PUBLIC RECORD OFFICE
PI
C.O.
Reference :-
885
2 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO |
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for inventions within the Colony by the local autho- rities; and as the exercise of that branch of the Royal prerogative has not been delegated to the Lieutenant-Governor by,the Queen's Commission or Instructions, Patents for new inventions, properly so-called, cannot be granted within the Colony, Perhaps an equivalent privilege might be secured to an inventor by Act of Council; but it is doubtful whether it would not be necessary for the Lieute- nant-Governor to reserve a Bill having such an object for the signification of Her Majesty's pleasure, on the ground that it would be un infringement of the Royal prerogative.
2. As to the mode of proving, in the Supreme Court of this Colony, Patents granted in Great Britain, I would first observe, that the point has never arisen here, and therefore I cannot state the law as settled by practice, but only what I conceive would be held to be the law if the case should arise. I apprehend that the Patent itself would readily be. proved by an exemplification under the Great Seal. But in any action for the infringements of a Patent, it would be necessary to prove, not only the Letters- Patent, but also the sufficiency of the specification, and, I think, in the present state of the law, great difficulties would be encountered in giving such proof. The specification, being enrolled or filed in the Court of Chancery in England, could only be proved here by au office or examined copy, which would necessitate the attendance of a witness from England, or a Commission to examine witnesses there. And it does not appear to me that the diffi- culty is obviated by the statute 14 & 15 Vict., cap. 99, for the amendment of the law of evidence, or the "Patents Amendment Act, 1852," 15 & 16 Vict., cap. 83. The former statute renders docu- ments which are admissible in evidence in the Courts of England and Ireland without proof of seal or signature, equally admissible in Colonial Courts; but I am not aware of any law which renders speci- fications so admissible in evidence in the Courts of It is true that the 33rd England or Ireland,
section of the "Patents Amendment Act" before referred to makes copies of specifications, printed by the Queen's printers, prima facie evidence, with out proof, in the Courts of England and Ireland; bat I think it very doubtful whether the former
VAN DIEMEN'S LAND.
Lieutenant-Governor. No. 155. July 5, 1853.
VAN DIEMEN'S LAND.
Lieutenant-Governor, No. 155. July 5. 1853.
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statute (the Law of Evidence Amendment Act ") would be held to apply to such documents, inasmuch as it seems to be confined to documents having some seal or official signature.
3. For the foregoing reasons, I think that no sufficient facilities at present exist for rendering a Patent granted in England, extending to this Colony, available by proof within the Colony, and that if it be deemed desirable to give such facilities, perhaps the simplest mode would be to enact, that upon the application of the patentee or his assignee, within a certain time, the Commissioners of Patents for Inventions (under the "Patent Law Amendment Act, 1852,") shall transmit, or cause to be transmitted, to the Lieutenant-Governor, to be by him sent to the Registrar, to be filed in the Supreme Court (or the transmission might be made to the Registrar direct); and that such Letters-Patent and specification pro- duced by the Registrar, shall be evidence in the Colonial Courts, without further proof. The trans- mission by, or by the authority of, the Commis- sioners, would be a sufficient guarantee for the authenticity of the documents in all cases, and, of course, the Registrar could not file any but such as
had been so transmitted.
4. As to the expediency of the grant of Patents
in England extending to this Colony, that is a question rather of policy than of law. At the present time it app ars to me to be a question of no practical importance; as the deficiency of labour, and absence of other facilities for manufacture, even of the simplest kind, renders it extremely improbable that any attempt at infringement of a Patent, or competition with Great Britain in any kind of manufacture, can be successfully made in this Colony
for many years to come. On principle, however, I see no reason why an inventor should not be pro- tected in the Colonies, as well as in Great Britain,
in the enjoyment of the privilege secured to him by the Patent, as a reward for the benefit bestowed upon mankind by his invention.
Mr. Attorney-General Fleming.-Having bad the advantage of conferring with my colleague upon the subject raised by the circular despatch transmitted for our opinion, and having arrived at the same conclusion with him on the various points submitted. Y
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