Vol 7 No 1 - Roger Williams University School of Law

Because, in part of the joint reasons the other members ofthis Court have repeatedly referred to the considerationof the ambit of “patents of invention” in 1900—lest thatconsideration be thought to control, or even significantlyto influence, the contemporary meaning of theconstitutional words, I am bound to express my differentviewpoint . . . . [the] ultimate criterion was not pre-Federation legal understandings but a search for the“essential characteristics” of the words used in theConstitution . . . . The words used in the Constitution,and specifically those used in s 51(xviii), are not shackledto the legal understandings about the patents power in1900 . . . . Given the objects of the head of power, whichinclude the facilitation and protection of intellectualinventiveness within Australia, it would be speciallydestructive of the achievement of those objects if thegrant of power were to be attached—even as a primaryreference point—to the particular notions which, up to1900, “copyrights, patents of inventions and designs andtrade marks” had been protected by the law . . . . To thefull extent that the language of the Constitution warrantsand that other important values which it upholds permit,meaning should be given to a provision such as s 51(xviii)in a way that allows the section to respond to the verygreat variety of inventiveness that may be considered bythe Federal Parliament to necessitate protection for the“products of intellectual effort.”8181. Id. at paras. 90, 103, 132-33, 135 (emphasis added). Also consider thefollowing passage from Judge Kirby’s judgment:However, the advent of biogenetically engineered organisms and ofinventions in the field of information technology have stimulated anapparently increased willingness on the part of United States courts torecognise the way in which patents and analogous forms of legal protectioncan sometimes encourage technological innovation to the economic and socialbenefit of the United States and beyond. The specific inclusion of s 51(xviii) inthe Australian Constitution affords a further reason for assigning to s51(xviii) a meaning that permits the protection of “products of intellectualeffort” in the variety in which such products now manifest themselves andthe even greater variety in which they can be expected to appear in thefuture.Id. at para. 134.