The Deputy Commissioner of Patents has forwarded the following memorandum asking for advice:

Application No. 6067 for a patent was lodged at the Patent Office on 17 December 1917, and accompanied by an incomplete form of application. In this form the seal of the applicant company is affixed.

On 27 November 1918 a form of application was lodged at the Patent Office. In this form it is stated that the common seal of the company was affixed but it will be seen from the document that presumptively no seal was affixed. A properly prepared form was called for on 10 December 1918.

On 23 January Mr A. notified me that he had been advised by cable as follows: 'A. patent attorney Sydney B. being Dutch company has no seal endeavour get cases accepted'.

On 1 February 1919 Mr A. was called upon to file a form of application in accordance with the facts.

On 17 February 1919 Mr A. sought permission to alter the form of application (paragraph 2) and was informed by letter dated 19 February 1919 that a fresh form executed in accordance with the facts must be filed.

On 28 February 1919 Mr A. lodged a further form of application.

On 10 March 1919 I asked Mr A. for certain information.

In a letter received 22 April 1919 Mr A. has notified me in effect of his refusal to furnish me with the information asked for in my letter of 10 March 1919.

On 5 April 1919 Mr A. lodged at the Patent Office a form of application executed under the seal of the applicant company.

As Form E does not authorise an agent to amend forms of applications for patents and as Mr A.'s refusal may be associated with section 112 of the Patents Act, I shall be pleased to receive your opinion as to whether:

1. Is Mr A. compellable to furnish the information, asked for in my letter of 10 March 1919, in the absence of an objection that his answer would tend to expose him to a charge under section 112 of the Patents Act?
2. If not compellable, according to Question 1, would Mr A.'s conduct, by the fact of a fixed time being prescribed by the Patents Act for acceptance of complete specifications, by the fact of section 54 of the same Act, and by the fact of his refusal to answer causing delay in relation to the application for the patent, be calculated to prejudice the applicant's interest within the meaning of regulation 153 of the Patents Regulations 1912?

On account of certain apparent discrepancies between the various forms of application and the explanations furnished, the Deputy Commissioner on 10 March called upon the Patent Attorney to state whether certain forms of application which accompanied the Attorney's letter of 25 February were in their amended form executed by the directors of the company. These particular forms were dated 29 August 1918 and were executed as follows:⁽¹⁾

The Attorney had previously filed application forms bearing the same date, signed by the same persons, and executed in the same manner as the forms above referred to but without the alterations set out above.

The Attorney has since filed fresh application forms bearing date 14 January 1919, to which forms are affixed wax seals, which it is stated in the correspondence have been made for the purpose. The Attorney also declines to furnish the information required by the Deputy Commissioner in his letter of 10 March.

As regards the first question, it may be pointed out that under section 14 of the Act the Commissioner has power for the purposes of the Act to: (a) summon witnesses; (b) require evidence on oath; and (c) require the production of documents. By section 15 it is made an offence for a person summoned as a witness to fail, without lawful excuse and after tender of reasonable expenses, to appear in obedience to the summons, and by section 16 it is also an offence for a person who appears before the Commissioner as a witness to refuse to be sworn, produce documents or answer questions which he is lawfully required to answer.

As regards the first question upon which advice is desired, I am of opinion that if the Commissioner requires further information to enable him to determine whether the application has been properly made and may be accepted by him, he may lawfully summon Mr A. as a witness to give evidence to him in relation to the application, and if Mr A. appears the Commissioner may require him to be sworn, and may put to him questions in relation to the alterations made in any of the forms lodged in the case. Any refusal by Mr A. to answer any such questions would, in my opinion, constitute an offence against section 16 of the Act. I do not however think that if Mr A. states that the answer to the question would tend to criminate him he should be compelled to answer the question.

In view of my answer to the first question being in the affirmative, it is not necessary to answer the second question, the answer to that being only desired in the event of the first question having been answered in the negative.

[Vol. 16, p. 300]

(1)Matter omitted, but the attestation clause, originally reading: ‘The Common Seal of B. & Co. was hereunto affixed in the presence of:’, was overtyped to read: ‘The execution of B. & Co. is effected by the hands of:’.