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French CJ

The origin of patents for inventions can be traced back to the Statute of Monopolies of 1623, declaring all monopolies void, subject to the exception in s 6 of that Statute that:

"any letters patents and grants of privilege for the … making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use".

That provision still forms part of the definition of "patentable invention" in the Patents Act 1990 (Cth). Its purpose was succinctly stated by Cornish, Llewellyn and Aplin :

"the terms of the section make it plain that an act of economic policy was intended: the objectives were the encouragement of industry, employment and growth, rather than justice to the 'inventor' for his intellectual percipience."

Copyright is defined by reference to exclusive rights of, inter alia, reproduction and publication of works and subject matter other than works. It is classified in the Copyright Act as "personal property" which is transmissible by "assignment, by will and by devolution by operation of law."

Registered trade marks, designs, patents and copyright in works and other subject matter give rise to, or constitute, exclusive rights which are property to which s 51(xxxi) of the Constitution can apply. They are all rights which are created by statute in order to serve public purposes. They differ in their histories, their character and the statutory schemes which make provision for them. It is important in that context to bear in mind the adoption by this Court in Campomar of the statement by Dixon J in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor that: