Opinion No. 1763
ACQUISITION BY AUSTRALIAN GOVERNMENT OR AUSTRALIAN CITIZENS OF RIGHTS TO PATENTS REGISTERED IN GERMANY: RIGHTS IN AUSTRALIA TO GERMAN PATENTS ALREADY SECURED BY AUSTRALIAN CITIZENS: WHETHER GERMAN REPARATIONS MIGHT ARISE FROM CERTAIN GERMAN PATENTS: PATENTS GRANTED IN AUSTRALIA TO GERMAN CITIZENS OR GERMAN COMPANIES: POSITION WHERE AUSTRALIAN CITIZENS HAVE RIGHT TO USE GERMAN PATENTS ON PAYMENT OF ROYALTIES: POWER OF CONTROLLER OF ENEMY PROPERTY WITH RESPECT TO ROYALTIES PAYABLE BY AUSTRALIAN CITIZENS FOR USE OF GERMAN PATENTS
NATIONAL SECURITY (ENEMY PROPERTY) REGULATIONS
25 February 1946
The Secretary, Department of External Affairs
I refer to your memorandum of 12th February, 1946, relating to the decision of Cabinet on Agendum No. 1059 and to outward cablegram No. O.3515 of 28th February.
The matters as to which my views are sought appear to be
- the position regarding the acquisition by the Australian Government or Australian citizens of the rights to patents registered in Germany;
- German patents the rights to which in Australia have already been secured by Australians.
With regard to (a), I have substantially nothing to add to my memorandum of 7th September, 1945,1 from which it is clear that patents registered in Germany do not thereby derive any force in Australia which would prevent any person from applying the inventions in this country. No question of ‘acquisition ... of the rights to patents registered in Germany’ therefore appears to arise unless paragraph (a) is intended to refer to the right to apply for a patent in Australia based upon the acquired Convention rights flowing from the application in Germany.
With regard to paragraph (b), few applications in the Commonwealth have since the war been based upon German applications and, if the policy of the British Government is adopted in the Commonwealth, namely the policy of refusing to permit applications for patents based upon German applications made since September 1938, then the possibility of any substantial amount of reparations arising from this source is highly problematical. With regard to patents already granted in Australia to German nationals or German companies, this matter is dealt with in the last paragraph on page 1, and in page 2, of my memorandum of 7th September, 1945.
I may point out that the large majority of German owned Australian patents would by now have ceased for non-payment of renewal fees. It is possible, under present legislation that extensions of time for payment of renewal fees (with consequent revival of the patent) would be available in such cases. Here again, however, the adoption in the Commonwealth of the British policy of refusing such extensions to German nationals would negative any capital value which such patents might have.
It would seem to me that any processes or articles the subject of patents in Germany would only be of value to the Commonwealth if industrially adopted here, but if these were the subject of published specifications in Germany they would in the normal course of events be available without cost to the adopting party. If they be the subject of secret processes not published, then their value would be one of negotiation between the parties concerned, and any value they might have would appear to be treatable in the same way as the value of any other expropriated enemy property. In any event, it seems doubtful whether these could form a sound basis for consideration as reparations.
The British policy referred to above is the subject of a Bill which was recently before the House of Lords. I am not aware as to whether the Bill has passed both Houses, but a copy of the Bill was recently received in Australia.
I wish to add that, where Australians have the right to use German patents on payment of royalties, the National Security (Enemy Property) Regulations require the Australians to pay the royalties due under the licences as directed by the Controller of Enemy Property. In such cases, I understand, that the Controller has directed the payment of the royalties to himself. Any moneys received by the Controller in respect of patent royalties appear to be in no different position from other moneys held by him in respect of debts due to enemy subjects.
The Controller has, I understand, received in similar circumstances copyright royalties in respect of musical works etc.
I understand that the royalties and similar moneys at present held by the Controller are in the vicinity of £24,000 of which only about one quarter represents patent royalties.
The matter of Australian patents by German subjects, considered as capital assets, is dealt with in my memorandum of 7th September, 1945.
[Vol. 37, p. 44]