H—lOA

132. We do not think, however, that it is within our province to decide whether the evidence placed before us in connection with this latter dispute does or does not show that an abuse of monopoly has taken place. Our concern, we think, is to consider whether if such a situation should arise in any industry, our present law would provide a prompt and effective remedy. We think it does not, but, for the reasons given in paragraph 131, we do not propose to refer to our present law in detail, and now turn to the examination of the provisions of the British Act of 1949. It is necessary for this purpose to review the changes made by that Act. 133. The following are the main differences between the grounds available in seeking a " compulsory licence " under the British Act of 1949 and those available under section 29 of the present New Zealand Act, which, as we have already stated, is on this point substantially the same as section 27 of the earlier British Act of 1907. Section 37 of the British Act of 1949 sets out the grounds upon which a compulsory licence or a licence of right may now be obtained, while section 29 of the New Zealand Act, as amended, sets out the grounds at present available in New Zealand : (a) The ground that the patented invention is not being worked on a commercial scale is no longer qualified by the words : " . . . and no satisfactory reason can be given for such non-working " —see subsection (2) (a) of section 37 of the British Act of 1949 and subsection 2 (a) of section 29 of the New Zealand Act. (b) The effect of subsections (2) (d) and (e) of section 29 of the New Zealand Act has been incorporated in a modified form in subsections (2) (d) (iii) and (e) of section 37 of the British Act of 1949. In this regard reference may be had to the second interim report of the Swan Committee, paragraphs 27 to 65. In our view these new subsections represent a considerable improvement in drafting and make clear matters which gave rise to considerable difficulty under the previous British Act. (c) Subsections (2) (d) (i) and (ii) of section 37 of the British Act of 1949 introduce new grounds, of which—from the New Zealand point of view—the second in particular is very important. These two subsections read as follows—(d) That by reason of the refusal of the patentee to grant a licence or licences on reasonable terms—(i) A market for the export of the patented article manufactured in the United Kingdom is not being supplied ; or (ii) The working or efficient working in the United Kingdom of any other patented invention which makes a substantial contribution to the art is prevented or hindered; or . . . Turning to section 37, subsections (2) (d) (ii), it was pointed out in evidence before us that the grant of a patent under certain circumstances may have a restrictive effect on the development of a particular technology, inasmuch as, in the absence of any right to use the patented invention, the holders of any improvement patents thereon would be debarred by fear of the possibility of infringement from exploiting such patents whilst the earlier patent was in force. It may be unnecessary to remark that it is a truism of patent law that the fact that a defendant in an action for infringement himself has a patent in respect of his particular process or apparatus does not in any way affect the question of infringement of an earlier patent. The only point at issue is whether the apparatus manufactured or the process used by the owner of the second patent comes within the claims of the original patent. If it does, then the fact that such latter process or apparatus adopts with additions, or is otherwise an improvement on, the original patented invention is immaterial to the question of infringement.

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