IN THE MATTER OF LETTERS PATENT NO. 103,188 AND 107,007 OF WESTERN ELECTRIC COMPANY LIMITED

342 NO.9.] REPORTS OF PAT'ENT, DESIGN, AND TRADE MARK CASES. [Vol. XLIX. Pittevil & 00. v. Brackelsberg Melting Processes La. in the furnace. If the Plaintiffs had to rely upon that evidence, the evidence of observation and so on, in my opinion, they would have failed entirely in their action. As it is, lin my opinion, they are entitled to succeed and .this appeal must be dismissed. IN THE HIGH COURT OF JUSTICE-CHANCERY DIVISION. 5 Before MR. JUSTICE LUX:M:OORE. March 16th and 17th 1932. IN THE MATTE'R OF LETTERS PATENT No. 103,188 AND 107,007 OF WESTERN ELECTRIC COMPANY LIMITED. Patent-Application by Originating summons for extension of the terms of lO two Patents-One Patent expired-Opposition by Government DepartmentOomptroller to represent that Department as well as the Board of Trade-Postponed demand owing to non-installation of older system-Extension of eighteen months allowed.-Patents & Designs Acts 1907 & 1919, Section 18,. sub-section (6).-R.S.0. Order LIlIA, rule 3 (t). 15 Western Electric Company Limited applied by Originating summf{ns for the extension of the term of two Patents granted in respect of " Improvements in " Oores for Pupin Loading Ooils, electromagnets, and the like". One of the Patents expired prior to the hearing of the Summons. The application was opposed by the Postmaster General, who alleged that there had been a postponed 20 demand owing to the Wa:r and arising out 0/ the non-installation of older types of apparatus. Held in the preliminary proceedings, that Government Departments were sufficiently represented by the Comptroller, and should not be otherwise repre- sented. 25 Held, at the hearing, that there had been loss of opport1:f;nity owing to the war, but that this had been counterbalanced in part by a postponed demand. 343 Vol. XLIX.] REPORTS O~ PATENT, DESIGN, AND TRADE MARK CASES. [No.9. In the matter of Letters Patent No. 103.,188 and 107,007 of Western Electric Company Limited. An extension of eighteen months was granted, the form of order with regard to the expired Patent followed that made in British Thomson Houston Co., Ld.'s Patent (1929) 46 R.P.C. 367. Be Pettit-Smith's Patent, (1850) 7 Moore P. C. 133 followed. 5 On the 29th of January, 1916, Letters Patent, No. 103,188, in respect of a communicated invention and on the 26th of February, 1916, Letters Patent No. 107,007 in respect of an assigned applicatdon (Convention) by John Caulfield Woodruff were granted to the Western Electric Co., Ld., for "Improvements in Cores for Pupin Loading Coils, electromagnets, and the like ". 10 On the 3rd of July, 1931, the Western Electric Co., Ld., applied by Originating Summons for an extension of the term of the above Patents, Notice of Opposition was given by the Postmaster General. Upon the summons coming up on January 13th, 1932, to fix a day, Mr. Justice Luxjroona directed that the separate opposition by -the Postmaster General should be withdrawn and that 15 the Comptroller-General, who sufficiently represents in these applications all Government Departments, should bring before the Court such matters as might be desirable. The principle followed was that of He Pettit-Smith's Patent, 7 Moore P. O. 133; s.ee also R.S.O. O-RDE,R L,IIIA, rule 3 (t). The grounds stated in the Particulars of Objections were inter alia that, (1) 20 had it not been for the War, certain cables would have been laid before the dat~ of the Patents, and would not have been equipped with the patented inventions, but owing to the delay they were so equipped; and (2) that the development of the repeater system (in which the inventions were used) was due to the war. The second of the above grounds was not pressed at the hearing. 25 The Summons came on for hearing before Mr. Justice Luxmoore on the 16th and 17th of March 1932 (by which date one Patent had expired). James Whitehead K.O., Jr". Trevor fVatson K.O. and J. Mould (instructed by Bristow'S, Cooke & Carpmaeiv appeared for the Applicants. C. 'Stafford' Crossman and L. F. Heald (instructed by the ·Solicitor of the Board of Trade) 30 appeared for the Comptroller General, opposing for the Postmaster General. Affidavits in support of the Application were made by Edward Stanley Byng (Managing Director), Per Engelbert Erikson, (Engineer in the Applicants' em.. ployment) and George Howard Nash. An Affidavit in support of the Opposition was made by Arthur Benjamin Hart (Assistant Engineer-in-Ohief to the General 35 Post Office). The wit.nesses (except Nash) were cross-examined, notice having been given by both sides. Whitehead K.C. for the Applicants:The inventions are used in long distance and underground cables and are 4:0 of great merit and utility. The Applicants have both home and export trade, the Post Office was the only customer for the former. Since the inventdons only formed a portion of the equipment, the actual value of the sales could not be stated; the affidavits therefore showed the consumption of raw material which was sufficient to indicate. the effect of the War. The curve of growth of 45 the telephone service showed a practical cessation for four and a half years and a resumption of the former rate thereafter. There had been no user at all for four years, as the Applicants were a controlled firm. Even had cables been 2 L No.9.J REPORTS OF. PATENT, DESIGN, AND TRADE MARK CASES. [Vol. XLIX. In the matter of Letters Patent No. 103,188 and 107,007 0/ Western Electric Cornpany Limited. installed before .the invention, commercial efficiency would have necessitated their re-equipment and replacement. The only cable so laid had in fact been replaced. There was a four years' loss both for home and export trade. Crossman for the Comptroller. There was a prima facie case for three years, but this was subject to reduction. The Post Office, if there had been no War, 5 would not have used the dnvenbion ' at once but after tests. The old type of equipment would have continued in use, though it might have had to be supplemented. Heald followed.. Exports must be taken into consideration, there was no satisfactory evidence in chief as to that. There was suspended demand, or alter- 10 natively a kind of bonus because the older system had not been installed. Trevor Watson· K.,O. in reply: -There was no user at all for four years, and, even if there had to be some subtraction on iaccount of the' so-called bonus, this did not apply to export. There was no evidence of any foreign programme for cables on the old system. 15 Luxmoore J. I am sabisfied that there has been some loss of opportunity to the Applicants in the development of these Patents owing to the existence of the War, and I am also satisfied that that loss of opportunity is to some extent offset by the fact that the work of the Post Office with regard to the laying of cables was delayed hy reason of the War, and that the Applicants had the 20 benefit of that so far as ·the particular Patent was concerned. It is always a very diffi (...truncated)