IN THE MATTER OF HIGGINSON AND ARUNDEL'S PATENT

430 No. 13.] REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. [Vol. XLIV~ In the Matter of Higginson and Arundel's Patent. IN THE HIGH OOURT OF JUSTICE-OHANCERY DIVISION. Before Mr. JUSTICE TOMLIN. April 27th and 28th, 1927. IN THE MATTER OF HIGGINSON AND ARUNDEL'S PATENT. Patent.-.Application by Originating Summons for an extension of the term :) of the Paten,t.-Opposition.-Comvrnercial utility.-Agreemen.t limiting market. -i-Loss due to hostilities.-Post-war profits.-Extension of two and a half years granted.-Patents and Designs Acts, 1907 and 1919, Section 18, sub-section (6). H. and A. were the Grantees of a Patent granted in 1911 in respect of an t,n-vention of "Improvements in the Liquid Fuel Supply Arranqemente of 10 "Internal Combustion Eng·ines," the invention being in substance means by which fuel is fed to an internal combustion engine not either by gravity or by pressure but by suction. The patented device, known as "the autovac," was not pat upon the market until 1915, at which date H. and A. had entered into an agreement with W. J., who was the inventor of a device which made the 15· patented device foo l-pro of, by uiliich. (inter alia) H. and A. were at liberty to 'Use the W. J. device tipon. cars manufactured in thie country and W. J. was [rec to imiport into this c01-tntry cars fitted with the patented device from ..A merica. H. and A. applied by Or'iginating Summons for an, eateneiom of the term of the Patent on. the ground of loss due to hostiiities. The Applica- 20 tion was opposed by W. on the grounds (inter alia) that the patented device was not marketable without the addition of the W. J. device/ that the Patens lacked commercial. utility,· that H. amd. A. had limited their market by perrnitting W. J. to im.port into thie count.ry,· that H. and A. had not disclosed the number of im.ported cars fitted with the patented device,' and that sales 25 lost during the War bad been balanced by accumulated deferred sales after the War. Held, that the objection on the grownd of wan,t of utility failed j that the arran.qemente made with W. J. were not a bar to the gran,t of an extension; tliat there had been a loss which had been in part, but not wholly, made good 30 by a subsequent. gain/ and that an extension of two and a half years shouid ~)e g,ranted. Letters Patent (No. 12,835* of 1911), dated the 29th of May, 1911, were granted to Joseph Higginson and Hubert Arundel in respect of an invention of "Iro" provements in the Liquid Fuel Supply Arr-angements of Internal Combustion 35 431 Vol. XLIV.] REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. [No. 13... In the Mo.tter of Higginson and Arundel's Patent. "Engines." On the 22nd of November, 1926, the Grantees applied by Originating Summons for an extension of the term of the Patent. On the 6th of January, 1927, Charles T'erres Weumann. lodged Notice of Opposition. The Pa.rticulars of Objections were as follows :-" (1) The Patentees as such :> "have not suffered any loss or damage by reason of hostilities between His " Majesty and any foreign State. (2) The Applicants took no steps prior to " the Wa,r to develop or market their invention under the said Letters Patent. "(3) The device as invented by the Applicants was not a marketable device "and it was not until the subsequent invention of Webb Jay disclosed in 10 "Letters Patent No. 11992 of 1915 came to the knowledge of the Applicants "that they were enabled to put on the market a device which was saleable. " (4) The patented articles mentioned as being sold by the Applicants in their " evidence were sold by virtue of the fact that they were made in accordance: " with the invention of Webb lay and not hy virtue of the fact that they were 15 "made in accordance with the Applicants.' sa.id Letters Patent. (5) The Applic.. " ants have not manufactured or sold any other device under their said Letters. " Patent than that covered by the said Letters Patent of W ebb Jay. (6) The " Applicants have not disclosed the number or value of vacuum fuel feed devices. " imported into and I or assembled in 'this country by their licensees or by persons 20 "having permission from them so to import or assemble, In particular the " Applicants have not disclosed the sale in and Zor importation into this country "of such apparatus by the Stewart-Warner Speedometer Corporation and Zor " Webb Ja,y and Zor their or his licensees pursuant to the arrangements made " between the Applicants and the said-Corporation and/ or the said W ebb Jay. 25 "(7) The Applieants have not disclosed the sales or manufacture of automatic " vacuum fuel feed devices covered by their said Letters Patent or equivalent "monopoly rights in other European eountries and lor the British Oolonies " Dominions and ror Dependencies and Zor in the United States of America by the' "Stewart-Warner Speedometer Corporation an d j or Webb Jay andj'or their or 30 "his licensees an d j or other licensees or assignees of the Applicants. (8) The rate " of increase of sales set out by the Applicants in thei'r evidenoe does not dis" close ,any adverse effect of the War upon the said sales. The increase shown "is normal save that in the year 1920 a number of delayed sales were made' s « due to the War or other causes thereby making the sales for 1920 much grea.ter 35 cc than they would otherwise have been. (9) The fact that Messrs. Arusidel &, " 00. became a controlled establishment in March or April, 1915, has no bearing"upon the ability of the Patentees to develop the sale and Zor manufacture "of the patented arbicle, Other sources of supply 01 the patented articles " were available to the Patentees, (10) The effect of the War was to develop' 40 "and hasten the increase in tihe use of the said patented articles in this country, "(11) The Applicants are not entitled to any extension of the term of their " said Letters Patent." An affidavit in support of the Application was made by Joseph Higginson; affidavits in support of the Opposition were made by William Henry Balian45 tyne (B.Sc., Chartered Patent Agent), Alfred Augustus Thornton (Chartered Patent Agent) and Owen William Joseph Watson (M.I.A.E., A.M.I.:M.E.); affidavits in reply were made, by J. Higginson, Viuian. A.rthur Beesley Hughes (Oonsulting Engineer and Patent Agent), William Arnold (A.M.I.A.E., Sales . Agent and Coach Body Builder), George Arthur Gastall (Director of The 50 Autovac Manufacturing Co. Ld.), George Walter McKnight (M.l.A.E., Consulbing Automobile Engineer) and William Geddes Reece (Director of Blake if; 432 No. 13.] REPORTS OF PATENT, DESIGN, AND TRADE :MARK CASES. [Vol. XLIV. In the ilfatter of Higginson and Arundel's Patent. Oo. Ld., of Liverpool, Motor Agents, Repairers and Contractors). At the hearing of the .s ummons oral evidence was given by J. Higginson, W. H. Ballantyne, A. A. Thornton and O. ·W. J. Watson. The effect of the evidence, .so far as is material to thi's report, is stated in the Judgment. J. fVhitehead (...truncated)