Opinion Number. 1416

Subject

IMPLEMENTATION OF TREATIES IMPLEMENTATION BY COMMONWEALTH OF Draft Convention for the Protection of Scientific Property: PATENTS POWER

Key Legislation

CONSTITUTION s 51(xviii)

Date
Client
The Secretary, Prime Minister

I am in receipt of your memorandum dated the 29th March, 1927, relative to the proposed Draft Convention for the Protection of Scientific Property which was approved in principle by the Fourth Assembly of the League of Nations.

It is equitable that the discoverer of a scientific fact or principle which proves beneficial to mankind should be rewarded.

The suggestion of the Committee of the League which dealt with the matter is that the system of granting patent rights in inventions be extended to include scientific discoveries, and that where a person establishes the fact that he has made a scientific discovery, and that discovery is applied by means of an invention, the discoverer shall share in the profits derived from the invention–in effect, that a scientific discovery shall become a subject of property and that the owner of the property shall be paid for the use of it.

The framing of suitable legislation in this respect is admittedly difficult and the effect upon industry and the rights of inventors would require careful consideration.

The fact that any or all the other nations may not adopt the principle and provide appropriate legislation would not prevent its adoption by the Commonwealth; but the policy of isolated action in this respect would require very careful consideration.

Section 51(xviii) of the Constitution gives the Commonwealth power to make laws with respect to copyrights, patents of inventions and designs, and trade marks.

The power of the Commonwealth to legislate in respect of patents does not extend to patents of principles, and until the Constitution is amended to give the Commonwealth this additional power, no legislation is possible.

The advisability of obtaining such power is a matter of policy for decision by the Government.

[Vol. 23, p. 124]