the infringement of a Patent, the Court, if sitting, or any judge in certain cases. 25. Whenever the plaintiff fails to sustain his action, because Court may his specification and claim embrace more than that of which he discriminate was the first inventor or discoverer, and it appears that the defendant used or infringed any part of the invention or discovery justly and truly specified and claimed as new, the Court may discriminate, and the judgment may be rendered accordingly. actions for 26. The defendant in any such action may specially plead as Defence in matter of defence any fact or default which by this Act or by law infringement. would render the Patent void; and the Court shall take congnizance of that special pleading and of the facts connected therewith, and shall decide the case accordingly. NULLITY, IMPEACHMENT AND VOIDANCE OF PATENT. cases or only 27. A Patent shall be void, if any material allegation in the Patent to be petition or declaration of the applicant be untrue, or if the speci- void in certain fication and drawings contain more or less than is necessary for valid for part. obtaining the end for which they purport to be made, such omission or addition being wilfully made for the purpose of misleading; but if it shall appear to the Court that such omission or addition is simply an involuntary error, and it is proved that the Patentee is entitled to the remainder of his Patent pro tanto, the Court shall render a judgment in accordance with the facts, and determine as to costs, and the Patent shall be held valid for such part of the invention described, and two office copies of such judgment shall be furnished to the Patent Office by the Patentee, one to be registered and to remain of record in the office, and the other to be attached to the Patent and made a part of it by a reference. manufacture thing pat years ented. 28. Every Patent granted under this Act shall be subject and Patents to be expressed to be subject to the condition that such Patent and conditioned on all the rights and privileges thereby granted shall cease and deter- in Canada of mine and the Patent shall be null and void, at the end of three from the date thereof, unless the Patentee shall, within that period, have commenced and shall, after such commencement, carry on in Canada the construction or manufacture of the invention or discovery patented, in such manner that any person desiring to use it may obtain it or cause it to be made for him at a reasonable Proceedings inent of patent. price at some manufactory or establishment for making or constructing it, in Canada, and that such patent shall be void if after the expiration of eighteen months from the granting thereof, the patentee or his assignee or assignees for the whole or a part of his interest in the Patent, imports or causes to be imported into Canada, the invention or discovery for which the Patent is granted. 29. Any person desiring to impeach any Patent issued under for impeach- this Act, may obtain a sealed and certified copy of the Patent and of the petition, declaration, drawings and specification thereunto relating, and may have the same filed in the Office of the Prothonotary or Clerk of the Superior Court for the Province of Quebec, or of the Court of Queen's Bench or Common Pleas for the Province of Ontario, or of the Supreme Court in the Province of Nova Scotia, or of the Court of Queen's Bench in the Province of New Brunswick, according to the domicile elected by the Patentee as aforesaid, which Court shall adjudicate on the matter and decide as to costs; the Patent and documents aforesaid shall then be held as of record in such Court, so that a Writ of Scire Facias under the Seal of the Court grounded upon such record may issue for the repeal of the Patent, for legal cause as aforesaid, if upon proceedings had upon the Writ in accordance with the meaning of this Act the Patent be adjudged to be void. Seire facias may issue. Certificate of judgment voiding patent to be entered in Patent Office. Judgment to be subject to appeal. Existing Pro to remain in force. 30. A certificate of the judgment voiding any Patent shall, at the request of any person or party filing it to be of record in the Patent Office, be entered on the margin of the enrolment of the Patent in the Office of the Commissioner, and the Patent shall thereupon be and be held to have been void and of no effect, unless and until the judgment be reversed on appeal as hereinafter provided. 31. The judgment declaring any Patent void shall be subject to appeal to any Court of Appeal having appellate jurisdiction in other cases over the Court by which the same was rendered. PATENTS ISSUED UNDER FORMER LAWS. 32. All patents issued under any Act of the Legislature of the vincial patents late Province of Canada, or of Nova Scotia or of New Brunswick, and all Patents issued for the Provinces of Ontario and Quebec under the Act of the late Province of Canada, to the date of the coming into operation of the present Act, shall remain in force for the same term, and for the same extent of territory, as if the Act under which they were issued had not been repealed, but subject to the provisions of this Act in so far as applicable to them: Extension to ces in certain cases. 2. And it shall be lawful for the Commissioner, upon the appliother Provin- cation of the patentee named in any such patent, being the inventor or discoverer of the subject matter of the patent and a British subject, or a resident in any Province of Canada for upwards of a year, if the subject matter of the patent has not been known or used used nor with the consent of the patentee on sale in any of the other Provinces of the Dominion, to issue on payment of the proper fees in that behalf a patent under this Act extending such Provincial patent over the whole of the Dominion, subject to the provisions of the seventeenth section; but no patent so issued shall extend beyond the remainder of the term mentioned in the Provincial Patent. patent offices 33. All the records of the Patent Offices of the late Province Recor is of of Canada, and of the Provinces of Ontario and Quebec, of Nova Provincial Scotia and New Brunswick, shall be handed over by the officers to be handed in charge of them to the Commissioner of Patents of invention or over to Comdiscovery to form part of the records of the Patent Office for the purposes of this Act. missioner. TARIFF OF FEES. 34. The following fees shall be payable to the Commissioner Tariff of fees. before an application for any of the purposes hereinafter mentioned shall be entertained, that is to say: On petition for a patent for five years........ $20 00 On petition for extension from five to ten years....... 20 00 On petition for extension from ten to fifteen years 20 00 On lodging a caveat...... 5.00 On asking to register a judgment, pro tanto............... 4.00 On asking to register an assignment.. 2.00 On asking to attach a disclaimer to a patent......................... 4.00 On asking for a copy of patent with specification... 4.00 On petition to re-issue a patent after surrender, and 4.00 0.50 For every subsequent hundred words (fractions from and under fifty being not counted, and over fifty being counted for one hundred... 0 25 35. For every copy of drawings the party applying shall pay For copies of such sum as the Commissioner considers a fair remuneration for drawings. time and labour expended thereon by any officer of the department or person employed to perform such service. Fees to be in full for all services. Fees to be paid over to Re 36. The said fee shall be in full of all services performed under this Act, in any such case by the Commissioner or any person employed in the patent office. 37. All fees received under this Act shall be paid over to the Receiver General and form part of the Consolidated Revenue ceiver General. Fund of Canada, except such sums as may be paid for copies of drawing when made by persons not receiving salaries in the patent office. Return of fees, in certain cases only. Intending ap- Commissioner may object to grant a patent in certain cases, 38. No fee shall be made the subject of exemption in favor of any person; and no fee, once paid, shall be returned to the person who paid it, except— 1. When the invention is not susceptible of being patented; 2. When the petition for a patent is withdrawn and in every such case the Commissioner may return one half of the fee paid; And in the case of withdrawal a fresh application shall be necessary to revive the claim, as if no proceeding had taken place in the matter. MISCELLANEOUS PROVISIONS. 39. An intending applicant for a Patent who has not yet perfected his invention or discovery and is in fear of being despoiled of his idea, may file in the Patent Office a description of his invention or discovery so far, with or without plans, at his own will; and the Commissioner, on reception of the fee hereinbefore prescribed, shall cause the said Document to be preserved in secrecy, with the exception of delivering copies of the same whenever required by the said party or by any judicial tribunal—the secrecy of the document to cease when he obtains a Patent for his invention or discovery; and such document shall be called a caveat; provided always that if application shall be made by any other person for a patent for any invention or discovery with which such caveat may in any respect interfere, it shall be the duty of the Commissioner forthwith to give notice by mail to the person who has filed such caveat, and such person shall within three months after the date of mailing the notice, if he would avail himself of the caveat, file his petition and take the other steps necessary on an application for patent; and if in the opinion of the Commissioner the applications are interfering, like proceedings may be had in all respects as are by this Act provided in the case of interfering applications; Provided further that unless the person filing any caveat shall within four years from the filing thereof have made application for a patent, the caveat shall be void. 40. The Commissioner may object to grant a Patent in the following cases; 1 1. When he is of opinion that the alleged invention or discovery is not patentable in law; 2. When it appears that the invention or discovery is already in the possession of the public with the consent or allowance of the inventor; 3. When it appears that the invention or discovery has been described in a book or other printed publication before the date of the application; or otherwise in the possession of the public; 4. When it appears that the invention or discovery has already been patented except, however, when the case is one within the seventh section of this Act; or one in which the Commissioner has doubts as to whether the patentee or the applicant is the first inventor or discoverer. applicant and 41. Whenever the Commissioner objects to grant a patent as Commissioner aforesaid, he shall notify the applicant to that effect and shall to notify state the ground or reason therefor with sufficient detail to enable state ground the applicant to answer, if he can, the objection of the Com- of objection. missioner. appeal to Gov 42. Every applicant who has failed to obtain a Patent by Applicant may reason of the objection of the Commissioner as aforesaid, may at ernor in Counany time within six months after notice thereof has been addressed cil. to him or his agent, appeal from the decision of the Commissioner to the Governor in Council. case of moro 43. In cases of interfering applications for any Patent, the Arbitration in same shall be submitted to the arbitration of three skilled persons, than one one of whom shall be chosen by each of the applicants, and the applicant. third person shall be chosen by the Commissioner, or by his Deputy or the person appointed to perform the duty of that Office; And the decision or award of such Arbitrators, or any two of them, delivered to the Commissioner in writing, and subscribed by them, or any two of them, shall be final as far as respects the granting of the Patent: of arbitrators. 2. If either of the applicants refuses or fails to choose an Arbi- The game; trator, when required so to do by the Commissioner, the Patent appointment shall issue to the opposite party; And when there are more than two interfering applicants, and the parties applying do not all unite in appointing three Arbitrators, the Commissioner or his Deputy, or person appointed to perform the duty of that office, may appoint the three Arbitrators for the purposes aforesaid. 44. All specifications, drawings, models, disclaimers, judgments Documents to and other papers, except caveats, shall be open to the inspection of be open to ins the public at the Patent Office, under such regulations as may be adopted in that behalf. pection. |