IN THE MATTER OF ROBERTSON'S APPLICATION

215 VoL XLIVII.] REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. [No.7. In the Matter 01 the Patents of Maschinenfabrik Aug'Sburg-Nitrnberg A.G. IN THE HIGH COURT OF JUSTICE-CHANCERY DIVISION. 30 Before MR. JUSTICE LUXMOORE. October22nd and 23rd, 1929. IN THE MATTER OF ROBERTSON'S ApPLICATION. A.pplication lor thegra'fbt of a Patent-Opposition-Order for disc'overy made by theOomptroller-General-Appeal to the Court by originating summons 35 -Jurisdictjon-Procedure-Appeal disallowed-Patents and Designs Acts, 1907 and 1919, Sections 11, 77 and 92. that every possible step has been taken to launch the invention in respect of which the power of the Court is invoked to the best of his arbility. I have carefully considered what has been done by the M.A.N. in this case and when I find what transpired after the revestingof the Patents in them after 5 1920 I am unable to come to the conclusion that the M.A.N. showed such diligence as would, provided all other considerations were decided in their favour entitle them to any extension.. In the result I COIIIle to the conclusion that both Petitions must be dismissed and I must order the Petitioners to pay the costs of the Respondents. 10 Fletcher M ou,zton.-The opponents were out of time, and the question of costs wae reserved when leave to oppose was given. At the time when the statutory time for filing notice of opposition expired we were faced with a: less expensive Petition than has been the case. I cannot complain of our own increased costs, hut I submit that, in view of the fact that the Opponents 15 were warned that they might not get their costs, we should not be ordered to pay those. Sir Duncan Kerli) K.a.~Both the Petit.ion and the Opposition were out of time. If the Opposition had been frivolous, I might have been deprived of my costs, but so far from being frivolous, the Opposibion has, I submit, 20 been of assistance to the Court. In these cases ·it has always heen said that the Court desires that opponents should come dn, Luxmoore J.-I think that, having regard to the manner in which the Opposition has been presented, it is right that the Opponents should have their costs. The costs of the Opponents must be paid by the Petitioners. The costs 2:> of the Comptroller are not provided for. The Order will contain my directions with regard to costs which have been ordered to be paid by the other Petrtioners and the proviso that that was without prejudice as to how those costs were ultimately to be borne. 216 No.· 7.] REPORTS OF !PATENT, DESIGN, AND rRADE :MARK CASES. [VoL XLVII. In the,Matter oj Robertson's Application. R. applied [or the grant of Letters Patent. The Appl!icatiQn was opposed The Oomptroller made an orderfordiscovery against Against this order ~ ap~ealed to the .Court by Originating Su"!,~n~".A preli1nina~y point was raieed on behalf orJr'that the C01J/rt had no [uriedietion. to entertain. the appeal. 1f,. QY T. f John H ogg Robertson made three Applications, each dated the 10th of Apr il, T·he 15 Applications 'were opposed byRerne Tondeur on the ground that the inventions had been obtained' from him, and, in the case of the third Application, also on the ground of prior publication. On the 14th of August, 1929, ,the Assistant Comptroller vi Patente, acting for the Oomptroiler-Generai, made an' Order under Section 77 (2) that the 20 Applicant should produce certain drawings and that the Opponent, his solicitor and patent agent, should be at liberty to inspect and peruse the same, 'to make notes of their contents, and to be entitled to be supplied with copies thereof on payment therefor. On the 20th of August, 1929'1 the Applicant appealed from the Comptroller's 25 decision by way of an Originating Summons addressed to the Opponent. The Summons was adjourned into Oourt and Game on for hearing on the 22nd of October, 1929. 1921, for Letters Patent, viz. :-No. 306751, No. 306752 and No. 3~753. Trevor Watson and G. W. Tookey (instructed by Forde, Lloyd, Bartlett and Michelmore) appeared for the Appellant; The Hon. H. Fletcher Moulton :30 (instructed by Kenneth. E. Bartlett & 00.) appeared for the Respondent : C. Stafford Crossman (instructed by the Solicitor to the Board of' Trade) appeared for the Comptroller-General. Watson, for the Appellant.-If the Comptroller is "in all respects" in the same position as an Official Referee, his position with respect to an appeal 35 from his decision must be the same as that of an Official Referee, except in cases in which another appeal is provided by. Statute. The Oourt to which the appeal lies is provided for by, R. S~O. OrderLIX A, Rules 1 and 4. Section 77 must be followed, and therefore a procedure must be invented; and consequently the appeal has been 'brought by way of Originating Summons. \ICros,sm.an~-I.submit that the words in ,the rule ".0 the -IudgeIn chambers" means the judge to whom the action has been assigned.] Section 92 ,(2) gives th~ Oourt jurisdiction in this matter. The, words "ih . the same position 'as " .rnean that the powers given-to the Comptroller by theSection must he exercised subject to certain conditions and restrictions, ,.and these conditions -and 4:> '0 Held, that the prouisioti of an a-ppeal. from the Oomptroller to the Law Officer contained tin Section 11 included and covered, not only the final decision, but also amy interlocutory order which might lead u,p to the final decision, and that therefore the Court had no jurisdiction to entertain the appeal. 10 was ordered to pay..,:!s costs. '~mt>le, that, had there been jurisdiction the procedure by' orig'inating summone, though not specifical.ly provided for, uiould have been appropriate. 217 Vol. XLVII.] REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. [No.7. In the Mattetr of Robertson's Application. Luxmoore J .-This is an Originating Summons which has been taken out by one "'John Hogg' Robertson. It is addressed to Rene Tondeur and aaks that an ·40 order made by the Com.ptroller-Generai of Patents for discovery and production of documents and for the extension of time for the delivery ·of declarations in opposition to the grant of a Patent may be discharged. I should say that John H ogg Robertson' is the Applicant .for grant to him of Letters Patent in respect of an invention which he claims to have made, while Rene Tondeur, the 45 Respondent named in the .summons, ris a 'person who is opposing the grant of Letters Patent for such invention under the provisions of Section 11 (1) {a) of the Patents and Designs Acts, 1907~1919 on the ground that the Applicant Roberteon. in fact obtained the invention, the subject-matter of the application, from the' Respondent. In the course' of the opposition the Bespondentappbied T restrictions are those which constitute the position of an Official Referee. If that be so, the appeal must lie to the Oourt. If Parliament had intended otherwise, the words "shall have the same ·powers ·as" would have been used. _ Fletch (...truncated)