Mr. STEVENS:

I think the minister had better give us some explanation for the substitution.

Patent Act Amendment

Mr. RINFRET:

This section is intended

to remove an anomaly in the Patent Act caused 'by a contradiction between section 7 and section 8 of the act. Section 7 reads:

Any person who has invented any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvements thereof, not known or used by others before his invention thereof and not patented or described in any printed publication in this or any foreign country more than two years prior to his application and not in public use or on sale in this country for more than two years prior to his application may, on a petition to that effect, presented to the commissioner, and on compliance with the other requirements of this act, obtain a patent^ granting to such person an exclusive property in such invention.

In plain language, the meaning of the section is that an application may be made within two years. Section 8 reads:

Any inventor who elects to obtain a patent for his invention in a foreign country before obtaining a patent for the same invention in Canada, may obtain a patent in Canada if the patent is applied for within one year from-[DOT]

In other words, the period for the obtaining of a patent is given as one year. That anomaly was pointed out by the exchequer count in the case of Edward A. Russell vs. the Commissioner of Patents. In that case an application for a patent had been made in the United States on May 1, 1922, and the application for a Canadian patent was made on December 11, 1924, which application had been refused by the commissioner, his judgment being based upon section 8. The case was brought before tlhe exchequer court and that count ruled that section 7 should apply, pointing out the contradiction between the two sections. Hon. members may wonder why this anomaly has not been adjusted before, and I have little to say in that regard except that it was understood that when other amendments to the Patent Act were moved that anomaly would be adjusted. The reason for the confusion appears to be this: according to the international agreement reached at the conference at the Hague the period for the priority that can be claimed by a foreign patent in Canada or -any other country was fixed at one year, and when the adjustment was made to the act to deal with that specific disposition, section 8 was framed and inadvertently the time set for the obtaining of a patent ou-tside of any priority claim was also fixed at one year while in section 7, which includes the general rule concerning patents in Canada, the limit is two years. I have under my band the full judgment of the court on that case.

Mr. BENNETT:

What is the date of that?

Mr. RINFRET:

1924 I do not -think it is necessary to place the whole judgment on Hansard, but the judge points out very clearly the contradiction between sections 7 and 8. As I have said, it may be argued that this adjustment should have been made some yea-rs ago. With that I quite agree and I will not discuss it. It was explained to me that as no amendments to the Patent Act had -been moved for some time, the Commissioner of Patents had rather awaited the occasion to suggest this one; in the meanwhile the interpretation of the court having become the rule in his office.

Mr. STEVENS:

Have there been abjections to these proposals?

Mr. RINFRET:

No. If my hon. friends will look -at the clauses of the proposed bill they will see we are simply proposing to do away with the first paragraph of section 8, to reenact paragraphs 2 and 3 as they appeared previously, and to have a new paragraph 3 to protect any -patents which may have been granted on the strength of this interpretation but which might be disputed on account of their having been granted in the period prior to the amendment that I now propose. I am not sure that I have made myself clear, but if appears that this change should have been made some time ago. If I had any comment to add, it would be that there has been undue delay in adjusting that part of the act.

Mr. GEARY:

Does the judgment of the

exchequer court go into the history of the section?

Mr. RINFRET:

Not exactly. It deals

rather with a concrete case, but the judge refers very clearly to the proposed change. Perhaps I might read from the judgment as follows:

The application for a patent in the United States was made on the first May, 1922. The application for a Canadian patent was made on the 11th September, 1924, and refused by the Canadian Commissioner.

Under the provisions of section 7, set out above in full

That is in the judgment.

-"any person" who has invented anything as mentioned therein, has two years, within which to make his application for a patent under these circumstances and conditions as stated in the section.

By the first paragraph (1) of section 8- Which paragraph we now propose to repeal. -he is limited to one year, under the conditions mentioned in such paragraph, and the commissioner seems to have relied upon the same to refuse to entertain the application, because it was not presented within one year of the date of the American application.

Government Contracts

To put such a construction upon the first paragraph is erroneous; because this paragraph which deals with a case where a foreign patent has been taken out, does not apply to the present case where no foreign patent has been issued, but only when an application for the same has been made.

Indeed, that view is the only one that can be arrived at when we examine the natural and grammatical meaning of the wording of the section, which starts by saying: "Any

inventor who elects to obtain a patent." That is to say any inventor who chooses to obtain a foreign patent before obtaining a Canadian patent.

Later on the judge says;

However, in the present case, sections 7 and 8 appear to be mutually repugnant. It cannot be denied that the phraseology used could be improved; but that is only to declare, as I have had already occasion to say in another case that it is another illustration of the want of care that besets the modern method of drawing our statutes.

I was rather forced to read that. I do not intend to endorse it except as it applies to the particular case.