« PreviousContinue »
TRADE MARKS ACT, 1883.
46 & 47 VICT. CH. 57.
An Act to amend and consolidate the Law relating A.D. 1883. to Patents for Inventions, Registration of
Designs, and of Trade Marks.
[25th August, 1883.]
BE it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. This Act may be cited as the Patents, Designs, Short title.
and Trade Marks Act, 1883.
Division of 2. This Act is divided into parts, as follows:
ment of Act.
entitled to apply for patent.
Part IV.-TRADE MARKS.
3. This Act, except where it is otherwise expressed (a), shall commence from and immediately after the thirty-first day of December one thousand eight hundred and eighty-three.
(a) See provisions respecting existing patents, s. 45.
Application for and Grant of Patent.
4. (1.) Any person (a), whether a British subject or not (b), may make an application for a patent.
(2.) Two or more (c) persons may make a joint application for a patent, and a patent may be granted to them jointly.
(a) A patent will be granted to the representatives of a deceased inventor. See s. 34.
A recent circular of the Post Office forbids its employés to take out patents without the consent of the PostmasterGeneral. A member of an official commission or committee cannot take out a patent in connection with the subjectmatter of his official investigations if the invention has already been communicated to his colleagues, for from that time the invention was public property. Patterson v. The Gas Light and Coke Co., 2 Ch. D. 812. In the House of Lords, on appeal, the view was taken that the plaintiff, being a
public servant (a gas referee), was bound to give the public the benefit of his information. L. R. 3 App. Cas. 239.
(b) Aliens, before the passing of this Act, have frequently Aliens. been the grantees of letters patent (Chappell v. Purday, 14 M. & W. 303), but it has been the usual practice for foreigners residing abroad to communicate their inventions cations. to an agent in this country, who holds the patent on trust (Beard v. Egerton, 3 C. B. Rep. 97), and subsequently assigns the invention to his principal or his nominee. Thus letters patent have been granted to an alien resident abroad for an invention communicated to him by another alien, also resident abroad. In re Wirth's patent, 12 Ch. D. 303. It was supposed by some that, after the 1st January, 1884, these communications must cease,* inasmuch as when an invention is patented as an original invention, when in reality it is only a communication from abroad, the patent is void (Milligan v. Marsh, 12 Jur. (N. S.) 1083); and by s. 5, sub. 2, every application must contain a declaration that the applicant is in possession of an invention, whereof he, or in the case of a joint application one or more of the applicants, claims or claim to be the true and first inventor or inventors; and if such declaration is made out of the United Kingdom it must be made before a British consular officer, or a public officer duly authorised on that behalf. See first schedule to Act, form A, and note. The abolition of the system of granting letters patent on communications from abroad has been advocated for the purpose of remedying an evil which has very frequently occurred-viz., the obtaining of the grant of letters patent by fraudulently acquiring a knowledge of another's invention, and transmitting the information to some person resident abroad, who in turn instructs his agent in this country to apply for letters patent on his communication from abroad. The remedy proposed, however, is open to this objection, that the specification would in most instances have to be prepared by persons having a defective knowledge of English patent law,
* See Introduction, and note to "true and first inventor," note (e), page 15.
Application and specification.
and might in consequence be invalidly drawn. There would also, in sending the papers to England to be prepared and returned for signature, as provided by first schedule, form A, be great danger of the invention becoming disclosed before the application; and the fear of this would operate as a deterrent from thus obtaining an opinion as to whether the invention is valid subject-matter for letters patent, and the specification properly drawn.
NOTE. Since writing the above the Patents Rules have been published, of which rule 27 authorises applications for patents for inventions communicated from abroad, and a form (A1) for this purpose is set out in the second schedule thereto. But as a patent so obtained is distinctly a trust, which, by s. 85 cannot be registered, or notice thereof received by the comptroller, it is necessary for the inventor to be particular in selecting the person to whom he communicates his invention. See ss. 85 & 86, and notes.
(c) S. 36 of 15 & 16 Vict. c. 83 gave power for more than twelve persons to have a legal interest in letters patent. It is not necessary that every applicant should be an inventor. See s. 5, sub. 2. When two or more persons jointly obtain letters patent, they are not partners, and any one of them may use the invention without the consent of, or being liable to account to, the others. Mathers v. Green, L. R. 1 Ch. 29; In re Russell, 2 De G. & J. 130.
After a patent has been taken out in the name of the inventor, and a partnership to work the invention has been formed, the patentee, who is also the registered owner, cannot hinder the other partners from working the invention. See Kenny's Patent Button-holing Company v. Summerville & Lutwyche, 38 L. T. Rep. (N. S.) 878.
5. (1.) An application (a) for a patent must be made in the form set forth in the first schedule to this Act, or in such other form2 as may be from time to time prescribed (b); and must be left at, or sent by post to (c), the patent office in the prescribed (b) manner.4
(2.) An application must contain a declaration (a) to the effect that the applicant is in possession of an invention, whereof he, or in the case of a joint application, one or more of the applicants (d), claims or claim to be the true and first inventor or inventors (e), and for which he or they desires or desire to obtain a patent; and must be accompanied by either a provisional or complete speci. fication.5
(3.) A provisional specification (ƒ) must describe the nature of the invention, and be accompanied by drawings (g), if required.
(4.) A complete specification (h), whether left on application or subsequently, must particularly describe and ascertain the nature of the invention, and in what manner it is to be performed, and must be accompanied by drawings (g), if required.
(5.) A specification, whether provisional or complete, must commence with the title (i), and in the case of a complete specification must end with a distinct statement of the invention claimed (j).
1 The forms A, B, and C in the first schedule to this Act have been altered or amended by the substitution therefor respectively of the forms A, A1, B, and C in the second schedule to the Patents Rules, 1883. See page 219; also rule 5.
2 An application for a patent must be made either in the form A or Al set forth in the second schedule to the rules. See page 219.
3 See rule 19. Applications sent by post shall, as far as practicable, be opened and numbered in the order in which the letters containing the same have been respectively delivered in the ordinary course of post. See rule 22.