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(6.) Particulars delivered may be from time to Sect. 26. time amended by leave of the Court or a judge.
(7.) The defendant shall be entitled to begin, and give evidence in support of the patent, and if the plaintiff gives evidence impeaching the validity of the patent the defendant shall be entitled to reply.
(8.) Where a patent has been revoked on the ground of fraud, the comptroller may, on the application of the true inventor made in accordance with the provisions of this Act, grant to him a patent in lieu of and bearing the same date as the date of revocation of the patent so revoked, but the patent so granted shall cease on the expiration of the term for which the revoked patent was granted.
The proceedings by scire facias to repeal a patent were Scire proceedings taken in the common law side of the Court facias. of Chancery, and commenced by a writ of scire facias (see Hindmarch on Patents, p. 376).
The revocation of a patent is now to be obtained by a petition to the Court, i.e., the High Court of Justice (sect. 117).
All letters patent contain a proviso giving power to the Queen or any six of the Privy Council to revoke the patent for certain causes therein specified.
Any objection that might be taken to a patent in an Grounds of action for infringement, is also a ground for revocation revocation. (see note, sect. 29, and Form of Particulars of Objections, App. A.).
Proceedings by scire facias to repeal a patent could be Who may taken by anyone, as an illegal patent was regarded as present prejudicial to all the public. Under this section a person petition. can of right present a petition for repeal only in the three cases mentioned in sub-sect. 4 (c.), (d.), (e.). If he does not come under one of these classes, he must obtain the authority of the Attorney-General in England or Ireland, or of the Lord Advocate in Scotland.
No rules have been issued affecting proceedings under Practice. this section.
The petition is to be addressed to the High Court of Justice, and ought to contain a concise statement of the
Sects. material facts, but not the evidence by which it is to be 26, 27. proved. It is to be divided into paragraphs.
It must be accompanied by particulars of objections, and no evidence can be admitted, except by leave, in proof of any objection of which particulars are not so delivered.
See further as to petitions, Williams on Petitions, and Seeton, I., p. 50.
27. (1.) A patent shall have to all intents the like effect as against her Majesty the Queen, her heirs and successors, as it has against a subject.
(2.) But the officers or authorities administering any department of the service of the Crown may, by themselves, their agents, contractors, or others, at any time after the application, use the invention for the services of the Crown on terms to be before or after the use thereof agreed on, with the approval of the Treasury, between those officers or authorities. and the patentee, or, in default of such agreement, on such terms as may be settled by the Treasury after hearing all parties interested.
Though letters patent have usually contained a clause stipulating that the patentee shall supply, for the service of the Crown, all such articles included in the invention as may be required, upon such reasonable terms and prices as may be settled by the officers administering the various departments of the service, otherwise the patent was to be void, yet it was decided in Feather v. The Queen, 6 B. & S. 257, and affirmed in Dixon v. The London Small Arms Company Limited, L. R. 1 App. Cas. 632, that letters patent do not bind the Crown, since the privilege granted is as against subjects only, and therefore the Crown might use the patent without any licence from or remuneration to the patentee.
This is now altered, and henceforth letters patent are to be valid against the Crown, subject to the proviso of sub-sect. (2). The terms on which the Crown are to be allowed to use the patent are to be settled by agreement and approved of by the Treasury; but in default of
agreement the Treasury itself may settle them. The Crown may call upon the patentee to supply, or cause to be supplied, the articles comprised in the invention, at prices, &c., to be settled under this section, otherwise the patent will be void (see form of patent, Form D, Sched. 1.)
It will be observed that the Crown may enforce this section as soon as an application for a patent is made.
28. (1.) In an action or proceeding for infringe- Hearing ment or revocation of a patent, the Court may, if it thinks fit, and shall, on the request of either of the parties to the proceeding, call in the aid of an assessor specially qualified, and try and hear the case wholly or partially with his assistance; the action shall be tried without a jury unless the Court shall otherwise direct.
(2.) The Court of Appeal or the Judicial Committee of the Privy Council (a) may, if they see fit, in any proceeding before them respectively, call in the aid of an assessor as aforesaid.
(3.) The remuneration, if any, to be paid to an assessor under this section shall be determined by the Court or the Court of Appeal or Judicial Committee, as the case may be, and be paid in the same manner as the other expenses of the execution of this Act.
The High Court of Justice and Court of Appeal are Assessors by sect. 56 of the Judicature Act, 1873, empowered to under "call in the aid of one or more assessors specially quali- Acts. fied" to assist in trying "any question arising in the cause or matter other than a criminal proceeding by the Crown." Order XXXVI. Rule 43, of the Rules of the Supreme Court, 1883, states that "Trials with assessors shall take place in such manner and upon such terms as the Court or judge shall direct."
This section goes beyond these provisions, as it not Right of
Sects. 28, 29.
Delivery of particulars.
merely authorises the Court to call in an assessor, but gives either of the parties to the proceedings a right to have an assessor, except in the Court of Appeal or the Judicial Committee of the Privy Council.
By Order XXXVI. Rule 6, Rules of Supreme Court, 1883, an order for a jury may be obtained on application, but the right is restricted by this section, and a jury can only be obtained in actions for infringement by order of the Court.
29. (1.) In an action for infringement of a patent the plaintiff must deliver with his statement of claim, or by order of the Court or the judge, at any subsequent time, particulars of the breaches complained of (a).
(2.) The defendant must deliver with his statement of defence, or, by order of the Court or a judge, at any subsequent time, particulars of any objections on which he relies in support thereof (a).
(3.) If the defendant disputes the validity of the patent, the particulars delivered by him must state on what grounds he disputes it, and if one of those grounds is want of novelty must state the time and place of the previous publication or user alleged by him.
(4.) At the hearing no evidence shall, except by leave of the Court or a judge, be admitted in proof of any alleged infringement or objection of which particulars are not so delivered.
(5.) Particulars delivered may be from time to time amended, by leave of the Court or a judge (8).
(6.) On taxation of costs regard shall be had to the particulars delivered by the plaintiff and by the defendant; and they respectively shall not be allowed any costs in respect of any particular delivered by them unless the same is certified by the Court or a judge to have been proven or to have been reason
(a) For Form of Pleadings, see App. A.
(B) See R. S. C. 1883, O. XIX. 7, 8.
able and proper, without regard to the general costs Sect. 29. of the case.
By the new Rules of the Supreme Court, 1883, the Pleadings forms of Statements of Claim and Defence in actions for in action infringement of patents have been greatly shortened, for insee App. A. The statement of claim now consists ment. merely of the allegation that the defendant infringed the plaintiff's patent, the number and title of the patent being given, and asks for an injunction and damages. The defence consists of a series of denials of any matter of fact affecting the validity of the patent. See Forms in App. A. The real pleadings are contained in the Particulars.
Particulars of breaches must be delivered with the Particulars statement of claim, and no evidence can be given of any of breaches. infringement of which particulars are not so delivered unless by leave of the Court or judge.
The object of particulars of breaches is to give the defendant fair and particular notice of what the complaint is against him. They are sufficient if, taken together with the pleadings, they give full notice of the plaintiff's case (Needham v. Oxley, 1 H. & M. 248).
The precise portion of the specification infringed ought to be pointed out by reference to pages and lines, except in the case of an alleged infringement of a particular article, where the thing alleged to be an infringement (e.g., cartridges) is made an exhibit (Batley v. Kynock, (No. 2), L. R. 19 Eq. 229).
The particular parts of a machine that infringe the plaintiff's patent may have to be pointed out (Jones v. Lee, 25 L. J. Exch. 241; Wren v. Weild, L. R. 4 Q. B. 213).
Where particulars alleged an infringement by sale of a machine and particularly to two persons, an admission of sale to a third person was allowed in evidence (Sykes v. Howarth, L. R. 12 Ch. D. 826).
The object of particulars of objection is to point out Particulars the defence with greater particularity than the statement of objecof defence, and so prevent the plaintiff being taken by tions. surprise at the trial. What degree of particularity is necessary depends on the circumstances of each case.
The 41st section of the Patent Law Amendment Act, 1852, required "the place or places at or in which and in what manner the invention is alleged to have been used or published prior to the date of the letters patent," to be stated in the particulars. A similar clause, though