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P. 32, line 6, s. 19.
P. 83, line 8, s. 58.
P. 92, line 44.
P. 92, line 7.
P. 106, line 11.
P. 127, line 17.
line 17. P. 126,
P. 242, line 6.
Singer v. Hassan, W. N. 1884, p. 83. Leave to disclaim during action given though action pending at commencement of the Act : plaintiff to pay costs of amendment in any event: defendants to have fourteen days after notice of amendment, to abandon, and in such case to have costs of action other than those of appeal from Chambers.
Grafton & Co. v. Watson & Co., L. T. March 29th, 1884, 390. Where the general effect of a design being a reproduction of another design, held "a fraudulent and obvious imitation" within s. 58 of the Act of 1883, and injunction granted on motion.
Trade Marks: Act 1875.
Leonard & Ellis v. Wells & Co., W. N. 1884, pp. 5, 60. Held that "Valvoline was a word descriptive of an article, and not entitled to be registered as a trade mark.
In re Anderson's Application, W. N. 1884, 75. Times, 19th March. Registration refused of a portrait of Baron Liebig with the words "Brand Baron Liebig," on the ground that portrait was not distinctive and that as the words "Liebig's Extract of Meat" had been held to be common to the trade, the registration would be calculated to mislead.
Hudson v. Osgerby, W. N. 1884, p. 83. That a defendant in an action to restrain infringement submits to an injunction is not a special ground to enable Court to order taxation of costs on the higher scale under R. S. C. 1883, O. LXV. r. 9.
Momson v. Boehm, W. N. 1884, 68. Mere non-user or mere nonregistration does not constitute an intention to abandon a trade mark.
In re Ralph's Trade Mark is now reported, 25 Ch. D. 194.
In re Riviere's Trade Mark, W. N. 1884, 68. Heard on the merits and held that the right to use the mark in question depended on the correspondence between the parties.
In re Keep's Trade Mark, W. N. 1884, 30. Restrictions on use of a trade mark agreed to by the party registering and a second party, ordered on an ex parte application to be entered on the register, the 32. Comptroller assenting in writing.
THIS Act cannot be regarded as a codification of the law relating to Patents, Designs, and Trade Marks. Several departments of that law are left untouched. The Act, for instance, does not prescribe what is the subject-matter of a patent, save in so far as it refers to the Statute of Monopolies; nor does it state what amounts to an act of infringement. The Merchandise Marks Act, and the various statutes relating to marks on special goods (except marks on cutlery) are left untouched. That part of the Act which treats of designs most nearly approaches a complete statement of the law.
The Act aims mainly at simplifying the methods of obtaining, amending, extending, and revoking patents. No attempt is made to alter or even state the substantive law beyond a reference to the principles relating to prolongation. Some attention has been drawn to the transitionary clauses, more especially those relating to the effect of the Act on pending applications. By sect. 45, the provisions
of the Act "relating to applications for patents and proceedings thereon," are to have effect only in respect of applications made after the commencement of the Act. Then after saying that the section relating to compulsory licenses is only to affect patents granted on applications made after the 31st Dec. 1883, it states: sub-sect. (3), "in all other respects (including the amount and time of payment of fees), this Act shall extend to all patents granted on applications then pending."
The first question that arises on this section, is, what meaning ought to be given to the words applications for patents and proceedings thereon.” No definition is given of "application." The word is even used in very different senses throughout the Act. In sect. 4, it is used as equivalent to the form of application with the accompanying specification, in sect. 10, it means the formal application alone, whilst in other sections it refers to the fact of application. It is submitted that the words "applications and proceedings thereon," include all proceedings up to and including the grant of the patent, and the subsequent filing of the complete specification and that, therefore, all proceedings pending on the 31st Dec. last, are to be proceeded with as if no new Act had been passed, save where it is otherwise expressly provided. Such applications are not, therefore, entitled to be referred to an examiner, but once the proceedings are completed and the specification filed, then it seems the present Act governs such patents. This view is taken by the Patent Office, as in their Instructions they state that all applications under the Acts of 1852-3 must be completed in
accordance with their provisions up to the stage of filing the final specifications (Patents Instructions, 17).
The second question that arises, is the amount of Fees. fees payable in order to obtain a patent. If the words "applications for patents and proceedings thereon" are wide enough to cover fees as well as procedure, then the fees are governed by the old law: if not, then inventors under sub-sect. (3), above quoted, are entitled to the benefit of the Act. It seems more reasonable to hold that the fees and procedure go together. In order to obtain a patent, the applicant under the Act of 1852, is required to make seven applications, and four payments: under the present Act, he has only to apply twice, and make two payments. Had it been the intention of the legislature to give the benefit of the new rules as to fees to applications pending, special provision would have been made in view of the changes in procedure. This leads to a consideration of the Fees after third question, viz., what fees are payable on such grant. patents (i.e., patents granted on applications pending on 31st Dec. 1883), after grant.
On the principles above laid down, the answer is: that once a patent be granted, whether on an application made before or after the commencement of the Act, then all the provisions of the Act apply, and that, therefore, the fees may be paid by instal
The Patent Office takes a different view. In their Instructions, they say :
17. "The fees to be paid upon applications made prior to the 1st of January 1884, are:-
(a.) The seventh year's payment, which under the
conditions of Letters Patent is payable before the end of the seventh year, must be paid as heretofore in one sum of £100.
(b.) The payments, which under the condition of the Letters Patent are payable before the end of the third year (1884), are, by the Act of 1883, made payable before the end of the fourth year (1885); the fee may be paid either in one sum or by annual payments (see Schedule of Fees)."
They permit the fee of £50 to be paid by instalments but require the fee of £100 to be paid in one sum. It is not quite clear whether the £50 if paid by instalments is required to be paid before the end of the 4th year. The Schedule of Fees only speaks of the 1st instalment being so paid. The reason assigned for this view of the Act seems to be that the letters patent must be in the form prescribed by the Act of 1852, and one of the conditions of the grant is the payment of the fees before the end of the 4th and 7th years respectively. But the Patent Office admits that the Act controls the letters patent, in so far as the first payment may be made before the end of the 4th year, instead of the 3rd year, as required by the grant, and there seems to be no reason why the same principle should not apply to annual payments. It is submitted that once the patent be granted, and the