Opinion Number. 1610


patents power of commonwealth to legislate for protection of formula not capable of forming subject matter of patent: patents power

Key Legislation

constitution s 51(xviii)

The Secretary, Prime Minister

The Secretary, Prime Minister’s Department has forwarded the following memorandum to me for advice:

I desire to inform you that certain proposals have recently been brought before the Government concerning the protection of a formula for the conversion of power alcohol into a usable motor fuel. At present power alcohol is mixed with petrol in the proportions of 85% of petrol to 15% of alcohol to obtain satisfactory results.

The discoverer of this formula states that he has obtained legal advice on the subject of the protection of his formula but he finds that such protection cannot be obtained under existing patent laws.

Without any knowledge of the formula it is not possible to define exactly how it would differ from preparations which can be protected, but it is thought that the process of conversion consists of the addition to the alcohol of some well known product. In other words something that would be more or less analogous to petrol.

In the circumstances advice would be appreciated as to whether the Commonwealth has any power to afford protection to a formula which is not patentable.

I might add that tests carried out to date suggest that the formula may be of national value, particularly in case of an emergency when it might be necessary to resort to the use of power alcohol as a substitute for other fuels.

Under placitum (xviii) of section 51 of the Constitution the Commonwealth has power to make laws with respect to patents of inventions. The Commonwealth has no direct power to provide for the protection of a formula which is not patentable, nor is such a power incidental to the exercise of any other power.

It is, in my view, immaterial, that the discovery referred to in the memorandum submitted for advice may be of national value.

The question submitted for advice must therefore be answered: No.

[Vol. 30, p. 124]