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The Law ®T Industrial and Intellectual Property : - 1923-1947 Harold G

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The Law ®T Industrial and Intellectual Property : - 1923-1947 Harold G THE LAW ®T INDUSTRIAL AND INTELLECTUAL PROPERTY : - 1923-1947 HAROLD G. FOX St. Cathârines, Ont . The setting down of a chronological conspectus of the law of patents, trade marks, industrial designs and copyright over the past twenty-five years involves primarily a review of the develop ment of the pertinent statutory law. The statutes pertaining to all four branches of the law of industrial and intellectual property are concerned with matters within the legislative competence of the Dominion Parliament and, while it is of importance to consider the jurisprudence established by the various courts of record throughout the Dominion, it is within the sphere of statutory amendment that the development of the law, in this field has shown growth and change, as contrasted with the interpretative function, which is solely the province of the courts. The legislative history of this branch of the law has not been an entirely happy one, or one which can evoke any general admiration. It discloses, on the contrary, a composite of tardy attention to pressing problems opposed, at timés, to a needless urgency to legislate in response. to vocal minority appeal, coupled with paradoxical attempts to appear original while reluctantly copying the finished products of other systems of jurisprudence. This Janus-faced method of legislation is, perhaps, best illustrated in the case of the Copyright Act, although the Patent Act also displays stigmata of -the same tendency . Both Great Britain and the United States have statutory systems in these fields of law which for long have been, in general, the admiration and envy of Canadian lawyers. ®n occasion the Canadian Parliament makes an-attempt a decade late, as in the case of the Copyright Act, to take advantage of the experience of the Mother, of Parlia- ments, without giving the appearance of doing so. Sometimes, too, our legislative conscience receives inspiration from the effective actions of our .neighbours to the south. Whatever may be the source of these stimuli, it will always be to our advantage if we welcome them for consideration and, after due and critical analysis, adapt and adopt the best of them for our own use. It is not a mark of national juvenility to copy openly and unashamedly from other systems of jurisprudence but rather an indication of stature and maturityto admit that older legislatures may have something useful from which to borrow and that older systems of law may have been perfected by experience . 228 The Canadian Bar Review [Vol. XXVI Patents of Invention In 1922 the Patent Act was that of R.S.C., 1906, c. 69. On CertainSeptember 1st, 1923, a new statute was enacted., minor changes were made in the basis,of grant whereby public use or sale of the invention in Canada for more than two years prior to application would invalidate a patent issuing on such application whether the prior use or sale were with the consent of the applicant or not. For the first time a limitation was placed on the claims to be allowed in case of patents relating to substances prepared or produced by chemical processes and intended for food or medicine. 2 Applications for re-issue were limited to a period four years from the date of the first grant.' But the main change had to do with the working provisions. Under the Act of 1906,4 a patent was to cease and determine on the continuance of importation of its subject matter into Canada more than one year after its date, or if the patentee did not, within two years from its date, commence and thereafter con- tinuously carry on in Canada the manufacture of the patented subject matter. The maintenance of this provision precluded Canada's adherence to the International Union for the Protection of Industrial Property as being contrary to Article V of that Convention. In 1923 new provisions were inserted, , which removed the absolute prohibition as to importation and radically softened the provisions as to manufacture. By this amendment Canada was enabled to participate in the advantages of the Convention, thus giving to her inventors the one year priority period during which their corresponding applications might be validly filed in the other countries of the Union. The Act of 1923 set up a system of working conditions according to which a member of the public was permitted to apply to the Commissioner of Patents for the revocation of a patent on the ground that the reasonable requirements of the public were not being satisfied and that adequate manufacture of the patented article, or the patented process, was not being carried on within Canada. A system was set up whereby any person interested might obtain from the Commissioner the grant of a compulsory licence for the use of the invention on reasonable terms. Those sections' of the Act of 1923 followed closely in their phraseology the sections introduced 1 13-14 Geo. V, e. 23. 2 S. 17. 3 S. 27. ' S.38. 4 S. 40. s Ss. 40, 41 . 1948] The Law of Industrial and Intellectual Property _ 229 into the British Act of 1907,7 despite the fact that in 1919, some four years previously, the Imperial legislation upon which they were based was repealed,$ and amended sections, dealing generally with the same subject, but quite different in scope,'were passed. The Act of 1923 was carried into the Revision of 1927 as Chapter 150. Further amendments of a somewhat minor nature were made to the working provisions of the statute in 1928,9 to' the provisions relating to convention applications in 1930,10 and to those relating to conflicting applications, impeachment actions and declarations as to infringement in 1932. 11 A further important change was made in the law by this latter statute as a result of the decision of the Privy Council in Rice v. Christiani & 1Veilson.12 Before that time the phrase "not known or used by others before his invention thereof" contained in the Patent Act 13 had been held to refer to knowledge of a public or open charàcter. 14 The Privy Council pointed out that upon the clear language of the section such a finding was impossible. Parliament, therefore, in the following year, hastened, by a process of legitimatio per subsequens ~natrimonium, to enact section 37A of the Patent Act, 15, which provided that such prior knowledge should only invalidate a subsequent patent if that knowledge had "become available to the public" or had formed the basis of an application for patent. In 1935 the Patent: Act _was given a full-dress revision..' A number of changes and amendments were made but it will suffice to mention only, two of them. In the preceding statutes the basis of grant had been set out generally in terms which provided that "any person who has invented any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement thereof, . " might, upon taking certain steps, obtain a patent for his invention. 17 But by the statute of 1935 18 this phraseology was quite changed and it was provided that a patent should issue, subject to certain qualifica- tions and procedure, to "any inventor of an invention". Upon turning to the interpretation section 11 it is found that "invention" 7 7 Edw. VII, c. 29. 11 9-10 Goo. V, c. 8. 1 18 Goo. V, .c. 4. l0 20-21 Goo. V, c. 34. 1122 Goo. V, c-21 . is [19311 A.C., 770. , 13S. 7. 14 The Queen v. La Force (1894), 4 Ex. C.R. 14; ~Gerrard Wire-Tying Machine Co. Ltd. of Canada v. Cary Mfg. Co., [19261 Ex. C.R. 170 . 16 Now s. 61. - 1B 25-26 Goo. V, c. 32. 17-See e.g. s. 7, 13-14 Geo. V, c._ 23. 18S.26 (1). 19 S. 2 (d). 230 The Canadian Bar Review (Vol. XXVI means any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter". Verily, Parturiunt montes. In the new statute of 1935 the working provisions were radically amended. Sections 64-71 of the act now deal with the question of abuse of exclusive rights under patents in a remarkably comprehensive manner, providing against the following abuses: (a) failure to make or to work the patented invention; (b) importa- tion to the detriment of home manufacture; (c) failure to meet the demand to an adequate extent and on reasonable terms ; (d) preju- dicing, contrary to public interest, the country's trade or industry, or that of particular concerns by refusing a reasonable licence to others; (e) attaching unfair conditions to the acquisition, use, or working of the patented article or process; (f) using a patent for a process to prejudice the manufacture, use, or sale of materials used in that process. These provisions are so widely drawn that it is difficult to conceive of any abuse that is not caught within Thetheir net.20 Commissioner has power at any time after the issue of a patent to require the patentee to provide evidence as to whether a patented invention is being worked within Canada on a commercial scale and, if not, why it is not being done. Upon application, by any interested party, the Commissioner has power to order the grant of a compulsory licence upon such royalty as he shall decide is fair and reasonable, one of the principles being that he shall endeavour to secure the widest possible use of the invention in Canada consistent with the patentee deriving a reasonable advantage from his patent rights." In a proper case the Commissioner has power to order the revocation of a patent.22 These provisions guarding against abuse of patents are, if anything, too harsh on a patentee who has contributed a new and useful invention to the store of public amenities.
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