Stroud v. Humber Ld.

engaging with the teeth of two out of the three push rods. Its U or crank shape leaves a gap in which the operating arm can fulfil its functions. It vibrates through an arc with the vibrating motion of the lever, but any rotating motion which might otherwise be communicated to it by the rotating motion of the lever or axle is checked and prevented. Substitute the sliding motion for the 5 vibration through an arc; arm the locking plate at either end with teeth instead of tooth holes or notches, and substitute tooth holes or notches for the teeth on the several push rods, and we have, in substance, the Plaintiff's locking device, used as the Plaintiff intends it to be used and in the same type of car, except, only, that the change gear lever is situate immediately above, and, in 10 fact, forms one piece with the operating arm, which can only be the case if the lever is in the centre of the car, instead of on its off-side. From this point of view, therefore, the Plaintiff's invention is an adaptation of Greig's locking device to cars where the operating arm was not in the same vertical plane, but at different ends of the axle, as is the case in most cars which contain the 15 "Mercédès" type of change gear mechanism. I do not, however, think that the Plaintiff's Claim is limited to cars where the "Mercédès" type of change gear mechanism is operated by a lever and operating arm not situate vertically one above the other.

I find, therefore, that each of the four characteristics of the Plaintiff's locking 20 device is to be found in one or other of the locking devices described in the Specifications of the prior Patents to which I have referred, and, making allowance for mechanical equivalents, all are found combined in Greig's locking device.

It was suggested that in Greig the U-shaped locking plate does not perform 25 the same functions as the Plaintiff's locking plate, inasmuch as it does not serve to carry motion imparted to it on one side of the operating arm to a point on the locking plate on the other side of the operating arm. If, however, the Plaintiff's Claim extends, as I think it does, to cars in which the change gear lever is vertically above the operating arm, so that Greig's device would be an 30 infringement of the Plaintiff's invention, there cannot, I think, be much point in this suggestion, for, applied to such cases, the Plaintiff's locking plate would fulfil precisely the same functions as Greig's.

Having come to the conclusion that the four characteristics of the Plaintiff's locking device are not new, either considered separately or in combination, the 35 only question which remains is whether the Plaintiff has so adapted and simplified known mechanism as to produce what is substantially a new thing. After carefully considering the whole evidence, I have come to the conclusion that he has not, and that any departure made by him from what was known before, required no exercise of inventive power, and was not, therefore, subject 40 for valid Letters Patent. The action therefore fails.

5

In the Matter of Poyser's Patent.

IN THE PRIVY COUNCIL.

Present: LORD MACNAGHTEN, LORD DAVEY, SIR ANDREW SCOBLE, and SIR ARTHUR WILSON.

February 13th, 1907.

IN THE MATTER OF POYSER'S PATENT.

Patent.-Petition for prolongation.-Application for leave to present Petition notwithstanding that the prescribed advertisements had not been issued.-Leave granted.

On the 14th of August 1893 Letters Patent (No. 15,431 of 1893) were granted 10 to John Poyser for an invention of "Improvements in looms for weaving."

On the 12th of February 1907 the Patentee and the Poyser Weaving Company Ld. gave notice to the Solicitor to the Treasury of their intention to apply on the 13th of February to the Privy Council for leave to file and proceed with a Petition that the Patent might be extended notwithstanding that the intention 15 to present such Petition had not been advertised in accordance with the Orders and Rules in Council in that behalf made and provided, and that they might be at liberty to proceed with the necessary advertisements after the presentation of the said Petition.

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An affidavit in support of the application was made by the Patentee, who was 20 also secretary to the Company, who were the owners of the Patent. In this affidavit he stated:" In 1906 I communicated with my Patent Agents, Messrs. George "Redfern & Co., with reference to obtaining an extension of the said Patent, and was informed that the Petition must be presented six months before the "expiry of the Patent. I was under the impression that the Petition would "be carried through by the Patent Agents, and I wrote giving them instructions "to proceed on the 31st January, and received the reply now shown to me and "marked A on the 2nd February. From this letter I learnt for the first time "that I should need the assistance of Solicitors and Counsel, and they asked "me to call on them in London." He then referred to interviews with the 30 Patent Agents and Mr. Barrows, solicitor, and stated that he obtained, on the 8th of February, the instructions of the directors to employ Mr. Barrows in the matter, and on the same day gave him instructions to act, and that subsequently he attended an appointment with Counsel on the 11th of February, and that at such appointment he was for the first time informed that under the Rules 35 the Petition could not be presented without prior advertisements.

M

In the Matter of Poyser's Patent.

On the application coming on for hearing, Bousfield K.C. (instructed by Dalston, Son & Elliman, agents for Turner, Barrows, and Moss, Nottingham) appeared for the Applicants.

Bousfield K.C.-I have in this case to ask your Lordships' indulgence owing to a misunderstanding on the part of the Patentee. He was under the impres- 5 sion that this was a matter which would be carried through by a Patent Agent. [Lord MACNAGHTEN.-He gives no reason or excuse whatever. He only says that he was unaware of the necessity for advertisements.] I have gone into the matter very fully with the Patentee, and I submit it is a case that deserves consideration. [The facts were stated.] The Patentee knew there was a 10 period of six months. He did not know anything about advertisements. [Lord MACNAGHTEN.-Why did not he? What is the good of making Rules?] Your Lordships have had a somewhat similar case before. The case I refer to is Lindon's Patent (14 R.P.C. 644), in which their Lordships granted this indulgence in a similar case. [Lord MACNAGHTEN.-That was in the interval between 15 the old Rules and the new.] I do not think that there was any difference in the Rules in this respect. [Lord DAVEY.-When did the Patent expire in that case?] The application was made on the 20th of July 1897. The Patent expired on the 24th of January 1898. There have been other applications to your Lordships of a much more serious character than this, and your 20 Lordships have said on these occasions that you cannot dispense with the Act of Parliament but you can dispense with your own Rules. The only thing that blocks us here is the Rule that on filing a Petition you must make an affidavit that you have put in these advertisements. [Lord MACNAGHTEN.-Have you given notice to the Attorney-General of this application ?] We have given 25 notice to the Treasury, who are here, although not by Counsel, and raise no objection. [Lord MACNAGHTEN.-It must not be a precedent.] That I understand. Of course there ought to be a stringent inquiry as to whether there is really any justification. [Lord DAVEY.-In the case you have cited there was a sort of excuse for it, but here the Patentee appears to have no 30 excuse whatever.] I can only repeat what he says. [Lord MACNAGHTEN.— That does not account for it.] He tells your Lordships the truth. Your Lordships I gather are inclined on this occasion to give the indulgence that is asked for, and perhaps your Lordships would say that the advertisements should be inserted within a fortnight, and a proper affidavit of course to be 35 filed.

Society of Accountants and Auditors v. Goodway.

IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION.

Before MR. JUSTICE WARRINGTON.

January 28th, 29th, 30th, and 31st, 1907.

SOCIETY OF ACCOUNTANTS AND AUDITORS v. GOODWAY.

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5 Trade name. Members of Plaintiff Society known as "Incorporated "Accountants."-Use of that designation by individual Defendant and holding out by the Defendant Society of its members as entitled to use that designation.—Injunction granted.

The Society of Accountants and Auditors was incorporated in the year 1885 10 to provide a central organisation for accountants and auditors, to elevate the status of the profession, to provide for its better definition and protection by a system of examinations and certificates, and to encourage a greater degree of efficiency in book-keeping. There were district Societies connected with the Society. The Society published the "Incorporated Accountants' Year Book" 15 containing a list of its members, and the " Incorporated Accountants' Journal.' It claimed that the title of "Incorporated Accountant" had become identified with its members. In 1905 a Company (limited by guarantee) called the London Association of Accountants Ld. was incorporated with objects of a similar nature. This Company claimed the right for its members to use the term 20" Incorporated Accountant," alleging that it was a statutory term which had not the meaning claimed for it by the Society and the use of which was open to. the members of the Company. The Society brought an action against the Company and also against one of its members, who had used and claimed the right to use the designation "Incorporated Accountant London Associa25 "tion," for an injunction to restrain the use of the designation "Incorporated "Accountant" by the Company and its members.

Society of Accountants and Auditors v. Goodway.

Held, that the expression "Incorporated Accountant" was not a descriptive term, but meant a member of the Plaintiff Society; that what the Defendant member was doing was calculated to lead people to the belief that he was a member of the Plaintiff Society; that the unauthorised use of the expression inflicted a legal injury on the Plaintiff Society, because it was a matter of 5 pecuniary value to the Plaintiff Society that it should have as many members as possible; and that the Plaintiff Society was entitled to injunctions against both the Defendant member and the Defendant Company, which was holding out to accountants that if they became members of the Company they would become entitled to the use of the words "Incorporated Accountants." The 10 injunctions were, however, suspended on terms in the event of an appeal. The Defendants were ordered to pay the costs of the action, except so far as such costs had been increased by an allegation of fraud against the Defendant Company.

On the 18th of February 1906 the Society of Accountants and Auditors commenced an action against George Albert Goodway (carrying on business as 15 Goodway and Fawcett) and the London Association of Accountants Ld. claiming an injunction to restrain the Defendant G. A. Goodway from using in connection with his business of accountant and debt collector, or either of such businesses, the title or designation "Incorporated Accountant," and from using in letters, accounts, or notices, or any circulars or other advertisements, the 20 designation of "Incorporated Accountant," or any designation only colourably differing therefrom in such way as to represent or lead to the belief that the Defendant was a member of the Plaintiff Society, and an injunction to restrain the Defendants, the London Association of Accountants Ld., from holding out or representing by advertisements or otherwise that its members were entitled 25 to use any such designation as aforesaid.

The Plaintiffs by their Statement of Claim alleged (inter alia) as follows:"The Plaintiff (hereinafter called 'the Society') is a body of accountants "incorporated by the registration of a memorandum and articles of association "under the Companies Acts on the 29th of December 1885. The Society was 30 registered with limited liability without the addition of the word 'Limited' "to its name under licence from the Board of Trade pursuant to Section 23 of "the Companies Act 1867. The objects of the Society are :-(a) To provide a "central organisation for accountants and auditors and to elevate the status and "advance the interests of the profession. (b) To provide for the better defini- 35 "tion and protection of the profession by a system of examinations and the "issue of certificates. (c) To promote and foster in commercial circles a higher "sense of the importance of systematic and correct accounts and to encourage a greater degree of efficiency in those engaged in book-keeping." After stating that the members consisted of fellows and associates, and numbered over 2000, 40 and after referring to the system of examinations and the disciplinary committee, the Statement of Claim continued :-" (3) Owing to the care with which "members are selected and to the supervision of the disciplinary committee, "and also having regard to the nature of the system of examinations, member"ship of the Society has long been recognised, among business men and such 45 "members of the public as have occasion for the services of or have to rely upon the reports and certificates of accountants, as evidence that the person is an experienced and competent accountant of good character and standing." [Paragraphs 4 and 5 contained statements as to district societies connected with the Society.] "(6) The official organ of the Society is the 50

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