STATUTORY RULES.
1940. No. 191.
REGULATION UNDER THE NATIONAL SECURITY ACT 1939-1940.*
I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulation under the National Security Act 1939-1940.
Dated this tenth day of September, 1940.
(SGD.) GOWRIE.
Governor-General.
By His Excellency’s Command,
Minister of State for Defence Co-ordination.
Amendment of the National Security (General) Regulations.†
After regulation 57 of the National Security (General) Regulations the following regulation is inserted:—
Use of inventions by the Commonwealth.
“57a.—(1.) Any Minister may, if it appears to him to be necessary or expedient so to do in the interests of the public safety, the defence of the Commonwealth or the efficient prosecution of the war, by himself or by such agents, contractors or others as are authorized in writing by him, at any time after a patent has been granted or an application for a patent has been received in the Patent Office (whether the patent has been granted or the application has been received before or after the commencement of this regulation) make, use or exercise the invention for the services of the Commonwealth on such terms as are, either before or after the making, use or exercise thereof, agreed upon, or, in default of agreement, as are fixed by the Attorney-General.
“(2.) The terms of any agreement or licence entered into between an inventor, applicant or patentee and any person other than a person referred to in the last preceding sub-regulation shall be inoperative so far as concerns the making, use or exercise of the invention for the services of the Commonwealth.
* Notified in the Commonwealth Gazette on , 1940.
† Statutory Rules 1939, No. 87, as amended by Statutory Rules 1939, Nos. 103, 174 and 177; and 1940, Nos. 8, 32, 44, 45, 67, 71, 91, 93, 113, 120 and 127.
4742.—7/14.8.1940.—Price 3d.
“(3.) The Attorney-General may, in fixing the terms for the making, use or exercise of the invention, take into consideration any benefit or compensation which the patentee, or any person interested in the patent, has received directly or indirectly from the Commonwealth in respect of the patent.
“(4.) The right to use an invention for the services of the Commonwealth under this regulation shall include power to sell any articles made in pursuance of that right which are no longer required for the services of the Commonwealth.”.
By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.
Overview
The Statutory Rules 1940, No. 191, issued under the National Security Act 1939-1940, addresses the need to ensure that inventions can be utilised by the Commonwealth for national security purposes during times of war or crisis. Enacted by the Governor-General in Council, this regulation was introduced to provide a legal framework that allows the Commonwealth to use patented inventions for public safety, defence, and efficient war prosecution without the consent of the patent holder, provided that it is deemed necessary or expedient. The policy objective is to facilitate the expeditious use of critical technological advancements to support national security efforts, ensuring that the public interest is prioritised during emergencies.
Scope and Application
The Statutory Rules of 1940, No. 191, amend the National Security (General) Regulations under the National Security Act 1939-1940. This regulation pertains to the use of inventions by the Commonwealth and applies to any invention that has been patented or for which a patent application has been lodged, irrespective of when this occurred in relation to the commencement of the regulation. It allows any Minister, in the interests of public safety, defence of the Commonwealth, or efficient prosecution of war, to use an invention for the Commonwealth's services, either directly or through authorised agents or contractors. The regulation overrides any existing agreements or licenses concerning the invention's use, except those with authorised persons. The Attorney-General can fix the terms of use, considering any benefits or compensation received by the patentee or interested parties from the Commonwealth. This right includes the power to sell any surplus articles made using the invention. The regulation extends to the entire Commonwealth and is applicable nationwide, without specific exclusions or exemptions, though its application may be influenced by subordinate instruments or ministerial discretion.
Key Provisions
The main operative section of this Statutory Rule is regulation 57a, introduced under the National Security (General) Regulations (1). This regulation allows any Minister to authorise the use of inventions by the Commonwealth in the interest of public safety, defence, or the efficient prosecution of war. This authorisation can occur at any time after a patent has been granted or an application for a patent has been received, regardless of whether this happens before or after the commencement of this regulation (1). The regulation also specifies that the terms of any agreement or licence between an inventor, applicant, or patentee and any person other than an authorised agent of the Commonwealth become inoperative concerning the use of the invention for Commonwealth services (2). The Attorney-General has the power to fix the terms for using the invention, taking into account any benefits or compensation the patentee has received from the Commonwealth (3). Furthermore, the right to use the invention for Commonwealth services includes the power to sell any articles produced using that right that are no longer needed for Commonwealth services (4).
This Act imposes several obligations and requirements on the parties involved. The Minister has the authority to use inventions for the Commonwealth's services, provided it is deemed necessary or expedient in the interests of public safety, defence, or the efficient prosecution of war. The Minister must ensure that any agents, contractors, or others authorised in writing to use the invention adhere to the terms agreed upon or, if no agreement is reached, the terms fixed by the Attorney-General (1). The Attorney-General is tasked with fixing the terms for using the invention, considering any benefits or compensation the patentee has received from the Commonwealth (3). Additionally, any agreements or licences between an inventor, applicant, or patentee and other parties become inoperative concerning the use of the invention for Commonwealth services, ensuring that the Commonwealth's interests take precedence (2).
The Statutory Rule imposes consequences for breaches of the regulation. While specific offences and penalties are not detailed in the text, the regulation's enforcement likely falls under the broader framework of the National Security Act 1939-1940, which could encompass both civil and criminal penalties. The regulation's primary focus is on ensuring that the use of inventions for the Commonwealth's services is lawful and in the public interest, with any breaches potentially leading to legal action under the broader act. The terms for using the invention are to be fixed by the Attorney-General, ensuring that any disputes or breaches are resolved in a manner that considers the interests of both the patentee and the Commonwealth (3). This ensures that the regulation is enforced fairly and in accordance with the public interest.