Sects. opponent, and within fourteen days from the receipt of 11, 12. the list of affidavits, he is to leave at the Patent Office his affidavits in answer, and deliver to the opponent a list thereof. The opponent may obtain copies of such affidavits from the applicant, or the Patent Office, and within seven days he is to leave his affidavits in reply, and deliver to the applicant a list thereof. No further evidence can be left except by leave of the comptroller, (1) upon written consent of both parties; (2) specially obtained on notice to the opposite party. The comptroller may enlarge the time for lodging affidavits. Hearing. Appeal to As to affidavits taken abroad, see Patents Rules, 20. The comptroller appoints the time for hearing, giving seven days' notice. A hearing fee of 17. is payable by both parties respectively. The decision of the comptroller will be duly notified to both parties. See Patents Rules, 32-41. The practice on appeals to law officer is the same as law officer. on appeals under sect. 7. See note, "Appeals to Law Officer," under that section. Sealing of patent. 12. (1.) If there is no opposition, or, in case of opposition, if the determination is in favour of the grant of a patent, the comptroller shall cause a patent to be sealed with the seal of the patent office (a). (2.) A patent so sealed shall have the same effect as if it were sealed with the Great Seal of the United Kingdom. (3.) A patent shall be sealed as soon as may be, and not after the expiration of fifteen months from the date of application, except in the cases hereinafter mentioned, that is to say— (a.) Where the sealing is delayed by an appeal to the law officer, or by opposition to the grant of the patent, the patent may be sealed at such time as the law officer may direct. (b.) If the person making the application dies (a) S. 84. before the expiration of the fifteen months Sect. 12. The practice as regards sealing has hitherto been Sealing the this after objections were disposed of by the law patent. officer, he caused a warrant to be sealed with the seal of the Commissioners of Patents, for affixing the great seal to the grant. This section substitutes the seal of the Patent Office (sect. 84) for the great seal, and the comptroller, after objections are disposed of, may at once seal the patent. time for fifteen The time allowed for sealing is fifteen months from Limit of the date of application, except in these cases :— 1. Where the sealing is delayed by an appeal to the sealing, law officer. Four appeals to the law officer are months, mentioned in the previous sections— (a.) Against the amendment of the application 1. Where (sect. 7, sub-sect. (2)). except appeal to (b.) As to the identity of the application with a law officer. (c.) Against the refusal to accept the complete (d.) Against decision on opposition under sect. 11. The last two mentioned appeals seem to be the only ones that will entitle an applicant to further time for sealing under this section. The fact that a complete specification must be lodged within nine months and accepted within twelve months (sect. 9) from the date of application, implies that the first and second appeals must be determined within twelve months from the date of application, since no question as to the sufficiency of the complete specification can arise until the provisional specification has been duly accepted. 2. Where sealing is delayed by "opposition to the 2. Where grant of the patent." delay opposition. This refers to opposition before the comptroller under owing to sect. 11. Where there is an appeal from his decision, the previous exception will also apply. 3. Where the applicant dies before the expiration of 3. Death fifteen months. In this case the patent may be granted to his personal of applicant. Sects. representatives within twelve months after the death of 12, 13. the applicant. It is quite possible that an applicant might die within three months from the date of his application, and then the question will arise whether his personal representative has only twelve months from the day of such death allowed by this section, or the fifteen months from the date of application to which the deceased applicant would have been entitled had he lived, within which to obtain the sealing of the patent. Date of patent. Date of patent. Sealing not to affect rights of prior applicant. 13. Every patent shall be dated and sealed as of the day of the application: Provided that no proceedings shall be taken in respect of an infringement committed before the publication of the complete specification (a): Provided also, that in case of more than one application for a patent for the same invention, the sealing of a patent on one of those applications shall not prevent the sealing of a patent on an earlier application (B). This section introduces two important changes- Under the Patent Law Amendment Act, 1852, power was given to the law officer and the Lord Chancellor to direct that the patent should be sealed as of any date between the day of application and the day of sealing. 2. The sealing of a patent on a subsequent application is not to prevent the sealing of a patent for a similar invention on a prior application. Sect. 11 deprives the patentee, on a subsequent (a) See s. 10. (B) See s. 7, sub-s. (5), (6). application, of the right of objecting to a grant Provisional Protection. Sects. 13, 14. 14. Where an application for a patent in respect Provisional of an invention has been accepted (a), the invention protection. may during the period between the date of the application and the date of sealing such patent (8) be used and published without prejudice to the patent to be granted for the same; and such protection from the consequences of use and publication is in this Act referred to as provisional protection. The object of provisional protection is to enable the Effect of applicant to use or publish the invention at once. With- provisional out such statutory protection, the use or publication of protection. the invention before letters patent are actually sealed would amount to such a prior publication as would deprive the patent of novelty. It does not give the applicant any rights against the public, as no action for infringement can be maintained for any acts committed previous to the actual grant. Under the Patent Law Amendment Act, 1852, it did not give the applicant a right to have his patent sealed as against a subsequent applicant who obtained a grant before him (In re Bates and Redgate's Application, L. R. 4 Ch. 577); though this was questioned in In re Deering's Patent, 13 Ch. 393. This is now altered by sects. 7, 11, and 13, but the right of a prior applicant to object to or prevent a grant to a subsequent applicant is not in those sections called provisional protection. As to applications made on the same day, see In re Deering's Patent, L. R. 13 Ch. D. 393, and note to sect. 11. obtained. Under the Patent Law Amendment Act, 1852, proHow visional protection was obtained on the law officer certifying that the provisional specification sufficiently described the nature of the invention. Sects. 14, 15. How long it continues. Effect of of com fication. Under the present Act it is obtained on the acceptance by the comptroller of the application, i.e., of the provisional specification, or of the complete specification in case it is left in the first instance. Provisional protection will last until the day of sealing, and not merely for the six months allowed by the Patent Law Amendment Act, 1852. As to the date of sealing, see note to sect. 12. Protection by Complete Specification. 15. After the acceptance of a complete specificaacceptance tion (a) and until the date of sealing a patent in plete speci- respect thereof, or the expiration of the time for sealing, the applicant shall have the like privileges and rights as if a patent for the invention had been sealed on the date of the acceptance of the complete specification: Provided that an applicant shall not be entitled to institute any proceeding for infringement unless and until a patent for the invention has been granted to him (B). Effect of by com fication. The applicant has "the like privileges and rights" as protection if a patent had been actually sealed. See the remarks of Hatherley, L.C., in Ex parte Bates and Redgate, L. R. 4 plete speci- Ch. 577. In Ex parte Henry, 8 Ch. 167, it was held that the corresponding section of the Patent Law Amendment Act, 1852, did not give the applicant who had obtained protection by complete specification the right (which would have resulted had the patent been sealed) to object to the sealing of a patent for a similar invention to a prior applicant. Under sect. 13, even the sealing of the patent does not give such a right, so that the distinction laid down in that case no longer exists. The only disadvantage the applicant who has obtained protection under this section is under, as compared with one who has actually obtained a patent, is that contained in the proviso that he cannot maintain an action for infringement. But once the patent is granted, he can maintain an action for acts of infringement previous to the sealing, provided they were committed after the (a) See s. 10. (B) And then only for acts after publication of complete specification. S. 13. |