April 23, 1923

LIB
CON

Henry Lumley Drayton

Conservative (1867-1942)

Sir HENRY DRAYTON:

Do these sections just follow the American sections?

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LIB
CON
LIB

James Alexander Robb (Minister of Trade and Commerce)

Liberal

Mr. ROBB:

No, this is very different.

The commissioner advises me that in the United States there are no conditions attached to the patent as regards manufacture and im, portation. They do the thing a little differently from the way we do it. We might as well be frank in regard to this. There has been a measure of protection under our Canadian law. In the United States it is wide open, and they give the protection through their custom houses. That is the difference in' the law as bewteen Canada and the United States.

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CON

Henry Herbert Stevens

Conservative (1867-1942)

Mr. STEVENS:

Is the minister right in

saying that the United States is a member of that convention? I understood that country was not a member.

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LIB

James Alexander Robb (Minister of Trade and Commerce)

Liberal

Mr. ROBB:

Not of the copyright, but of

the patents and trade-marks it is.

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CON

William Alves Boys (Whip of the Conservative Party (1867-1942))

Conservative (1867-1942)

Mr. BOYS:

As suggested by the minister,

I have looked at section 41. I cannot see how it can be coupled with section 40. Section 41 has reference to the revocation of the patent on the ground that the patented article is . manufactured or the process carried on exclusively or mainly outside of Canada. Section 40 deals with the reasonable requirements of the public, and provides that if the article is being manufactured but is not being supplied at a reasonable price, relief may be afforded the public.

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LIB

James Alexander Robb (Minister of Trade and Commerce)

Liberal

Mr. ROBB:

Under section 41, if the reasonable requirements of Canada are not supplied, then the commissioner has the right to revoke the patent,

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CON

William Alves Boys (Whip of the Conservative Party (1867-1942))

Conservative (1867-1942)

Mr. BOYS:

That is section 40 and not

section 41.

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LIB
CON

William Alves Boys (Whip of the Conservative Party (1867-1942))

Conservative (1867-1942)

Mr. BOYS:

I think possibly the amendment I want to suggest may be acceptable to the minister. I suggest that subsections (c) and (d) be deleted, and the following inserted in their place:

(c) If the parties do not come to an arrangement between themselves, the commissioner shall then consider the petition and shall have jurisdiction to hear and determine the matter.

Patents of Invention

The minister will at once see that there is the main difference. The section as we now have it in the proposed bill gives him no jurisdiction. He simply finds out if there is a prima facie case and if so, he sends it to the Exchequer Court. This provides that he shall have jurisdiction and shall hear and determine the matter. Then the amendment proceeds-

And if it is proved to his satisfaction that the reasonable requirements of the public with respect to the patented invention have not been satisfied the patentee may be ordered by him to supply the patented article within reasonable limits at such price as may be fixed by him, and in accordance with the custom of the trade to which the invention relates as to the payment [DOT] and delivery, or to grant licenses for the use of the patented invention, as may be fixed by him in either case within and after such time as may be fixed by him and on pain of forfeiture of the patent.

(d) Any decision of the commissioner under this section shall be subject to appeal to the Exchequer Court.

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LIB

James Alexander Robb (Minister of Trade and Commerce)

Liberal

Mr. ROBB:

In considering the amendment I wish to bring to the attention of the committee the sections that it is proposed to delete, namely (c) and (d). Subsection (c) reads:

The commissioner shall then consider the petition-

That is when representations are made to him that the goods are not manufactured in Canada-

The commissioner shall then consider the petition and, if the parties do not come to an arrangement between themselves, the commissioner, if satisfied that a prima facie case has been made out, shall refer the petition to the Exchequer Court and, if the commissioner is not so satisfied, he may dismiss the petition.

It will be observed that in the first instance he takes upon himself the right to dismiss the petition, but if there is any doubt about it he refers the matter to the Exchequer Court, and there the interested parties go before that court and submit evidence for and against. I submit to my hon. friend that if his amendment prevails it means no more and no less than establishing a second court within the Patent office, and adds enormously to the machinery of public service in this country, and, in my judgment, adds quite an unnecessary expense. There might not be more than one or two cases develop during the year, but you would require all the machinery of the court to sit there waiting for such cases to come up. The Exchequer Court is a fair method of arbitration for all parties to go before and to bring their witnesses. There may be many witnesses to be heard; there may be long records to examine, and in the interest of economical government and fair play to all interested parties, as well as in order to do justice to all the people of Canada, I do not

think my hon. friend should press his amendment. It seems to me that the present method is a fair one. The commissioner explains to me that in the early nineties they had the machinery which my hon. friend now proposes to reintroduce; but experience proved that it was too cumbersome, and they had to abandon it. That is why at this time they have decided to refer all these cases to the Exchequer Court. That is what the Exchequer. Court is for. If there are not enough men on that court, let more be put on, but why establish a court within the Patent office?

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CON

William Alves Boys (Whip of the Conservative Party (1867-1942))

Conservative (1867-1942)

Mr. BOYS:

I should like to say at once that in proposing this amendment, I had no thought of putting anybody, not even the government, to expense. My thought in suggesting this amendment is the very reverse. I do not think persons interested in patents, where there is room for some little dispute, should at once be drawn into the law courts at great cost and delay. It might be interesting to know just how many cases, such as are involved in the matter we are now discussing, have arisen in the last twenty years. I do not suppose there are many, but surely when a question arises whether or not an article is being supplied at a reasonable cost to the public,* the commissioner, without a string of officials, without a great deal of expense, can read the , petition, hear the persons interested in the patents, and then e"d there determine whether or not the public are being supplied with the article at a reasonable cost. If he thinks they are, he dismisses the application; if not, he says so, and he imposes such terms as he thinks proper. For argument, in the case of an article selling at a dollar, he will say: "You have here an article that costs five to ten cents to manufacture; you ought to supply it to the public at fifty or seventy-five cents," whatever he thinks proper. He gives his judgment accordingly, and I venture to say that, in most cases his judgment, will be accepted by the parties. But in case any injustice may be done, let an appeal to the Exchequer Court be reserved to protect the party who fails. You have then the ordinary machinery of that court to follow. How the minister can think this is going to involve an army of employees or even an extra employee, I cannot see. This will not increase expense; it will diminish it. It is going to keep applicants for patents out of litigation. This may seem a peculiar thing for a lawyer to suggest; but my interest in this matter is as a member of parliament, and not as a lawyer. I am speaking in this case as a member of parliament. I certainly desire, as

Patents oj Invention

a representative of the people of Canada, to do all I can to keep them out of law. I am going to read a comment which has reached me in connection with this clause. I do not desire any credit for this amendment. It was handed to me by the hon. member for South Wellington (Mr. Guthrie) who, being unable to be present, asked me to take charge of it. This is the comment; with which I entirely agree:

These are framed to reduce the necessity for suit before the Exchequer Court. There is strong feeling against throwing a'l'l doubtful cases at once into the law courts and compelling litigation on questions which may well be determined within the Patent office. In fact, there is a strong feeling that without the passage of such amendments the Patent office will be receiving fees without earning them, and as the bill stands at present the Commissioner of Patents is stripped of his proper functions- *

With that I absolutely agree.

-which are handed to the Exchequer Court, while the patentee may at any time find himself forced into legal procedure which might be properly avoided.

The only answer made by the minister to that is the imaginary expense it is going to lead to. Let us see what this clause contemplates. The public think they are being called upon to pay an extravagant price for an article the manufacture of which is patented. They present a petition to the commissioner setting out their grievances, I presume, giving some evidence that the article cannot cost more than 20 to 30 per cent of the selling cost, and stating that there should b* a reduction in price. When the commissioner receives the petition, he then decides whether or not it should be granted or dismissed. As the minister says, he can dismiss it under the proposed legislation. I want to go a step further and to meet the case when the commissioner, after consideration, is of opinion that the article is being sold at too high a price. He may then say so, and add what he thinks it should be sold for. to supply the public with the article at a reasonable price. He gives his judgment accordingly. Where is there anything cumbersome, troublesome or expensive in that procedure? The commissioner is given many powers in this legislation. Why not give him an important power in this connection, and keep people out of law, if possible. If they must have law, they can appeal to the Exchequer Court from his decision. I must say the minister has not said anything which makes me think this amendment should be withdrawn. I do not present it for the purpose of embarrassment at all; I present it in the hope that the minister may think it is reasonable; that the provisions of this

fMr. Boy3.]

measure will be improved, and that the cost connected with patents will be lessened. In no other spirit do I offer the amendment to the minister. If he just views the situation which might arise under it, I do not see how he can imagine for a moment that the troubles which he has anticipated will occur. I agree with the comment I have read that if you do not give the commissioner such a power as this, the Patent office will be actually receiving fees without earning them. We do not want a commissioner, a man of experience and ability, to merely receive and file papers, and to tell people, if they ar^ not satisfied, to go to the Exchequer Court. We have a commissioq-er, as far as I know of considerable capacity. He is paid with that in view. Give him some responsibility in connection with the enforcement of this legislation. Do not strip him of responsibility and send everything of any doubt or trouble to the Exchequer Court, which, I think, is fairly well loaded up with work at the present time.

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LIB

James Alexander Robb (Minister of Trade and Commerce)

Liberal

Mr. ROBB :

Probably my hon. friend might be right in many arguments that would come up; but there are some cases where, I think, I could almost convince my hon. friend that it is quite necessary that this should go to the Exchequer Court. The commissioner has recently pointed out a case that came before him in connection with a system of recovering ore at the Cobalt mines, a ver' complicated matter, where royalties would run into millions of dollars. My hon. friend can understand that if the commissioner undertook to hear cases of that kind, they might extend over quite a long time and tie up the work of the office. My hon. friend has not yet persuaded me that it is best to establish a court within the Patent office. He will not deny that it will be necessary to equip the Patent office further, if they are properly to hear all evidence in connection with appeals that arisp from time to time. May I again remind my hon. friend that the system he suggests was in vogue prior to 1890?

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CON

Henry Herbert Stevens

Conservative (1867-1942)

Mr. STEVENS:

The minister is objecting to the establishment of a court within the Patent office; but he is establishing a court by this clause. He is empowering the commissioner to say, no, but he forbids him to say yes. He empowers the commissioner to dismiss a case; but if the commissioner does not, dismiss a case, he must send it on with a sort of "God bless you" to the Exchequer Court Let me read the clause, and the minister will see where his argument is without foundation at all;

Patents of Invention

The commissioner shall then consider the petition, and .... if satisfied that a prinia facie case has been made out,-

But how can he determine that, such a case has been made out unless he hears the evidence? How can fie determine that a prima facie case has been made out if he has not read the petition and heard or read the evidence and given it his consideration; in other words, unless he has sat upon the case as a court?

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LIB

James Alexander Robb (Minister of Trade and Commerce)

Liberal

Mr. ROBB:

He need not necessarily act as a court.

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CON

Henry Herbert Stevens

Conservative (1867-1942)

Mr. STEVENS:

Follow me a step further. The section goes on:

-and, if the commissioner is not so satisfied, he may

dismiss the petition.

You deny the petitioner the right of appeal if the commissioner says no, but you send the case to the Exchequer Court if he says yes. Why, the thing is really preposterous. The minister says in effect that the commis sioner cannot try these cases because he has not the equipment nor the time. But a petition comes before him and he is empowered to say, "You have no case;" and there is no right of appeal, no safeguard at all. But has not the commissioner considered the case if he dismisses it? If he has not, then this law is a travesty on justice; it is only an insult to the intelligence of the people. My hon. friend will certainty have to amend the section because I cannot see how he can escape it. Let us read the clause carefully:

The commissioner shall then consider the petition and,

. . . . if satisfied that a prima facie case has been made out, shall refer the petition to the exchequer court-

For purposes which are determined in the next section. But, mark you, he must determine first whether a prima facie case has been made out.

-and, if the commissioner is not so satisfied, he may dismiss the petition.

If the commissioner is not satisfied, after having given due consideration to the matter, he may say to the petitioners, "You have no case, go away," and that ends it. They have no right of appeal. Now, that is a dangerous power to put into the hands of the commissioner.' We do not ask that; we say, let the petition go before the commissioner; and we ask him to do what you are asking him to do here, namely, to consider it. We say that if [DOT] he considers a prima facie case has been made out he shall refer the matter to the Exchequer Court; and if, on the other hand, he considers that no prima facie case has been established, then we ask that, if the 134

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REVISED


petitioners, or either party, are not satisfied, they be given the right to appeal to the court.


April 23, 1923