IN THE MATTER OF DAVIDSON'S PATENTS

Supplement. ] 252 THE ILLUSTRATED OFFICIAL JOURNAL (PATENTS). [Dec. 8,1920 REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES [VoL XXXVII]. In the Matter of Davidson's Patents. Before THE COURT OF APPEAL. THE MASTER OF THE ROLLS AND LORDS JUSTICES WARRINGTON AND YOUNGER. October 25th and 26th, 1920. IN THE MATTER OF DAVIDSON'S PATENTS. 5 Patents.--Originating Summons for extension of term.-Patents having several years of their terms unexpired.-Application ordered to stand over until shortly before expiration of Patents.-Leave to Appeal.-Appeal held by Court of Appeal not to lie.-Patents and Designs Act, 1907, Sections 18 and 92 (2).-Patents and Designs Act, 1919, Section 7, sub-section (3), Section 20 and Schedule. 10 In 1920 the grantee of Patents granted in 1911 to i915 applied by an Originating Summons under the Patents and Designs Act, 1907, Section 18, as amended by the Patents and Designs Act, 1919, Section 7, sub-section (3), for extension of the terms of the Patents. The Applicant alleged that, by reason of hostilities, he had been unable to begin to work the patented inventions. The Comptroller contended that the question of extension ought not to be dealt with until shortly before the expiration of the Patents. The Applicant contended that the sole reason for requiring a petition for extension to bepresented shortly before the expiration of the patent was that the Court might be in a position to judge of the adequacy of the remuneration of the patentee, and that, in the case of applications under sub-section (6) of Section 18, inadequacy of remuneration was not material ; that, in that sub-section the word " may" ought to be read as "shall",. that it would, or might be, more easy to prove loss or damage shortly after it had occurred than at a later period ; and that it would be advantageous to patentees to know at an early stage what commercial interest thay had to dispose of to purchasers. At the hearing it was held that, except in so far as alterations were expressly introduced or necessarily involved, extensions under the procedure by originating summons were intended to be granted on the same general lines as those on which extensions had been granted on petition,. that an extension ought to be applied for shortly before the expiration of the pateni ; that in sub-section (6) the word" may" was not equivalent to "shall"; that the sub-section referred to loss or damage during the whole term of the paient ; thai it was, in general, impossible to judge in which way the Court ought to exercise its discretion until a patent had nearly expired; 15, 20 25 30 IN 8upplemem.] Dec., 8, 1920J THE ILLUSTBAT,ED ,OFF1CIAL JOURNAL ,(PATENTS). REPORTS OF PATENT, DESIGN, AND TRADE MAB.K CASES 253: [Vol. XXXVIIJ. .In the Matter of Davidson's Patents. 10 15 20 25 30 35 40 45 Letters Patent were granted to Samuel Oleland Davidson as follows :-On the 13th of November 1911 (No. 25,256 of 1911) for" Improvements in and relating "to the extraction or coagulation and other treatment of India-rubber from " the latex"; on the 14th of May '1912 (No. 11,470 of 1912) for "Improve" ments in and relating to the extraction of coagulation of India-rubber from "the latex" ; on the lOth of June 1913 (No. 13,438 of 1913) for "Improve"ments relating to the treatment of latex"; on the 6th of November 1914 (No. 22,138 of 1914) for" Improvements relating to the treatment of latex"; on the 13th of November 1914 (No. 22,489 of 1914) for "Improvements in " apparatus for coagulating rubber latex"; and (No. 22,490 of 1914 and No. 7168 of 1915) for "Improvements in or relating to rubber machinery"; and on the 20th of November ,1915 (No. 16,400 of 1915) for " Improvements in or "relating to machinery for rubber and the like." On the 15th of March 1920 the grantee of the Patents applied by Originating Summons under Section 18 of the Patents and Designs Act, 1907, as amended by Section 7 (3) of the Patents and Designs Act, 1919, claiming that, by reason of hostilities between His Majesty and certain foreign States he, as Patentee, had suffered loss or damage, and applying for an order that the respective terms of the Patents might be extended in each case for a further term of five years, or for such other term as the Court should think fit, having regard to the loss or damage suffered by the Applicant. . The Summons came on for hearing on the 7th of July 1920 before Mr. Justic~ Sargant, who held that, except in so far as alterations were expressly introduced or necessarily involved, extensions under the procedure by originating summons were intended to be granted on the same generalIines as those on which ex-, tensions had been granted on petition; that an extension ought to be applied for shortly before the expiration of the patent; that in sub-section (6) the word " may" was not equivalent to "shall"; that the sub-section referred to loss or damage during the whole term of the patent; that it was, in general, impossible to judge in which' way the Court ought to exercise its discretion until a patent had nearly expired; and that the advantages of considering the matter at once were not sufficient to outweigh the reasons for postponing the consideration. It was ordered that the Summons should stand over until a date nearer to the times of the expiration of the Patents. ,Leave to appeal was given, if it was in the power of the Court to give leave (ante, page 145). The Applicant appealed to the Court of Appeal. , The appeal came on for hearing on the 25th of October. 1920. Sir Arthur Oole/ax K.C. and L. W. Byrne (instructed by George Beloe Ellis) appeared for the Applicant; J. Austen-Cartmell and H.O.Danckwerts (instructed by the Solicitor to the Board of Trade) appeared for the Comptroller-General, and that the advantages of considering the matter at once were not sujficien,t to out, weigh the reasons for postponing the consideration. It was ordered that the Summone should stand over until a date nearer to the times of the expiration of the Patents. Leave to appeal 'was given, if it was in the power of the Court to give leave. The 5 Applicant appealed to the Court of Appeal. Held, that, upon the true construction of Section 92, sub-section (2) oj the Patents and Designs Act, 1907, as amended by Section 20 oj, and the Schedule to, the Patents and Designs Act, 1919, the Order made by the Court below was a decision within the meaning of sub-section (2), and that an appeal did not lie from that decision. 8uniIMMnt.] 254 THE" .ILLD:S.TRAJ'ED OFFlCIAL JOURNAL ·(PAT~NTS). [Dec. 8, 1.920 ~EPOB,TS, 01' PATENT, DESIGN,.AND TRADE MABX CASES [Vol. XXXVII]. .In the Matter of Daoidson'« Patents. I • . r " ., -"'Sir Arthur Oolefax K.C. for fhe Applicant.-The learned Judge in the Court below has .taken the view that the new procedure must be ,regarded as being subject to' the, same conditions as the procedure by petition. [Danckwerts.The decision of the learned Judge is fin (...truncated)