Charles Edward BOTHWELL

BOTHWELL, Charles Edward, K.C.

Personal Data

Party
Liberal
Constituency
Swift Current (Saskatchewan)
Birth Date
May 26, 1882
Deceased Date
August 28, 1967
Website
http://en.wikipedia.org/wiki/Charles_Edward_Bothwell
PARLINFO
http://www.parl.gc.ca/parlinfo/Files/Parliamentarian.aspx?Item=05ccb288-83b1-4501-8392-1c0eec567fc0&Language=E&Section=ALL
Profession
barrister

Parliamentary Career

October 29, 1925 - July 2, 1926
LIB
  Swift Current (Saskatchewan)
September 14, 1926 - May 30, 1930
LIB
  Swift Current (Saskatchewan)
July 28, 1930 - August 14, 1935
LIB
  Swift Current (Saskatchewan)
October 14, 1935 - January 25, 1940
LIB
  Swift Current (Saskatchewan)

Most Recent Speeches (Page 1 of 128)


May 2, 1939

Mr. C. E. BOTHWELL (Swift Current):

Mr. Speaker, when one listens to addresses from hon. members opposite one is inclined to tear up the notes he has made and simply answer some of the arguments advanced. To-day, however, I intend to deal with just one paragraph of the address of the Minister of Finance (Mr. Dunning). But before doing so, may I congratulate him upon his restoration to what looks like reasonable health, and also upon the manner in which he delivered the budget address. I particularly appreciated the audacity, if I may use that term, with which he addressed industry in Canada. I believe there is much in those paragraphs that industry could take to heart, and thereby cooperate with the government to solve some of the difficulties confronting us.

The paragraph to which I make special reference and which I shall quote is found at page 3151 of Hansard, as follows:

Reports from the tariff board I have laid on the table to-day, respecting furniture, cigars, cocoa matting, starches and dextrines, worsted weaving yarns, coke, radios and tubes, and automobiles. The report on the radio industry, apart from recommending free entry of certain parts, refers to the bearing of the Patent Act upon the investigation. In this connection the board states that "radio tube manufacturers in Canada have taken full advantage of the protection afforded to them by the terms of the Patent Act." The board expresses the opinion that selling prices of radio tubes in Canada to all classes of purchasers should not be in excess of the recognized list prices in the United States, plus all charges on importation. To that end the board suggests that the proposed reduced duties on parts, unless "immediately reflected" in the published selling prices of Canadian radio tubes, be rescinded. In giving fuller study to other phases of this report than

those relating strictly to tariff rates, the government will have to consider the relation thereto of the provisions of the Patent Act respecting the abuse of exclusive rights under patents.

For some years I have been wondering whether tariff reductions were as important as some other things we might do in connection with the industrial life of this country, and also for just how long the manufacturers and industrialists of this country have been taking advantage of our patent laws to exploit the Canadian public. I was intrigued by the remarks made by the former Secretary of State (Mr. Cahan) before the senate committee of 1935 which was considering amendments to the Patent Act. He said:

The fact is that the administration of the patent office of Canada has in recent years become a matter of very grave criticism not only in this country but in other countries, and some measures of reconstruction and reorganization of the office are necessary.

What is brought to my attention from day to day and week to week is the danger arising from these monopolies (patents) which are established here, unless there is some reasonable, equitable and impartial control.

At the economic conference which was held in Canada in 1932 we had a large number of English engineering firms represented and it was my duty to deal with some of those representatives. They were complaining that our purchases of engineering machinery from England were very limited. And when you inquired into it you found that the patents under which that engineering machinery was manufactured in England had been resold or assigned to American manufacturers . . . with exclusive rights as to Canada, and Canadians were invited to buy in Ohio, or in Pittsburg, or from some high building on Broadway, because the article could be purchased for use in Canada from the United States.

As I look over the situation, with my experience of the last five years, I see the industrial life of Canada held in the grip of the holders of some 200,000 patent monopolies, all of whom obtained similar patents in the United States, or in Germany or England, and none of whom have any strong incentive to produce in Canada, if they can make use of the manufacturing facilities of the neighbouring republic or of the other foreign states.

I do not want to pass any reflections, but I do not think the Canadian patent office has been efficiently administered. I think that in the past thirty years many patents have been granted which never should have been granted. There has grown up in Canada an idea that the patent office is a revenue producing branch of a department of government. It should not be administered solely as a revenue producing branch. It should be thoroughly equipped and reorganized, but the difficulty is to produce officials who are thoroughly competent at the salaries which the parliament of Canada is willing to pay for such services.

But I think you should revise this bill on the clear understanding in view, that the patent office is to be reconstructed, reorganized and reformed. Having that understanding in view,

The Budget-Mr. Bothwell

I think you should proceed to consider what should be enacted to ensure that legitimate industry in this country may be protected and that all foreign combinations which seek to control the domestic market of Canada may be duly restricted and restrained.

Following that investigation the Patent Act was amended, but the amendments, so far as I understand their application, were, with one exception, of no special benefit. That one compelled an applicant to make application for patent in Canada before a patent was granted to him in some foreign country. Prior to that, and under the act as it existed before 1935, an applicant could make his application here at any time within two years after the patent had been granted in the foreign country. That amendment did something to improve the situation.

The United States has been up against somewhat similar conditions. On December 1 last a committee was set up in the United States to study its patent law. It found that not only was the patent law subject to abuses of various kinds by patentees themselves, but that the act lent itself to the formation of monopolies in trade which were so restrictive that they had a very bad effect upon United States industry. The committee which was set up is known as the temporary national economic committee. It held its first sittings in December, 1938. I shall refer to some clippings in connection with its investigation, first quoting a statement of the United States department of justice:

Whether the patent system as it has developed around the present laws has served its purpose of promoting the progress of science and the useful arts, or whether the "legal monopolies" created by the law have been used to restrict freedom of opportunity, foster rigid price levels, increase or decrease the demand for manufactured products, withhold adequate compensation from inventors, and finally, whether they have been used to "circumvent the fundamental objective of another government policy-that policy which finds expression in the anti-trust laws," are among the questions :oncerning the economic committee.

The United States department of justice, in its report quoted by the correspondent of the New York Times, said:

The complexity of the patent system had recently increased with the complexity and scale of business "and the ingenuity of counsel." all of which have combined to create a host of legal devices which have altered radically the simple body of patent laws existing in the early days of American government.

A study has been made of some abuses which have existed in this country under our Patent Act. For the information of the house I want to quote some remarks made before the patent institute in an address delivered by TMr. Bothwell.]

George H. Riches, a patent attorney of the city of Toronto. Dealing with abuses under the Patent Act, he said:

Canadian patents were found in each case tp contain claims which had been rejected as unpatentable by the examiners of the United States patent office.

And he expresses the opinion that:

Greater care should be exercised that such patents are not issued wherewith patentees may threaten legitimate Canadian industry.

And again:

Many manufacturers take advantage of this weakness in the Canadian patent system to obtain patents which are invalid but which they know will have a high value in preventing other manufacturers entering into competition with them.

In his address before the patent institute he gave several examples of the use that manufacturers have made of the Patent Act in Canada and the advantage they took of the public. For instance, he gave an illustration of a fellow with a valve which he found it convenient to manufacture in connection with his other business. This particular valve had been in use for quite a number of years. A patent attorney was requested to make a search to find out whether there was anything to prevent him from manufacturing this valve. In the course of the search it was learned that several applications for patents were pending for various devices in the same class as the article he proposed to manufacture; and, the patent attorney says, under our patent law and under the system in vogue in our patent office, there is no way of ascertaining whether this device would be an infringement of the patents which would eventually issue on these applications. As I understand the situation, patent applications at least three years old are still lying in the patent office, and manufacturers who want to take advantage of devices which they know have been manufactured for years and upon which they believe the patents have expired, are not able to find out from our patent office whether or not it is possible for them to proceed to manufacture.

A further illustration is given to show the way in which some manufacturers will take advantage of our patent law:

For over fifty years an American company had manufactured a smoothing harrow consisting of four gangs of plates with a scrub or levelling board located with two gangs in front and two gangs behind it.

This implement is used by market gardeners to pulverize and level the soil and up until a few years ago was made at least by two companies in the United States, one of whom at one time shipped some into Toronto.

One of our distributors in the United States-

The Budget-Mr. Bothwell

This is written from the office of the manufacturer.

-asked us to make a similar outfit, substituting steel in place of wood for the frame and a steel plate in place of a wooden board for the levelling or scrub board.

We designed and developed such a machine and bad it ready for sale when we were notified that a blacksmith at Weston had applied for patent on such an implement.

I believe that Weston is a small suburb of Toronto. That implement had been manufactured for fifty years.

In the application for patent, claims made by the original manufacturers were included and in his advertising matter the Weston blacksmith had simplv copied the advertising of the Meeker of Higganum, Conn., even to the extent of copying word for word testimonials received by the original manufacturer.

Notwithstanding our objections which were so strongly supported, a patent was issued and in due time we were threatened with suit for infringement.

I was approached twice-[DOT]

This manufacturer saj's:

-by legal representatives and once by the wife of the patentee, with a suggestion that the matter be settled amicably either by direct payment or by an agreement to pay royalty.

Topic:   THE BUDGET
Subtopic:   DEBATE ON THE ANNUAL FINANCIAL STATEMENT OF THE MINISTER OF FINANCE
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May 2, 1939

Mr. BOTHWELL:

That was in 1937. I quote that in order to illustrate what manufacturers may do in connection with our Patent Act, and the use that they may make of it.

Mr. Justice Maclean of the exchequer court of Canada, discussing patents and our patent law, in 1932 Exchequer Court Reports, page 106, dealing with the case of Lightning Fastener Company v. Colonial Fastener Company, used these words:

It must be remembered that the object of the claim is to give a perfectly clear statement of the invention claimed. Of late years a superstition has arisen that a patent is more valid and has a greater hold over infringement if every possible permutation and combination of the elements entering into the invention is separately claimed; and it has become a practice to file claims which are copies of those used in American specifications. American claims may be very useful in dealing with American law, but in English law prolixity does not help a court which, whether in considering subject matter, novelty or infringement, invariably seeks to obtain an answer to the particular question, what has this man invented.

Again in the same report, by the same judge:

Prolixity and repetition in patent claims have also been frequently condemned in the United States courts. If the provisions of the Patent Act are not in terms sufficiently clear to enable the patent office to prevent a useless and confusing multiplicity of claims, and repetition in the separate claims, I would respectfully suggest to the commissioner of patents that he urge that the Patent Act be so amended as to

bestow ample power on the patent office, to curtail the abuse to which I refer and which is calculated to bring the whole law of patents into disrepute. I need hardly observe that my remarks are not applicable to all applications . . . perhaps only to a relatively small number, but in my own experience I have frequently noticed that claims are allowed which appear to me to be objectionable because of repetition in the separate claims, and the practice in my opinion should not be permitted to gather weight.

Again, by way of illustration, I would call attention to what has happened in connection with radio. It was referred to yesterday by the hon. member for Kootenay West (Mr. Esling) in his speech. One is astounded to know just how far people will go in order to exploit the consuming public of Canada. Dealing with this question of radio the statement has been made, and it has not been contradicted-I believe it is borne out by the evidence taken before the tariff board-that when the patent situation with regard to electrical apparatus was examined, it was found that this field was largely controlled by six companies who have pooled an innumerable number of good and bad patents. The companies are: Canadian General Electric Company, Canadian Westinghouse Company, Canadian Marconi Company, Northern Electric Company, Rogers Majestic Corporation Limited, Radio Corporation of Canada.

These six companies were involved in an investigation a few years ago under the Combines Investigation Act, and after the findings were made no action was taken against them. They have extended their operations to some other companies, and it would be astonishing to read the agreement that these companies entered into whereby they arranged that one company should have the manufacturing of one particular article and the others would not interfere, another company would have the manufacturing of some other article and the others would not interfere, and so on all through. The parent concerns are American, and they hold patents in Canada in connection with everything electrical connected with radio. Only ten per cent of the patents are held in Canada, ninety per cent being held in the United States; the parent company dictates what shall be done here, what price shall be charged; and if you buy a radio manufactured in the United States not only are you subject to a duty on bringing it in, but you are also liable to prosecution for infringement of patent rights by having it in Canada contrary to our own patent law.

' I will not take up any more time in this connection except to suggest that the defects which have been found in our Patent

The Budget*-Mr. Bothwell

Act might be outlined as follows-and I hope the minister in charge of patents and the government will see that the matter is looked into just as it was in the United States, where it was found that the manufacturer who is unconscionable enough to take advantage of the laws there is able to exploit the people unmercifully. And in Canada they can do it to a greater extent even than in the United States. I am going to suggest for consideration by the minister in charge of the Patent Act that there is lack of efficient examination of patent applications. The high cost of taking advantage of the remedies set forth in the Patent Act to curb abuses under it are prohibitive. Another defect is the cumbersome method by which such relief may be obtained and the uncertainty of the outcome. Other defects are: lack of responsible officers to investigate abuses; lack of power to punish patentees who have been found guilty of abusing patent rights; the large number of patents issued for the same articles; no positive, inexpensive way of ascertaining what patents cover a certain article; lack of positive control over the patentee; the wide powers given the patentee by means of which he may destroy the business of a competitor. These are matters for consideration. When one looks into the findings in the United States and considers some of the expressions that have been used there in the investigation, he will find that the chairman, after a hearing of several days, makes this statement:

The greatest handicap under the present system arises from the fact that there is no single court of patent appeals and no effective limitation upon the number of baseless attacks which may be made in the patent office by an applicant who desires to exploit or hamper an inventor.

Among manufacturers as well as among inventors there seems to be an agreement that patent procedure should be so changed that action on a patent application may not be unduly delayed in the patent office and that the entire life of a patent from the date of the application to the date of expiration shall not be more than twenty years.

One instance was brought to the attention of the committee of the extension by means of delays of the period of exclusive use from the seventeen years contemplated by law to forty-four years.

I might give an illustration of a company in the United States called Owens Illinois which is possibly a subsidiary of Hartford-Empire. No doubt Hartford-Empire control a large number of patents in the United States. They do not manufacture. For the period from 1925 to the end of 1937 they had an income of $49,479,062 from licence fees and royalties without manufacturing anything. It was "found that that company and Owens Illinois controlled 67 [DOT] 4 per cent and 29-2 per cent respectively of all glass

containers produced in the country, leaving about 3 per cent for all independent competitors. Two companies control the whole situation there in connection with glass containers. An investigation. in Canada might reveal a somewhat similar situation. My studied conclusion on the whole matter is that by the patent laws we have in Canada we are enabling foreign manufacturers to exploit the Canadian public to an extent that could not be done even under the tariff of the late administration.

Topic:   THE BUDGET
Subtopic:   DEBATE ON THE ANNUAL FINANCIAL STATEMENT OF THE MINISTER OF FINANCE
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April 18, 1939

Mr. BOTHWELL:

On a point of order, might it not be possible for an hon. member to refer to a book without quoting it all? I object to a member taking up the time of the committee reading to us a book that is available to all hon. members.

Topic:   UNEMPLOYMENT RELIEF
Subtopic:   UNEMPLOYMENT AND AGRICULTURAL DISTRESS-UNDERTAKINGS IN GENERAL INTEREST AND FINANCIAL ASSISTANCE TO PROVINCES
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March 13, 1939

Mr. BOTHWELL:

Glengarry and Nipissing. Then in regard to urban constituencies, the smallest one-or as closely as we could get it in our investigation-is Danforth, with a population of 41,824 and 29,034 electors. On the other hand Spadina has a population of 82,127, with 52,160 electors. I just mention that to show that the situation described by the minister in regard to the province of Quebec exists in Ontario also, and we can go right across Canada and find the same thing in other provinces.

Topic:   CANADIAN WHEAT BOARD
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March 13, 1939

Mr. C. E. BOTHWELL (Swift Current):

Mr. Speaker, with respect to the amendment moved by the hon. member for Vancouver North (Mr. MacNeil), I can only say that last year in committee considerable time was spent in discussing the subject of absentee voting. If the amendment is in order, which I doubt very much, my first objection to it would be that it applies only to British Columbia. If the act is going to be amended to provide for absentee voting, then it would appear to me that there should be general application so that it would apply to every province. The maritime provinces must be in exactly the same position as British Columbia, and the same observation would apply to those constituencies facing on the

Elections and Electoral Districts

great lakes. The sailors on those lakes will be absent from home, just in the same way as the seamen, lumbermen and fishermen of British Columbia may be absent.

The hon. member has referred to my remarks of last year as reported at page 4246 of Hansard. On that occasion I said:

The committee found that the expense of absentee voting did not warrant our including it in this bill. For instance, in the election of 1935 there were 5,334 votes polled under the absentee voting provision. We found that 1,533 of them were rejected. The cost of absentee voting was approximately $250,000, or $65 plus, per vote. And it was by reason of the expense which was incurred in connection with absentee voting the committee decided that for the sake of a vote of that size we would not be warranted in inserting a clause which would deal with absentee voting.

If expense is no object, then I assume we can provide for every person in Canada, no matter where he or she may be, exercising his or her franchise on election day. Certainly machinery can be set up in some way whereby every man would have an opportunity to vote, either before or after the election, and whether or not he was in his own constituency or polling subdivision.

However, I believe the committee had before them all the representations which have been made this evening, and they gave every consideration to the matter. Their conclusion was that they were not justified in inserting the absentee provisions which were in the 1934 act.

Topic:   CANADIAN WHEAT BOARD
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