IN THE MATTER OF AN APPLICATION BY EDWARD HENRY ALBERT LEGGATT FOR EXTENSION OF THE TERM OF LETTERS PATENT NO. 407,336 AND IN THE MATTER OF THE OPPOSITION OF HOOD'S ORIGINAL LICENSEES

156 No.8.] REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES [Vol. LXVIII. In the Matter of an Application by Edward Henry Albert Leggatt for extension of the Term of Letters Patent No. 407,336 and in the Matter of the Opposition of Hood's Original .. Licensees' Darts Accessories Ld. thereto. Before THE PATENTS ApPEAL TRIBUNAL. 13th and 14th F'ebruary, 1951. IN THE MATTER OF AN ApPLICATION BY EDWARD HENRY ALBERT LEGGATT FOR EXTENSION OF THE TERM OF LETTERS PATENT No. 407,336 AND IN THE MATTER OF THE OPPOSITION OF HOOD'S ORIGINAL LICENSEES' DARTS ACCESSORIES LD. THERETO. 5 Application to the Comptroller-General for extension of term-Opposition-Extension of term allowed-i-Power to extend patent of which some claims invalid-Alleged false representation-Appeal to Patents Appeal Tribunal by Opponents-Appeal dismissed-Patents &c. Acts,. 1907 to 1946, Sees. 18, 32A, Patents Act, 1949, Sec. 24. In re Worrall's Patent (1918) 35 R.P.C. 226 considered and distinguished. 10 Letters Patent No. 407,336 dated 12th September, 1932, were granted to Frederick Thomas Dabbs and Edward Henry Albert Leggatt for an invention entitled " Surfaces for the reception '" of pointed articles", the invention being concerned primarily with dartboards, On 5th March, 1937, Leggatt became the sole registered proprietor of the patent, and on 11th March, 1948, he made application for extension of the term of the patent under 15 Sec. 18 (8) of the Patents &c. Acts, 1907 to 1946. On 28th June, 1948, notice of opposition to the application for extension of term was filed by Hood's Original Licensees' Darts Accessories Ld. and the matter came to a hearing before the Superintending Examiner (W. H. Langmaid) acting for the Comptroller-General ton 30th September, 1949. His decision 'was issued on 30th November, 1949, providing that 20 new Letters Patent in respect of the matters comprised in Letters Patent No. 407,336 be granted to Edward Henry Albert Leggatt for a further term of seven years from the 11th day of September, 1948. The Opponents appealed to the Patents Appeal Tribunal. At the hearing on 13th and 14th February, 1951, Guy T. Aldous appeared as Counsel for 25 the Appellants (Opponents) and G. W. Tookey, K.C., and Hon. F. L. Cawley as Counsel for the Respondents (Applicants). The relevant facts are sufficiently set forth in the judgment. Wynn-Parry, J.-This is an appeal by Hood's Original Licensees' Darts Accessories Ld. from a decision, dated 30th November, 1949, given by the Superintending Examiner, Mr. 30 Langmaid, allowing an application by the Respondents to this appeal, who were the Patentees, for an extension of the term of Letters Patent No. 407,336. The Superintending Examiner acceded to the application and decided that there should be an extension of seven years. 157 Vol. LXVIII.] REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES [No.8. In the Matter of an Application by Edward Henry Albert Leggatt for extension of the Term of Letters Patent No. 407,336 and in the Matter of the Opposition of Hood's Original Licensees' Darts Accessories Ld. thereto. The application forextension was lodged on the l lth March, 1948, and the patent in question expired on the 11th Sep~ember, 1948. At the date o[ the hearing before the Superintending Examiner there was pending an infringement action between the Respondents as Plaintiffs and the Appellants as Defendants, 5 and application was made to the Superintending Examiner to defer consideration of the application for extension until that action had been disposed of, upon the ground, inter alia, that the validity of the patent was in issue in those proceedings. The Superintending Examiner did not accede 'to that application and heard the application for extension, giving his decision on the 30th November, 1949. The infringement action carne before Lloyd-Jacob, J., in June, 1950,* and on the 12th of 10 that month his Lordship made an order, in the course of which it was declared that the patent was wholly valid. The matter was taken to the Court of Appeal in ,Nove,mb'er, 1950.tOn the 24th Novemiber, 1950, the Court of Appeal gave judgment, holding that Claim 1 of the Letters Patent in 15 suit was invalid, but that the other four claims were valid. The question was then debated as to what course should be followed, and it is quite clear from the transcript of the shorthand note of the discussion that the inclination and, indeed, the intention of the Court of Appeal was to allow such amendment of the specification as should be necessary to cure the invalidity which they found. 20 The question then arose as to the impact upon the position of th'e circumstance that the patent had expired in September, 1948. The Court of Appeal was informed that this appeal from the decision of the Superintending Examiner was pending, and in the result the Court of Appeal decided that no order should be drawn up on th~ basis of their judgment until after the hearing of this appeal before me. Mr. Aldous contends that I have no jurisdiction to grant any extension of this patent, basing himself upon the short and perfectly clear ground that, as he says, the patent has expired; there is no patent; and upon the authorities [ cannot grant any extension of an expired patent which is invalid. The first question that I havefo decide is whether for the purposes of this contention 30 there is or is not any patent. 25 The Superintending Examiner has decided and ordered that there should be an extension of the patent for seven years from the l lth September, 1948, the date iof expiry of the original patent. But for the appeal which was lodged against that decision, new Letters Patent would have been in due course sealed. [cannot see upon what show of reasoning 35 the Respondents should be placed in a worse position by reason of the lodging of this appeal than they would have been had the appeal not been lodged. After the decision of the Superintending Examiner nothing remained to be done but the purely administrative act of preparing and sealing the Letters Patent. In my view, upon a question of extension there is no magic in that administrative act. The effective act appears to me to be the decision 40 of the Superintending Examiner to grant the extension. I propose to treat the position upon that 'basis, with the result that; in my view, it is incorrect to say that there is no patent. 'I'hat would be enough to dispose of the objection to the jurisdiction, but, in view of the full and able argument by Mr. Aldous, I will advert to another aspect of his submission. 45 He contended that there was no jurisdiction in this Tribunal to grant an extension of Letters Patent which were invalid. He pointed out that the effect of the judgment of the Court of Appeal was clearly to hold that Claim 1 was invalid, and that that created ,a position different from the position which existed when the matter was before the Comptroller. * 67 R.P.C. 134. t 68 R.P.C. 3. 158 No.8.] REPORTS OF (...truncated)