Patents Act 1921

Legislation au C1921A00024 Not in force Act

Legislation content

 

PATENTS.

 

No. 24 of 1921.

An Act to amend the Patents Act 1903–1909 and for other purposes.

[Assented to 15th December, 1921.]

BE it enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

Short title and citation.

1.—(1.) This Act may be cited as the Patents Act 1921.

(2.) The Patents Act 1903–1909 is in this Act referred to as the Principal Act.

(3.) The Principal Act as amended by this Act may be cited as the Patents Act 1903–1921.

2. After section four a of the Principal Act, the following section is inserted:—

Extension of Act to New Guinea.

“4b.—(1.) On and after a date to be fixed by proclamation, this Act shall apply to the Territory of New Guinea as if that Territory were part of the Commonwealth, and no application for a patent under any patent law (other than this Act) applying to that Territory shall be receivable except pursuant to some right previously acquired.

(2.) For the purposes of the application of this Act to the Territory of New Guinea, any reference in this Act to the Commonwealth or to Australia shall be deemed to include a reference to the Territory of New Guinea.


(3.) Nothing in this section shall affect—

(a) any application for a patent lodged at the Patent Office prior to the date fixed by proclamation under this section, or any patent granted or any application so lodged; or

(b) any application for a patent lodged or made in New Guinea prior to the said date, or any patent granted on any application so lodged or made.”.

Term of patent.

3.—(1.) Section sixty-four of the Principal Act is amended by omitting from sub-section (1.) thereof the word “fourteen” and inserting in its stead the word “sixteen”.

(2.) Any patent the original term of which had not expired at the date of the commencement of this section shall have effect as if the term mentioned in the patent was sixteen years instead of fourteen years, subject to the condition that any licence existing at that date which has been granted for the term of the patent shall be treated as having been granted for the term as so extended if the licensee so desires.

(3.) Where any party to a contract with the patentee or any other person, entered into before the nineteenth day of November One thousand nine hundred and seventeen, is subjected to loss or liability by reason of the extension of the term of any patent under the provisions of this section, the Court shall have power to determine in what manner and by which parties such loss or liability shall be borne.

Extension of term of patent on petition to Supreme Court.

4. Section eighty-four of the Principal Act is amended—

(a) by omitting from sub-section (5.) thereof the words “seven or in exceptional cases fourteen” and inserting in their stead the words “five years, or, in exceptional cases, ten”; and

(b) by adding at the end thereof the following sub-sections:—

“(6.) Where, by reason of hostilities between His Majesty and any foreign State, the patentee as such has suffered loss or damage (including loss of opportunity of dealing in or developing his invention owing to his having been engaged in work of national importance connected with such hostilities) an application under this section may be made by originating summons instead of by petition, and the Court in considering its decision may have regard solely to the loss or damage so suffered by the patentee:

Provided that this sub-section shall not apply if the patentee is a subject of such foreign State as aforesaid, or is a company the business of which is managed or controlled by such subjects or is carried on wholly or mainly for the benefit or on behalf of such subjects, notwithstanding that the company is registered within His Majesty’s Dominions.

“(7.) Notwithstanding anything contained in this section the Court may, in its discretion, either before or after the expiration of the term of a patent extend the period within which proceedings may be taken for the extension of the term of the patent, whether such proceedings are by petition or by originating summons.”.

International arrangements for protection of  invention.

5. Section one hundred  and twenty-one of the Principal Act is amended by inserting-

(a) in sub-section (1.) thereof, after the words "protection of inventions" the words "or the legal representative or assignee of that person" ; and

(b) by omitting the word" his" (second occurring) and inserting in its stead the word "the".

Validation  of Patents, Trade Marks and Design Regulations 1920

6. The Patents, Trade Marks and Designs Regulations 1920, being Statutory Rules 1920, No. 61, shall be deemed to be as valid and effectual as if  they were enacted in this Act.

 

Overview

The Patents Act 1921 was enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, to amend the existing Patents Act 1903–1909 and address certain gaps and issues in the existing patent legislation. This Act primarily aimed to extend the application of the patent laws to the Territory of New Guinea, modify the term of patents, and provide for the extension of the term of patents under specific circumstances, such as during times of hostilities. Additionally, it incorporated international arrangements for the protection of inventions and validated certain regulations. The policy objective, as evident from the Act, is to provide a more comprehensive and flexible framework for patent protection in Australia, including its territories, and to ensure that patents are granted and managed in a manner that supports innovation and economic growth while also considering the interests of patent holders and the public.

Scope and Application

The Patents Act 1921 applies to patents within the Commonwealth of Australia, including the extension to the Territory of New Guinea as specified in section 4b. This legislation amends the Patents Act 1903–1909, referred to as the Principal Act, and provides for the administration and regulation of patents in Australia, as well as the extension of the term of patents under certain conditions. The Act applies to all patents granted under Australian law, including those filed before and after the commencement of the Act, with specific provisions for those already in force in New Guinea. It also allows for the extension of patent terms and the application of international arrangements for the protection of inventions. The Act does not affect any existing applications or patents prior to the specified commencement date in New Guinea, nor does it affect patents granted under other laws prior to the application of this Act in New Guinea. Subordinate instruments may further define the application and administration of the Act.

Key Provisions

The Patents Act 1921 introduces several amendments to the existing Patents Act 1903–1909, expanding its application and modifying certain provisions related to patent terms and international protection. Section 2 of the Act extends its application to the Territory of New Guinea, effective from a date determined by proclamation, and specifies that only applications under this Act will be accepted in New Guinea, except for those with pre-existing rights (section 4b). Section 3 extends the term of all patents from fourteen to sixteen years. This extension applies retroactively to patents that were not yet expired at the commencement of this Act, provided that any pre-existing licenses may be extended if the licensee agrees (section 3(2)). The Act also grants courts the authority to allocate losses or liabilities arising from this extension, if any party to a pre-existing contract is adversely affected (section 3(3)). Furthermore, section 4 revises the conditions for extending the term of a patent, reducing the standard period from seven years (or fourteen in exceptional cases) to five years (or ten in exceptional cases) and introduces provisions for extensions due to war-related disruptions (section 4(6) and (7)). Under the Act, patentees or their legal representatives are now eligible to seek protection for their inventions abroad, and the regulations pertaining to patents, trade marks, and designs from 1920 are affirmed as valid (section 5 and 6). The amended Act imposes obligations on patentees to ensure their inventions are protected under the extended terms and conditions. It also mandates that any application for a patent in New Guinea must adhere to the provisions of this Act, barring any pre-existing rights. Additionally, the Act requires patentees to consider the implications of the extended terms on existing licenses and contractual agreements, and to seek court intervention if necessary to resolve any disputes arising from such extensions. Breaches of the provisions outlined in the Patents Act 1921 may lead to various legal consequences. For instance, submitting an application for a patent in New Guinea under any other patent law after the effective date of this Act would be illegal, unless covered by pre-existing rights. Additionally, failure to adhere to the mandated extension of patent terms or to address the reallocation of losses or liabilities in pre-existing contracts could result in legal disputes. The Act does not explicitly outline specific penalties for breaches; however, such violations could lead to civil litigation, with potential outcomes including monetary compensation or specific performance orders as determined by the courts.

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Intellectual Property Law
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.