IN THE MATTER OF PATENTS NOS. 291,473 AND 291,474 OF TOOTAL BROADHURST LEE COY. LD.

23 REPORTS OF PATENT, DESIGN", AND TRADE MARK CASES Vol. LXII.] [No.2. MAY 9TH, 1945. IN THE HIGH COURT OF JUSTICE-CHANCERY DIVISION. Before MR. JUSTICE MORTON. March 5th, 1943; July 17th, r Sth, roth, zoth. arst, 25th, 26th and 27th, 1944. IN THE MATTER OF PATENTS Nos. 291,473 AND 291,474 OF TOOTAL BROADHURST LEE COy.LD. 5 1<) Patents-c-Ap-plication by originating summons for extension on the ground of war lossApplication opposed-Opponents seeking order for further particulars from Applicants--Order refused-Patents expired before hearing-s-Neither loss owing to the war nor the, amount of such loss satisfactorily proved-If any loss proved it was not sufficien: to justify re-grants beyond the date of hearing-Appl£cation ·dis11u~ssed-Applicants to pay costs of ComptrollerGeneral and of Opponents icho toere heard} the Opponents who withdrew to pay the Applicants} costs occasioned by the opposition of such Opponents-Order for return of documents supplied by Applicants to Opponents-Patents and Designs Acts} 1907-1942, Sec. 18 (6). Application was made by originating summons for extension of the terms of Patents: Nos. 281,473, and 291,474. Both patents were dated the sst December, 1926, and were for IS inuentions for rendering fibres and fabrics crease-resisting} the claims covering both processes and products. Three conipanies originally opposed the ap-plication, British Artificial Resin Coy., Ld., however} withdrew shortly after entering notice of opposition} and Courtaulds Ld, withdrew their opposition after the evidence in reply had been filed. The remaining Opponents,. Calico Printers Association Ld., appeared at the hearing. The A.4pplicants had made greatly 20 increased profits during the war.. but they submitted that had it not been for the war their profits would have increased at a substantially greater rate. -The Opponents contended} inter alia, that the Applicants had not sustained any loss by reason of the war} or} if they had} such loss was not in respect of these patents but in respect of their improvement patents. A'n, applicat£on by the Opponents for an order that the Applicants should furnish further particulars 25 of their case beiore the Opponents delivered their particulars of objections was refused. Held: (i) That the Applicants had failed to discharge the burden upon them by Sec. 18 (6) of showing they had suffered a loss by reason of the war. (ii) That from the evidence it appeared lvkely that they would have made larger profits but for the war} but it was not satisfactorily proved hot» great such increase would have been. 30 (iii) That if a loss had been proved it w·ould not have justified re-grants for a period so long the summons. as that which had elapsed between the expiry of the patents and the hearine Az 0: No. 2.J- [Vol. LXII. REPORTS OF PATENT, DESIGN-, AND TRADE MARK CASES In the Matter of Patents Nos. 291,473 and 291,474 of Tootal Broadhurst Lee Coy. Ld. (iv) That the application should be dismissed, the Applicants paying the costs of the Comptroller-General and of the opponents Calico Printers .Association Ld, t" " ~. ~ (v) That the Opponents Co urtaulds Ld. should pay the Applicants' costs so far as they were increased by the opposition of these Opponents. British Thomson-Houston Ld.'s Patent 46 R.P.C. 367 followed. 5 Observed: Had the burden rested on the Opponents to pl'ove that the Applicants had not incurred a loss by reason of the war, the Opponents would have failed to establish that fact. Quaere Whether if a prolongation oj main patents has been obtained by patentees on the ground of war-loss during a certain period, they could subsequently apply for an extension of subsidiary patents on the ground of war-loss during the same period. 10 In the course of his judgment, Morton J. referred to the following cases: British ThomsonHouston Coy. Ld.:s Patent, 46 R.P.C. 367; Heide's Patent, 61 R.P.C. 4. On the 5th March, 1943, before Simonds J., as he then was, the Opponents, Courtaulds Ld., made an application for particulars of certain matters raised in the affidavits-filed by the Applicants, on the ground that such particulars were necessary to enable the Opponents to IS frame their 'particulars of objections; the application 'was supported by the Calico Printers Association Ld. The Hon. H. Fletcher Moulton (instructed by Bristoios iCooke & Carpmael) appeared for Courtaulds Ld.; G. S. W. M-arlow (instructed by Pritchard, Englefieid. & Co., Agents for Boote, Edgar & Co., Manchester) appeared for the Calico Printers Association Ld.; R. Burrell, K.C., and J. Mould (instructed by Fa~thfull, Owen & Fraser) appeared for 20 Tootal Broadhurst Lee Coy. Ld.; G. H. Lloyd-Jacob (instructed by the Solicitor to the Board of Trade) appeared for the Comptroller-General. Fletcher Moulton.-The Opponents cannot properly settle their particulars of objections unless the Applicants supply turther information. The information required is the approximate actual amounts of the following classes of materials which have been crease-resisted by the 25 patentees and their licensees collectively in the years from 1932 onwards: (a) cotton (b) wool (c) linen (d) spun rayon and (e) continuous filament rayon; also the approximate amounts of those materials which were treated in the said years under Letters Patent No. 291,473 and under Letters Patent No. 291,474 respectively, and how much of such material was treated under these patents without employing inventions the subject of later Letters Patent. The 30 Opponents believe that some of the expansions in business suggested by the Applicants as probable could not possibly have taken place even if there had been no war owing to lack of materials; in those circumstances it is necessary to know which materials formed the bulk of their crease-resistance trade. At present, too, the Opponents are unable to tell how much of the alleged loss is under one patent and how much under the other, or, indeed, whether these 35 patents have any commercial value at all without certain improvement patents. (Bates' Application, 45 R.ll.C. 270 at 275 was referred to.) Simonds J.-Have you ever known before petitioners, or applicants if it be by way of summons, at the instance of the opponents being ordered to give particulars or discovery? The ordinary practice is surely this, that the petitioner or applicant is bound to present his 4 0 case with the utmost good faith. If there are any matters, and particularly matters with regard to which he has been warned, either by the Comptroller or by the opponent, that further information is desired, and the Court, upon the hearing, comes to the conclusion that those are relevant particulars, then the applicant will suffer accordingly. Either the petition will be dismissed out of hand, or the matter may stand over in order that the matter may 45 be investigated. ' 25 Vol. LXII.] REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES [NO.2. In the Matter of Patents Nos. 291 (...truncated)