Agendum 1059A CANBERRA, 26 February 1946
GERMAN REPARATIONS
1. Cabinet on 7th February, 1946, (Agendum 1059 [1]) decided that further information should be supplied on the following:-
(a) The position regarding the acquisition by the Australian Government or Australian citizens of the rights to patents registered in Germany.
(b) German patents the rights to which in Australia have already been secured by Australians.
(c) The expropriation of enemy property in Australia.
2. With regard to paragraph 1(a) above, Attorney-General’s Department has advised ‘that patents registered in Germany do not thereby derive any force in Australia which would prevent any person from applying the inventions in this country. No question of “aquisition of the rights to patents registered in Germany”
therefore appears to arise unless paragraph 1(a) refers to the right to apply for a patent in Australia based upon the acquired Convention rights flowing from the application in Germany.’ In this case ‘under the International Convention for the protection of Industrial Property, a person who applies for a patent in one of the countries of the Union has the right to apply in any or all of the other countries of the Union within twelve months, and any patent granted on any such application is dated as of the same date as the original application. Consequently any publication which may have occurred in any of those other countries after the date of the application in the original country and prior to lodgment of the application in any other such country would not invalidate a patent granted in that other country.’ 3. in relation to paragraph 1(b) the following information has been obtained from Attorney-General’s Department-
‘A number of patents have been granted in Australia which are owned by German nationals or German companies … It would be possible to provide for the transfer to the Commonwealth Government of all German-owned Australian patents. if that were done it would be necessary for the Commonwealth to police the inventions, the subject of the patents, for the purpose of seeing that all those who made use of the inventions paid appropriate compensation. The Commonwealth has not at present any machinery by which this could be done. Indeed, it may be doubtful whether any person not engaged in any particular trade or manufacture could hope to police the use of a patented invention used in that manufacture or trade. An alternative possibility would be to make provision whereby all German-owned Australian patents were revoked. It would then be possible for any person in Australia to make use of the inventions, the subjects of those patents, without incurring an obligation to pay compensation to the owners of the patents. Such action would not, of itself, be a form of reparations but would indirectly be of some value … to the Australian community as a whole.’
4. The leader of the Australian Scientific Mission to London, J.
R. S. Cochrane, who was Technical Adviser to the Australian Delegate to the Reparations Conference [2], has reported on the subject of German Patents and Technical and Scientific processes that information obtained by the British and American Occupation forces is being made freely available to the Australian Scientific Mission. Cochrane has further reported that it is proposed to hold an Anglo-American Conference on German Patents within the next few months and at this Conference there will be full Dominion Representation.
5. In addition discussions which were held in London between the Australian Resident Minister, the Dominions Office, Dr. E. R.
Walker, Counsellor, Australian Legation, Paris, who was Australian Delegate to the Inter-Allied Reparations Agency Conference, and J.
R. S. Cochrane confirm that the value of patents and industrial processes will not be taken into account as part of Australia’s reparations share, nor is Australia’s right to share in Patents and processes limited in any way by signing the Reparations Agreement (see Annex A. Cable 1190 from High Commissioner’s Office, London [3]).
6. On the question of the expropriation of enemy property in Australia, Article 6 of the Reparations Agreement states, inter alia-
‘A. Each Signatory Government shall under such procedures as it may choose, hold or dispose of German enemy assets within its jurisdiction in manners designed to preclude their return to German ownership or control and shall charge against its reparation share such assets (net of accrued taxes, liens, expenses of administration and other in rem charges against specific items and legitimate contract claims against the German former owners of such assets)’.
7. The Department of the Treasury advises that the value of German assets held in Australia by the Controller of Enemy Property which would be subject to Article 6 of the Agreement amounts to 650,000, made up as follows:
Real Estate Holdings 10,000 Interests under Trusts, Wills, Settlements 300,000 Bank Balances 35,000 Interests in Australian Companies 45,000 Debts 250,000 Miscellaneous 10,000 The above figures do not include assets of German Companies under the supervision of Controllers appointed by the High Court in pursuance of Section 13 of the Trading with the Enemy Act. The sum held under this Act amounts to 109,422 part of which only represents German-owned assets.
8. It is clear from Article 1(e) of the Agreement that the value of this property when expropriated will be charged against category A Type Reparations. Category A includes all types of reparations other than industrial and other capital equipment, merchant ships and inland water transport.
9. In connection with industrial plant and equipment which will be available for Reparations purposes the Allied Control Council for Germany has so far furnished details of 80 plants and factories for which claims were requested. The Department of Munitions and Secondary Industries Commission have expressed keen interest in many of these factories and a claim on behalf of Australia has been submitted to the Allied Control Council.
10. It is estimated that the total value of plant and equipment which Australia would receive if a party to the Reparations Agreement would amount to 3-6 million sterling.
11. Article 1 of Part IV of the Reparations Agreement provides that the Agreement will enter into force when ‘it has been signed on behalf of the Governments collectively entitled to not less than 80 per cent of the aggregate of shares in Category A of German reparations’. The Agreement has already been signed on behalf of Governments entitled to such shares and therefore the Agreement is already in operation. The InterAllied Reparations Agency established by the Agreement came [sic] into being in Brussels on 28th February, 1946. The Agency has the responsibility of determining the recipient country of factories and plant which have been declared available for reparations and will therefore consider Australia’s case for the plant on which a claim has been lodged. In order to avoid the exclusion of Australia from the initial meetings of the Agency and thus possibly lose the right to some of the plant for which a claim has been lodged, authority was given on 22nd February, 1946, for the signing of the Agreement on the understanding that the matter is still under consideration by the Government. [4]
12. The matter is submitted for cabinet consideration and direction whether the signing of the Reparations Agreement is to be confirmed. [5]
H. V. EVATT
Minister of State for External Affairs
_
1 Document 65.
2 i.e. the Inter-Allied Reparations Conference in Paris, 9 November - 21 December 1945. See Document 13.
3 Document 101.
4 See Document 105.
5 Cabinet approved signature of the agreement on 4 March.
_
[AA:A2700, VOL. 23]