modern law. Part V. deals with the working of patents. This part as introduced provided for the working of patents in Australia within five years after the date of the granting of the patent, and prohibited the importation of patented articles after four years, the patent being revocable on the application of the Attorney-General if this clause were infringed, and the article were not being manufactured within the Commonwealth. That is a provision which the Senate omitted, but I think there is a good deal to be said for it, and I, or the Attorney-General when he returns, will move the re-insertion of the original clause, for which there is abundant justification. The question of free-trade and protection, in my judgment, scarcely arises, because, if a patent law were regarded from that stand-point, every free-trader would vote against every patent, which in itself is a protection and grants a monopoly. patent not only establishes a manufacturer or inventor in a better position than others in the same country or wherever the patent operates, but in regard to the process of manufacture itself gives a monopoly to a single person, and guards it for a period of time, so that there shall be no possible competition. That is the nature of the grant of a patent, and it seems to me that a provision that a patent may be revocable unless the manufacture takes place in the country where the patent is granted, is not in the direction of increasing the protection, but in the direction of taking away the protection if good ground be shown. I may mention that a similar provision is in force in Canada, Germany, and in South Australia, so that it is not

A

entirely new or without good warrant. This clause was not inserted for the benefit of the inventor, but for the benefit of the public. I may mention the further fact, which seems to be very strongly in favour of such a provision, that owing to its operation in Germany, manufacturers there were enabled to secure manufacturing rights in the case of linotype machines at a much cheaper rate than in England. The remainder of this part of the Bill follows the English law, which will be familiar to honorable members who have had occasion to look into the subject. Part VI. deals with infringements, and also follows the English law. An important provision of the Bill is that the Court may call in an assessor in any proceedings relating to an infringement; and the plaintiff must deliver the particulars of the infringement complained of, while the defendant must deliver the particulars of his objection. If the defendant disputes the validity of the patent he must state his grounds, and if one of the grounds is want of validity he must state the time and place of the previous application, or the previous use of the patent which he alleges. That is enough to show the nature of the proceeding. Clause 85 provides

In any action for infringement the validity of a patent shall not be disputed on the ground of want of novelty by reason that a patent for the same invention was applied for or granted more than fifty years prior to the application for the first mentioned patent, if the invention has not been in public use in the Commonwealth or a State at any time during such period of fifty years. Part VII. relates to the rights of the Crown, and follows modern English law. For instance, a patent under this Bill gives the same rights against the Crown as against the subject. Honorable members will be aware that under English law before modern legislation and I need only refer lawyers to the case of Feather v. the Crown the Crown was held to have a right to use and make any article subject to a patent without any payment or royalty, or compensation to the inventor. But that has ceased to be the law in England, and, of course, we propose to make a very opposite law here. A responsible Minister of the Crown, however, in administering a De partment, whether of the Commonwealth or of a State, may use an invention' for the an invention for the public service on such terms as may be agreed on with the patentee, or, in default of agreement, on such terms as may be

Sir Edmund Barton.

war may

settled by arbitration. There is a provision that the inventor of any improvement in instruments or munitions of assign the invention and the patent to the Commonwealth, and the assignment is to be valid, notwithstanding any want of valuable consideration. The next provision of consequence in this part is in clause 93, which is as follows:

The communication of any invention for any improvement in instruments or munitions of war to the Minister for Defence, or to any person authorized by him to investigate the invention, shall not, nor shall anything done for the purpose of the investigation by such person be deemed publication or use of the invention so as to prejudice the grant or validity of any patent for the invention.

Honorable members will recollect that on occasions, when the question of the Crown taking up an invention and using it for military or other similar purposes has arisen, the inventor, in many cases, has been chary of disclosing his process to the Crown or its representative, on the ground that that would be regarded as a publication of the invention, and might render the invention publici juris to the extent of depriving the inventor of his rights. It will be enacted here, if the House agrees, that no publication of that kind shall have any effect injurious to the rights of a patentee, so that where it is impossible to judge of the value of an invention except by becoming acquainted with all its processes, this provision will secure the patentee from prejudice. Part VIII. provides for the appointment of patent attorneys; and this is in accordance with the recommendations of the Conference. It is provided that persons may be registered as patent attorneys on passing the prescribed examination. Any person registered as a patent attorney may be removed from the register; and no person who has been employed as an officer in the Patent Office shall be registered as a patent attorney until he has ceased to be an officer for at least twelve months. The reasons for the latter provision are obvious. Any person who proves that at the commencement of the Act he was bonâ fide practising as a patent agent in any part of the Commonwealth, and had been so practising for six months prior to such commencement, may be registered without passing the prescribed examination, There is a penalty, which may be as high as £100, for a person describing himself as a patent attorney, unless he is registered or

entitled to practise as a patent attorney under the Act. I think that it should extend to his practising or acting as a patent attorney without having the right to do so, because obviously that would be imposing upon the confidence of the public. Parts IX. and X. contain the ordinary provisions with regard to regulations and fees. The remaining portion of the Bill to which I propose to call attention is the second schedule, which prescribes the fees to be collected. These amount to £13-£8 up to the sealing, and £5 for the renewal of a patent. At the present time, the fees amount to £5 in New South Wales, £9 in Victoria, £18 in Queensland, £8 in South Australia, £18 in Western Australia, and £38 in Tasmania. When a person wishes to patent his invention throughout Australia, he has to pay £96, whereas the fees for taking out a patent for the Commonwealth will be less

than one-seventh of that sum. Mr. WILKINSON. That is official fees?

for purely

Sir EDMUND BARTON.-I am not now referring to the payment of fees to agents or for drawings, but I shall be making a liberal allowance if I say that, in addition to the official fees, the applicant will have to pay £7 in fees for documents and drawings, bringing the total fees for a Commonwealth patent up to £20. Under the present system we may fairly allow 44 for fees in each State for a like purpose, making an addition of £24 to the £96 for official fees. That would bring the entire cost of getting a patent for the Commonwealth to perhaps £20, as against £120 to secure like rights for all the States under the present system.

Mr. ISAACS.-Only £8 have to be paid in the first instance, and £5 at the expiration of seven years, when a renewal of the patent is applied for.

Sir EDMUND BARTON.-Not more than from £12 to £15 would be payable for seven years, counting the fees to agents and fees for documents and drawings. In any event, the total cost, including agents' charges, would be probably £20 under the system we propose, whereas it is not less than £120 under the present system. I cannot put that more strongly than by quoting from a memorandum of the Board of Trade -it was presented to the Premiers' Conference last year-certain figures as to patents issued in recent years for the six Australian

colonies.

In the years set out the six Australian colonies issued patents at the rate of 2,600 a year. If I assume that under the new system only 1,000 patents a year will be issued, that will be more than a liberal allowance for the duplication of patents under the old system. Taking the saving on each patent at about £100, the total saving to the inventive persons in the Commonwealth will be about £100,000 a year. That argument alone should be strong enough to induce honorable members to give their attention to this Bill.

Mr. WILKINSON.-It is a striking illus tration of the benefits of Federation.

Sir EDMUND BARTON.-Yes. It is a striking illustration of the benefits of Federation. It is in directions such as these, which are of a practical nature, that the advantage of Union will most commend itself to, and must evoke the thanks of,

the community.

Mr. ISAACS.-In addition to that many law suits have gone on in the different States with varying results.

Sir EDMUND BARTON.-The honorent States there have been law suits reable member is quite right. In the differspecting different patents, but involving the same principle of law, and varying decisions have been given. That, of course, will be obviated under the new system. Having, in the absence of my honorable and learned colleague, the Attorney-General, who was to have conducted the Bill through the Chamber, gone through its main provisions, I do not think that I need detain honorable members any longer than to say that it is fairly drawn, and provides for a good workable law under modern principles and methods. It may, therefore, be fairly comI shall consider it an honour to this Parliamended to the judgrient of the House, and ment and the Government if, before we part, it is placed on the statute-book.

Mr. WILKINSON (Moreton). I have not the least intention of making a secondreading speech.

Mr. TUDOR. Move the adjournment of the debate.

Mr. WILKINSON.-I do not think it would be justifiable to take that course at this stage in the history of the Parliament. I think that what the Prime Minister has told us to-night would justify us in agreeing to the second reading of the Bill and discussing its provisions in Committee.

Sir EDMUND BARTON.-I promised one or two honorable members that I would not press for the second reading of the Bill to night, and they went away on the understanding that they would have an opportunity to speak next week on the main question.

Mr. WILKINSON.-If any honorable members have left with that understanding, I should like to move the adjournment of the debate.

Mr. SPEAKER.-Strictly speaking, an honorable member cannot move the adjournment of the debate after he has spoken to the main question, but, in the circumstances, 1 shall put the motion.

HIGH COURT.

Senator HIGGS.-I desire to ask the Minister for for Defence, without notice, whether he is in a position to make a statement with regard to the appointment of the Justices who will constitute the High Court?

Senator DRAKE. -I must ask the hon

orable Senator to give notice of the question.

POST OFFICE EMPLOYÉS:

OVERTIME.

SPECIAL ADJOURNMENT.

Sir EDMUND BARTON (HunterMinister for External Affairs).-I understand that it is the desire of honorable members, especially of a great many who have left Melbourne, that the House, at its rising to-day, shall adjourn till Tuesday next. The House has made very good progress this week on the Estimates and otherwise, and Ministers do not begrudge honorable members an adjournment over to-morrow. I move

That the House, at its rising, adjourn until Tuesday next.

Question so resolved in the affirmative.

House adjourned at 10.43 p.m.

Senate.

Tuesday, 22 September, 1903.

The PRESIDENT took the chair at 2.30 p.m., and read prayers.

PETITIONS.

Senator GLASSEY presented a petition from the Hope of Normanton Lodge No. 17, 1.0.G.T., Queensland, praying the Senate to prohibit the introduction, sale, and manufacture of intoxicating liquors in British New Guinea.

Senator STEWART presented a similar petition from twelve electors of Queensland. Petitions received.

land have not received that portion of their earnings known as mail money, overtime, and Sunday pay since 30th June last, and, if so, will he take such steps as will enable the officers to draw all moneys due to them, and to get prompt payment of their full earnings regularly in future?

Senator DRAKE.-My honorable colleague, the Postmaster-General, informs me that he has this and similar matters under consideration, and that he is preparing a precis for submission to the Cabinet, with a view of inquiring into the grievances, and if they are shown to be well founded, endeavouring to remedy them.

Senator Lt. Col. NEILD asked the Minister for Defence, upon notice

1. Referring to the answer given to Senator Neild on the 29th July:-Is it a fact that sums paid to sorters and letter carriers in the Sydney General Post Office, for overtime and Sunday work up to the 30th June, have been charged back to the said officials, and deducted from their monthly salaries?

2. Will the Postmaster-General take immediate steps to have such deductions refunded?

Senator DRAKE.-The answers to the honorable senator's questions are as follow :

1 and 2. Overtime paid to ten sorters to the 30th June without authority was deducted from monthly salaries, but subsequently repaid when authority to pay for the overtime was obtained. ELECTORAL DIVISIONS BILL. Royal Assent reported.

PAPERS.

Senator DRAKE laid on the table the following papers :

Public Service Act: repeal of regulation 220, and substitution of new one.

Military Forces: regulations re clothing and corps contingent allowance, military clothing, &c.