May 28, 1903

THE PATENT ACT-AMENDMENT.


The MINISTER OF AGRICULTURE (Hon. Sydney Fisher) moved for leave to introduce Bill (No. 184) further to amend the Patent Act. He said : In introducing this Bill, I think that perhaps a short explanation is due to the House. The immediate necessity for the passage of an Act of this character is due to the decision of the Supreme Court of Canada last December in the case of Power vs. Griffin, the effect of which decision has been to alter materially the practice of the department, and in some cases to throw a doubt upon the validity of certain acts of the department in the past. The Bill provides for various other amendments to the Patent Act which have been asked for by the applicants for patents and by those who are practising as patent solicitors in Canada. The Bill provides first of all, to remove doubts raised by the decision of the Supreme Court as to the powers of the deputy commissioner of patents or the acting deputy commissioner of patents. While the decision of the court itself did not involve any question as to the powers of these two officials, still there was an expression of opinion by some of the judges that the deputy commissioner and the acting deputy commissioner had been performing certain acts which they considered to be only within the purview of the commissioner himself.


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The MINISTER OF AGRICULTURE.

The granting of extension of time for manufacture in the country, and extension of time for importation under the Patent Act. The Bill also makes an important amendment as to the duration of the existing Canadian patents. At present, under our patent law, all Canadian patents cease, determine and are void whenever a similar patent in a foreign country becomes void for any reason whatever. That is a relic of by-gone patent legislation. It has already been removed from the law of Great Britain and the United States and other foreign countries, and those who are connected with the administration of the patent law in Canada believe that Canadian patents ought not to become void simply because of the voiding of the same patents in a foreign country. This amendment will make the existence of the Canadian patents entirely independent of the life of the same patents in foreign countries. We have found in the administration of the patent law that certain difficulties have arisen in the way of the voiding of patents because of non-manufacture

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in this country- There is a pretty large class of patents, the manufacture of which is practically impossible until a demand arises for them. A patent for a graving dock is an example. There might be no necessity for the building of a graving dock in Canada for many years after the period of the patent had expired because of nonusage. There are other patents for processes, the manufacture of which is not necessary unless the article, the use of which the process is required for, is manufactured in the country. It seems to be an injustice to the patentee that because of the non-use of the patent in this country the patent should become null and void. In Great Britain they have adopted a system of licensing, and this Bill proposes to apply the British license system to this class of patent when the owner of the patent applies for it, and when, in the judgment of the commissioner of patents, it is a proper patent to allow that licensing system to prevail in regard to, instead of the patents becoming null and void because of the non-use or nonmanufacture of the article in this country. Then, as the decision of the Supreme Court of Canada has shown that certain acts of the deputy commissioner of patents and the acting deputy commissioner of patents were beyond their powers, this Act will render valid acts which have been so performed by these officers. We further propose to revive certain patents which were void, either through failure to manufacture in the country, or by reason of the permission not to manufacture having been given by the officers of the department in a way which this decision of the Supreme Court says was illegal and ineffective.

Hon. Mr. HAGGAllT. How far do you make your ex post facto legislation valid, and to what cases does It apply 1

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The MINISTER OF AGRICULTURE.

I will explain that further in detail. I was going over the Bill first. Then we propose another radical amendment in the administration of the office, which has really not occasioned any great trouble, but might do so at any time. The present patent law provides that all papers in connection with patents should be open to public inspection. That provision applies to applications for patents before the patent has been granted. There is no doubt that under that interpretation of the law there is a danger that a person who has filed an application for a patent, a paper which ought to be confidential, might have his patent stolen from him by reason of that fact. We remove the applications for patents from the operation of that section of the law, and make them confidential just as caviats are. until the application has been dealt with and passed upon by the department There is also a provision, not to change, but to make clear the tariff in regard to the fees on the re-issue of a patent. These have been a subject of dispute, and patent solicitors who Hon. Mr. FISHER.

appear before the office have generally considered that the ruling of the office was not indicated clearly by the wording of the Act, and I wish to make the wording of the Act so as to indicate more clearly the ruling of the office, which has been sustained and upheld. There is also a clause to extend the time within which the Commissioner of Patents, under certain circumstances, may be able to give a permit for an extension of time to import. We have clauses conserving the rights of people who may have acquired rights through the decision of the Supreme Court, the results of which by this Act are to be modified to a certain extent. We propose to retroactively maintain and make valid certain patents which at the present time are null and void. We conserve the rights which were acquired during the period in which those patents were not valid. The hon. member (Hon. Mr. Haggart) has asked me particularly in what way we make the Act retroactive. I think the first clause, which deals with that is clause 9 :

The validity of any extension heretofore granted or assumed to be granted under subsection 2 of section 37 of the said Act, of the period of two years limited by that section, or by that section as heretofore amended, for the commencement of the construction or manufacture of a patented invention, or of the period of twelve months thereby limited for the importation of the patented invention, shall not be open to impeachment, because-

(a.) Such extension was so granted or assumed to be granted by the Deputy Commissioner of Patents, or, as acting Deputy Commissioner of Patents, by a person performing the duties of Deputy Minister of Agriculture under the provisions of the Civil Service Act in that behalf, instead of by the Commissioner of Patents; or because

(b.) In the case of the invention to which such extension relates, there had been granted or assumed to be granted a previous ^extension or previous extensions of the period of two years or the period of twelve months, as the case may be, so limited.

The Supreme Court of Canada has decided that while one extension of time may be permitted, no more can be granted by the Commissioner of Patents. It had been the practice of the department to grant more than one extension. This Act will make valid the extensions which have been granted. but, of course, the practice of the department will now change, and only one extension will be granted in each case.

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John Graham Haggart

Conservative (1867-1942)

Hon. Mr. HAGGART.

' How about rights acquired by the voiding of a patent ?

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The MINISTER OF AGRICULTURE.

There is a general provision carefully preserving all acquired rights under the law.

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Mr INGRAM.

Suppose a patent lapsed this year, could that be revived in two years from now ?

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The MINISTER OF AGRICULTURE.

No. The Bill only makes valid the patents which have lapsed up to the period when

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The MINISTER OF AGRICULTURE.

Yes. the reading of the old Act is entirely different because the decision of the Supreme Court completely controverts and overrides Dr. Taclie's decision of 1877. And liecnuse the Supreme Court holds that the decision upon which the patent law has been administered ever since was erroneous and incorrect. This section provides that the patents still in existence, the holders of which have complied with Dr. Taclie's decision, shall be rendered valid, provided that within a fixed time they do what the new reading of the law requires. It is only right that those patents which have become void through the patentee following Dr. Tache's decision should be given an opportunity of lining made valid again.

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Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

How will you give the patentees notice ?

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The MINISTER OF AGRICULTURE.

That would be a matter of administration. But I should think that the passage of the law and its appearance in the statutes would give most people sufficient notice.

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Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

It gives technical notice, but I mean actual notice.

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The MINISTER OF AGRICULTURE.

We could undertake, though it would be

great labour, to send notices to the patentees, whose addresses we have, but there are a great many with whom we have had no communications and whose addresses we do not know.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

How many patents are voided by this decision of the Supreme Court ?

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The MINISTER OF AGRICULTURE.

There are so many patents voided on one ground or another that I could not tell off hand.

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Andrew B. Ingram

Liberal-Conservative

Mr. INGRAM.

In the case of a patent, the manufacture of which has not begun at the expiration of the two years, does this extend the time ?

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The MINISTER OF AGRICULTURE.

It gives them six months to comply with the new reading of the law. This Bill also makes valid patents which have expired through the expiry of foreign patents. That is another way in which it is retroactive, of course providing the safeguard of acquired rights. There is a general clause in the Bill giving protection to acquired rights under every provision of this measure, and the Department of Justice and my own deputy minister, who is a lawyer, considers that the clause, as it is drawn, will preserve any acquired rights under any retroactive provisions of this Bill. I may say that this decision of the Supreme Court was quite unexpected, that the jurisprudence of the Patent Law had been maintained on the lines I have beeil discussing some 26 years, and it was only last December that a change was made. I may say that the Department of Justice and my own deputy minister concur fully in the ruling of the Supreme Court, but at the same time I think that the continuous existence of a condition of affairs based on a wrong reading of the law in the department, proves that it was high time that an experienced lawyer was made deputy minister, and I am very glad that I was able to secure the services of an experienced and sound lawyer for the position. I am satisfied that such an appointment will conduce to the more satisfactory administration of these branches - in which legal knowledge is required.

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Andrew B. Ingram

Liberal-Conservative

Mr. INGRAM.

Will it be necessary to come forward with a private Bill in order to renew lapsed patents ?

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May 28, 1903