NATIONAL SECURITY (INDUSTRIAL PROPERTY) REGULATIONS.*
Citation. 1. These Regulations may be ited as the National Se urity (Industrial Property) Regulations.*
Administration. 2. These Regulations shall be administered by the Attorney-General.
Reg. 3 repea ed by Act No. 77, 1946.
References to Commissioner, &c., to inc ude references to Deputy. 4. Any referen e in these Regulations to the Commissioner of Patents, the Registrar of Trade
Marks or the Registrar of Designs shall in lude a referen e to a Deputy Commissioner of Patents, the Deputy Registrar of Trade Marks or a Deputy Registrar of Designs, respe tively.
Prohibition of pub ication of information with respect to inventions and designs, &c.
5.—(1.) Subje t to any dire tions of the Attorney-General, the Commissioner of Patents or the Registrar of Designs may, notwithstanding anything ontained in any A t, if it appears to him to be ne essary or expedient so to do in the interests of the publi safety or the defen e of the Commonwealth, by order, prohibit or restri t the publi ation of information with respe t to the subje t matter of any appli ation made (whether before or after the ommen ement of this
* The National Se urity (Industrial Property) Regulations in for e under the Defence ransition (Residual Provisions) Act 1952 omprise the following Statutory Rules:—
Year and Number. Date of Notifi ation in Gazette and of Commen ement. 1943, No. 7 …………………………… 13th January, 1943 1944, No. 93 …………………………… 23rd June, 1944 113 …………………………… 28th July, 1944 1945, No. 146 …………………………… 13th September, 1945 1956, No. 29 …………………………… 12th April, 1956
These Regulations were also amended by the Defence (Transitional Provisions) Act 1946 (No. 77, 1946).
regulation) for the grant of a patent or the registration of a design and prohibit or restri t the ommuni ation of su h information to any person or to parti ular persons or lasses of persons.
(2.) A person shall not publish or ommuni ate any information in ontravention of any order ontinued in for e under regulation 3 of these Regulations or made under the last pre eding sub- regulation.
Sub-reg. (3.) omitted by 1945, No. 146.
Commissioner may refrain from or de ay certain actions 6. Subje t to any dire tion of the Attorney-General, the Commissioner of Patents, the
Registrar of Trade Marks or the Registrar of Designs may, notwithstanding anything ontained in any A t, if it appears to him to be ne essary or expedient so to do in the interests of the publi safety or the defen e of the Commonwealth, or by reason of ir umstan es attributable to the war, refrain from doing, or delay the doing of, anything whi h he would otherwise be required to do in onnexion with any appli ation made (whether before or after the ommen ement of this regulation) for the grant of a patent or the registration of a trade mark or design.
Use of inventions and designs for services of the Commonwea th. 7.—(1.) At any time after a patent has been granted or an appli ation for a patent has been
re eived in the Patent Offi e, or at any time after a design has been registered or an appli ation for the registration of a design has been re eived in the Designs Offi e, the Commonwealth may make, use, exer ise and vend the invention, or may apply the design, in onnexion with the publi safety or defen e of the Commonwealth, and any ontra tor with the Commonwealth, and any person performing any work or servi e, or supplying any goods, ne essary for the exe ution of any ontra t with the Commonwealth, may make, use, exer ise and vend any su h invention or may apply any su h design, for the servi es of the Commonwealth in onnexion with the publi safety or defen e of the Commonwealth.
(2.) Where any patented invention is so made, used, exer ised or vended, or any registered design is so applied, the terms for the making, use, exer ise or vending of the invention, or for the appli ation of the design, shall be su h terms as are, either before or after the making, use, exer ise or vending of the invention or the appli ation of the design, agreed upon with the approval of the Attorney-General between the Commonwealth, or the ontra tor or person performing the work or servi e or supplying the goods, as the ase may be, and the patentee or the registered proprietor of the design, or, in default of agreement, as are fixed—
(a) by the Attorney-General; or (b) on referen e by the Attorney-General of the matter to the High Court or the Supreme
Court of a State—by the Court to whi h the matter is referred.
(3.) The High Court or the Supreme Court shall, upon a referen e being made thereto under the last pre eding sub-regulation, have jurisdi tion to fix the terms for the making, use, exer ise or vending of the invention or the appli ation of the design, as the ase may be.
(4.) Any agreement or li en e (whether entered into before or after the ommen ement of this regulation) fixing the terms on whi h any person (other than the Commonwealth) may make, use, exer ise or vend an invention, or apply a design, shall be inoperative with respe t to the making, using, exer ising or vending of the invention after the ommen ement of this regulation, or the
appli ation of the design after the ommen ement of this regulation, whether in pursuan e of the authority onferred by sub-regulation (1.) of this regulation or otherwise, for the servi es of the Commonwealth in onnexion with the publi safety or defen e of the Commonwealth, unless the agreement has been approved by the Attorney-General.
(5.) An agreement entered into in pursuan e of sub-regulation (2.) of this regulation shall not make provision for any payment in respe t of matters not arising dire tly from the right to make, use, exer ise or vend the invention, or to apply the design. to whi h the agreement relates.
(6.) The High Court or the Supreme Court may in fixing, and the Attorney-General may in fixing or approving, the terms for the making, use, exer ise or vending of an invention, or for the appli ation of a design, take into onsideration any ompensation whi h the inventor, appli ant, patentee, li ensee. or any person interested in the invention, or the appli ant, registered proprietor or any person interested in the design. has re eived dire tly or indire tly from the Commonwealth in respe t of the invention or design.
(7.) A ontra tor with the Commonwealth, and a person performing any work or servi e, or supplying any goods, ne essary for the exe ution of any ontra t with the Commonwealth, in onnexion with the publi safety or the defen e of the Commonwealth, shall not make any harge against the Commonwealth, or in lude in the ost of any su h work, servi e or goods, any amount, either as a separate item or otherwise, in respe t of the right to make, use, exer ise or vend any invention, or the right to apply any design, unless the amount is payable under an agreement or li en e whi h is not inoperative by virtue of these Regulations.
(8.) No a tion for infringement shall lie against the Commonwealth or any person in respe t of the making, use, exer ise or vending of an invention, or the appli ation of a design, whether under sub-regulation (1.) of this regulation or otherwise, in onnexion with the publi safety or defen e of the Commonwealth or for the servi es of the Commonwealth in onnexion with the publi safety or defen e of the Commonwealth.
(9.) The right to make, use, exer ise and vend an invention, or to apply a design, under sub- regulation (1.) of this regulation shall in lude power to sell any goods made in pursuan e of that right whi h are no longer required by the Commonwealth in onnexion with the publi safety or the defen e of the Commonwealth, and a pur haser of any goods so sold, and any person laiming through him, shall be entitled to deal with the goods as if the Commonwealth were the patentee of the invention or the registered proprietor of the design.
Dec aration may be sought as to use of invention or design
Inserted by 1944, No. 93 7A.—(1.) A patentee who onsiders that a patented invention has been made, used, exer ised
or vended, or the registered proprietor of a design who onsiders that a design has been applied, in pursuan e of the authority onferred by sub-regulation (1.) of the last pre eding regulation, may apply to the High Court for a de laration a ordingly and the High Court shall have jurisdi tion to hear and determine the matter.
(2.) In any pro eeding under the last pre eding sub-regulation—
(a) the Commonwealth shall be the defendant; and (b) the Commonwealth may, by way of ounter laim in the pro eeding, apply for the
revo ation of the patent, or the re tifi ation of the Register of Designs, as the ase may
be, and the provisions of the Patents Act 1903-1935 with respe t to the revo ation of patents, or of the Designs Act 1906-1934 with respe t to the re tifi ation of the Register of Designs, as the ase may be, shall, mutatis mutandis, apply in relation to the ounter laim.
Reg. 8 repea ed by Act No. 77, 1946.
Protection of persons disc osing Inventions, &c., to Commonwea th for investigation.
9. The publi ation, whether before or after the ommen ement of this regulation, in the interests of the publi safety or the defen e of the Commonwealth, of any invention or design—
(a) to the Commonwealth or to any authority of the Commonwealth; or (b) to any person authorized by a Minister or by any authority of the Commonwealth to
investigate the invention or design, shall not, nor shall anything done for the purpose of the investigation, be deemed publi ation or use of the invention or design so as to prevent the grant of a patent for the invention or the registration of the design or so as to invalidate any patent for the invention or the opyright in the design.
Regs. 10 and 11 repea ed by 1956, No. 29.
High Court may order granting of compu sory icences in certain circumstances.
12.—(1.) Where—
(a) the time within whi h an appli ation for a patent may be made under se tion 121 of the Patents Act 1903-1935 has, in pursuan e of se tion 9 of the Patents, rade Marks, Designs and Copyright (War Powers) Act 1939-1940, been extended;
(b) a patent has been granted on the appli ation; and (c) prior to the date on whi h the spe ifi ation be ame open to publi inspe tion, a person
made, used, exer ised or vended the invention or took steps to do so, the High Court may, on the appli ation of that person, order the patentee to grant a li en e under the patent to that person for su h period and on su h terms (if any) as the Court thinks fit.
(2.) Where—
(a) the Commissioner of Patents has delayed the advertisement of the a eptan e of an appli ation and omplete spe ifi ation, whether under regulation 21 of the National Se urity (General) Regulations or under regulation 6 of these Regulations;
(b) a patent has been granted on the appli ation; and (c) during the period during whi h the advertisement of the a eptan e was delayed, a
person made, used, exer ised or vended the invention or took steps to do so, the High Court may, on the appli ation of that person, order the patentee to grant a li en e under the patent to that person for su h period and on su h terms (if any) as the Court thinks fit.
(3.) The patentee and any person laiming an interest in the patent as ex lusive li ensee shall be made a party to any pro eedings under this regulation and the Commissioner of Patents shall be entitled to appear and be heard on the hearing of the appli ation.
(4.) In onsidering any appli ation under this regulation, the Court shall have regard (amongst other things) to the ir umstan es under whi h the appli ant ommen ed to make, use, exer ise or vend the invention, or to take steps to do so, and shall not grant the appli ation unless the Court is satisfied that the appli ant has a ted in good faith.
(5.) An order under this regulation dire ting the grant of a li en e shall, without prejudi e to any other method of enfor ement, operate as if it were embodied in a deed exe uted by the patentee and all ne essary parties.
Protection of trade marks under war circumstances. 13.—(1.) The Registrar of Trade Marks may renew the registration of a trade mark,
notwithstanding that there has not been substantial user thereof sin e the date of the last registration, if the Registrar is satisfied that the want of substantial user thereof is due to ir umstan es attributable to the war.
(2.) An order shall not be made under se tion 72 of the rade Marks Act 1905-1936 for the removal of a trade mark from the Register of Trade Marks if the Court is satisfied that the want of bona fide user of the trade mark is due to ir umstan es attributable to the war.
(3.) The reputation whi h a trade mark possesses shall not be affe ted by any non-user or redu ed user thereof whi h is due to ir umstan es attributable to the war.
Modification of aw as to trade marks in re ation to essentia imports. 14.—(1.) No a tion shall lie for the infringement of a registered trade mark or for passing off
against any person in relation to the use of a mark upon or in onnexion with goods whi h are essential imports if the mark or get-up of the goods is identi al or nearly identi al with a mark or get-up applied to the goods outside Australia by the overseas supplier thereof.
(2.) The use in Australia, upon or in onnexion with goods whi h are essential imports, of a mark whi h was applied to the goods outside Australia by the overseas supplier thereof shall not be deemed user of a trade mark for the purpose of establishing rights under the rade Marks Act 1905- 1936 or at ommon law.
(3.) In any pro eedings for any offen e under Part IX. of the rade Marks Act 1905-1936 it shall be a defen e if the person harged proves that the goods were essential imports and that the mark applied to the goods or the get-up thereof was identi al or nearly identi al with a mark or get- up applied to the goods outside Australia by the overseas supplier thereof.
(4.) In this regulation—
“essential imports” means goods imported by or on behalf of the Commonwealth or an authority of the Commonwealth for use in onnexion with the publi safety or the defen e of the Commonwealth;
“overseas supplier” means, in relation to any goods, a person arrying on outside Australia a business in the ourse of whi h a onnexion in the ourse of trade between him and the goods subsisted.
Amended by 1944, No. 113. (5.) A ertifi ate under the hand of the Comptroller-General of Customs, or of any offi er
appointed by him to give su h ertifi ates, to the effe t that goods bearing a mark spe ified in the ertifi ate are or were essential imports shall be eviden e of that fa t for the purposes of this regulation.