IN THE MATTER OF MUIR’S PATENT (NO. 2)

:3,52 No. I1.J REPORTS OF PATENT, J)ESIGN, AND TRADE MARK CASE,S. [V 01. XLIII. Lsi the Matter of Faries' Patent and In the Matter of Schnoeinert and Kraft's Patent. .manufacture ,may have exceeded four years, the period which, under the old law, afforded a ground for an application for revocation. As a matter of fact' here the period of non-manufacture has not amounted to four years, and .having regard to that fact and having regard to the fact 'that manufacture was commenced, I think it is a case where, if loss has been shown, a discretion 5 ought to be exercised in favour of the Applicants. I think there is little doubt that loss has been shown, because in 1916, within, I gather, some SIX . month'S of .the start to manufacture, the factory was taken over by the Government. The factory was not recovered until 1919,. and. although I may feel .some difficulty in arriving at a conclusion in regard to the degree, I think, upon the material 10 'before me, that the proper conclusion is that three y,ea,rs ought to be allowed in the case of each Patent. 'I'herefnust be re-grants and they must be in the .usual form, and in hoth cases the extension will be from the date of the "expiration of the first Patent. IN THE HIGH 'OOURT OF JUSTICE-OHANCERY DIVISION. 15 Before MR. JUSTICE TOMLIN. July 28th, 1926. IN THE MATTER OF MUIR'S PATENT (NO.2). Patent.-Application by Originating Suonmons for an extension of the term -of the Patent.-Term of the Patent having been extended previously on Petition. 20 --Juris'diction.-Application dismissed.-Patents and Designs Acts, 1907 & 1919, .Sectioti 18, Sub-section (6). In 1919 M. presented a petition fOT, and obtained, an extension of a Patent .granted to h.irn. in 1905. In 1926 M. applied by Originating Summons for a .further extension of the same Patent on the ground of loss due to hostiiitiee. 25 Held, that sub-section (6) of Section 18 was a mod1.>(ication of the original Section and conferred no separate or independent jurisdiction, but was an instruction as to procedure and as to how, under certain circumstances, the ·OO1.1fft might arrive at its decision, and that no jurisdiction was given by it to the Court to entertain a second application for an extension of a patent, and 30 that the application muet be dismiesed, In the Matter of Thompson's Patent ([l909J 2 Oh. 447; 26 R.P.C. 673) .followed and applied. On the 28th of April, 1905, Letters Patent (No. 8957 of 1905) were granted to John Mu,ir in respect of an invention of "Improved means for absorbing 35 353" Vol. XLIII.] REPORTS. or PATENT, 'pESIGN, AND TRADE lIARK CASES. [No. 11.. In the J.llatter of A~[uir's Paten,t(No. 2). " shock applicable for the wheels of vehicles and other mechanical appliances." On the 26th of October, 1918, the Grantee presented a Petition for an extension of the term of the Patent. The Petition was heard on the 13th of November, 1919, and an extension of seven years was granted. (See 36 R.P.O. 327.) On 5 the 27th of October, 1925, the Grantee applied by or iginati.ng summons for &; further extension of the term of the Patent. Affidavits by the Applicant were filed in support of the Application. Gavin T Simond.s K.O. and E. T. Cox-Sinclair (instructed by Ravenscroft, Woodward & Co.) appeared for the Applicant; Dighton Pollock (instructed by 10 the Solicitor to the Board of Trade) appeared for the Comptroller-General. Simonds K.O., for the Applicant.-In granting an extension of the Patent under the 1907 Act Mr. Justice J..'Jargant express-ed the hope that the Patentee' would be able to recoup his losses; in fact he has made a further loss. Thom.pson:« Patent, [1909J 2 Ch. 447* is binding on the Court in so far as the' l:l Act of 1907 is concerned. The Act of 1919 was designed to meet an unprecedented. situation. The policy of the Legislature was to allow a patentee to obtain an extension under special circumstances, i. e., where he had susta.ined loss by reason; of hosrilities. The policy of the Act is equally applicable whether there has been a grant of an extension of the Patent in question prior to the date of the Act, 20 or not. [TOMLIN J.----:-Under Bub-section (4) war losses can be, and have been; considered. J The immediate result of the termination of hostilities was that the country was flooded with motor vehicles, and as a result manufacturers could. not manufacture at a profit. That state of affairs has only recently passed. COX-Sfinclair followed. 25 Pollock, for the Gomptroller-General.-1Y h o m p s o n ' s Patent (s'upra) applies in every detail. [He referred to Do.oideon'» Patents, (1920) 37 R.P.O. 252 and" Brown's Patent; (1920) 37 R.P.C. 52.J In the case of this Patent loss due to the war has val ready been dealt with (J.lfuir's Paten.t, (1919) 36 R.P.C. 327). A patentee cannot come to the Oourt twice in respect of the same cause of loss. 30 TOMLIN J.-This is an application by originating summons under subsection (6) of Section 18 of the Patents a.nd Designs Act, 1907, as amended by the Act of 1919, for relief by way of extension of the Patent oli the ground of loss or damage suffered by reason of hostilities. This application raises a point which is unusual and which has to be. dealt35 with as a preliminary point, because, if the objection taken by the Crown to the applicabion is well founded, I have no jurisdiction to entertain it. and am therefore not ina position to consider it on its merits. The point is this: The Applicant is a, Patentee under Letters Patent gra.nted" in 1905. Those Letters Patent expired in the ordinary course in 1919, before 40 the Act of 1919 came i nto force. The subject-matter of the Letters Patent is an invention of great ingenuity, and the merits of it were recognised by Mr. Justice Sargant upon an application to which I am going to refer in a moment. In 1919, after the expiry of the. Patent but before the Act of 1919' came into force, Mr. Justice J..\)argant heard and adjudicated upon an applica45 tion by pet ition by" the present Applicant under Section 18 of the Act of 1907, asking for an extension of the Patent on the ground indicated in Sub-section (5) of that Section, namely, that he had been inadequately remunerated'. Mr. Justice Sargant dealt with the ease. He expressed his view that the' Patent was a patent of grea,t ingenuity and high utility, and that" in all the' * 26 R.P.C. 673. 254 No. 11.] REPORTS OF PATENT, pESIGN, AND TRADE MARK CASES. [Vol. XLIII. In the lJlatter of ZJluir's Patent (.LV"o. 2). -circumstances of the case, the Patentee had not been adequately remunerated; .and having regard to those circumstances he allowed an extension of seven _~ears. That is the full amount then admissible for an extension, unless in exceptional cases. The result was th.at effect was given to that judgment by a re-grant, or a grant of a further term in the form normal and proper for a case f> where the or iginal term of the patent had expired.. It was hoped, no doubt, by the Pate (...truncated)