IN THE MATTER OF AN APPLICATION FOR A PATENT BY C.

Suppl p m . f1l . ] Nov. 3, 1920] THE ILLUSTRATED OFFICIAL JOURNAL (PATENTS). REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES 247 [Vol. XXXVII]. I n the Matter of an Application for a Patent by C, Before THE SOLICITOR-GENERAL. October 24th, 1919. IN THE MATTER OF AN ApPLICATION FOR A PATENT BY C. Patent.-Application refused by Chief Examiner and on appeal by Law Officer. 5 -A method of writing music is not a manner of manufacture.-Patents and Designs Act, 1907, Section 93. 10 15 20 25 On the 14th November 1918, an application was made for a patent in respect of an invention entitled" Method of notation in writing music for pianos, organs "and other musical instruments." Objection was raised by the Examiner that such invention does not constitute a manner of manufacture within the meaning of Section 93 of the Patents and Designs Act, 1907. The applicant's agent was heard by the Chie] Examiner (acting for the Comptroller-General), who issued a decision in the following terms :-" The invention relates to musical " notation and consists in distinguishing between the sharps, flats, and naturals "by differences in the colours, shapes or designs of the characters on the written " or printed sheet. This does not appear to be a manner of manufacture within " the meaning of Section 93 of the Patents and Designs Act, 1907, and I refuse "to allow the application to proceed." The applicant lodged an appeal, which was heard by the Solicitor-General on the 24th October 1919. Courtney Terrell appeared as Counsel for the applicant and the Chief Examiner represented the Oomptroller-General. Terrell contended that, although it is within the power of the Comptroller to refuse to grant a patent for an alleged invention which does not constitute a new manufacture, yet in cases of doubt, it should be left to the High Court to determine the question of subject-matter. He further argued that, in the present case, a manufacture wit.hin the meaning of the Statute of Monopolies is, in fact, 'disclosed, and urged that patents covering similar subject-matter had previously been allowed to issue. (The specifications of certain patents 30 that had been so granted, including No. 7184 of 1904, were referred to, but the Chief Examiner pointed out that two of them were lodged before the search for novelty, which involved closer scrutiny was instituted, and that the title of No. 7184 of 1904 is "Improvements in musical notations for use with an improved keyboard for pianofortes, organs and like instruments." Reference 35 was also made to the decisions in the cases of Cooper's and Johnson's applications-reported in Vol. 19, R.P.C., pp. 53 and 56 respectively.) The Chief Examiner was not called upon to argue in support of his decision. Sir E. M. POLLOCK, S.-G.-I have arrived at the conclusion that I must affirm the decision of the Chief Examiner in this case. Mr. Terrell's first point is that 40 it is a matter for the Court; and he is probably right in this sense, that when a patent has been granted the Court has jurisdiction to see whether or not it is valid in the sense that it ought or ought not to have been granted, but I cannot get rid of my responsibility merely by saying that in difficult cases I will grant a patent and let the matter go to the Court. Mr. Moulton, now Lord Moulton, in discuss-; 45 ing this point at a date before the Act of 1907 was passed, argued that no matter how frivolous an application was, it was not the duty of the Law Officer to refuse it, because the matter was really one which could and ought to be discussed and dealt with by the Court upon the definite issue whether or not the patent ::3'Uppternent. J 248 THE ILLUSTRATED OFFICIAL JOURNAL (PA'fENTS). REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES [Nov. 3, 1920 [Vol. XXXVII]. In the Matter of an Application for a Patent by C. was a good one. In my view I cannot properly discharge my duty by merely saying that I will allow the Patent to be sealed, and leave the Court to deal with the question of whether or not it is a valid Patent. I have to decide the matter according to the best of my judgment and skill. · Coming to the second point, Mr. Terrell argued very clearly and ably that this is a manufacture within the Statute. It is quite easy to find cases that fallon one side of the line and cases which fallon the other. It is agreed that a scale or a chart in certain circumstances may be an instrument. One n1~!~a!?f~~~ p~otographie scale that it is clear that it indicates' a diagrammatic method of obtaining certain results. It is a difficult matter in photography to decide what is the limit of exposure to be given, and the scale provided an ingenious method of ascertaining that limit. It is an instrument for the purpose of indicating the method of operating another instrument, namely, a photographic lens, and the scale itself rendered easy certain problems which had never been given a diagrammatic solution; and which, after the scale gave the facilities required, were easily solved, and solved by means of an instrument which was the subject of the Patent. To take a case which it is agreed lies on the other side of the line, a _~ystem of shorthand could not be the subject ofa patent. There has been a Patent sealed, No. 7184 of 1904, in which a method of notation is indicated in company with, and ancillary to, the particular form of piano or musical instrument to which it is attached. In my opinion, it is not possible to sever that system, if I understand the matter aright, from the musical instrument of whatever character it may be to which the system is applied. Turning to the Applicant's Specification, the invention relates to "a new "method of notation in writing music for the piano, organ, or other musical "instrument, and the object of the invention is to devise a means to simplify the reading of the most difficult composition with accuracy and rapidity." Claim 1 is: "In musical notations, indicating the sharp or flat of any note " character by making it contrasting in any colour, shape, size, shade or design " to the natural note character, with the exception of B sharp, E sharp, C flat, " and F flat, which are, indicated by natural note characters." In other words, that claim seems to me to indicate that the system is to be applicable to all musical instruments, and it is a way of writing music differing from that at present most widely adopted, and, so far as I know, almost universally adopted.....Is it then an instrument which has the character of the photographic scale, or is it a system which has the' character of a system of reading or writing shorthand 1 In my opinion it falls into the latter category, and although 1 feel the difficulty that all these cases must present, I have no doubt as to what is the right conclusion in this case. I think this falls into the category of what I call a~yst~IP:.of writing such as a system of shorthand, and it is not, therefore, proper 'subject-matter for a (...truncated)