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this realm as aforesaid, these, our letters patent, shall forthwith determine and be void to all intents and purposes, notwithstanding anything hereinbefore contained." It is therefore conceived that an attempt made to set aside the aforesaid form and the patents rule 27 as ultra vires, on the abovementioned grounds, would be unsuccessful, and that those who have secured patents by communications from abroad need be in no fear as to the validity of their letters patent.

ceedings.

In addition to the before-mentioned changes in Legal prothe legal proceedings before the law officers, some important changes are made in the trial of patents actions. The cumbrous procedure for the repeal of letters patent known as scire facias, so far as letters Scire facias. patent for inventions are concerned, is abolished, and the revocation of a patent may be obtained on petition to the court by such persons and in the mode prescribed by s. 26 (y).

(y) A reference to Hindmarch on Patent Privileges, chap. x. sec. 6, which exhaustively treats of scire facias, will show how very complicated the procedure was. The change is one of practice, and all the grounds on which a patent might have been attacked by this method are still available in an action for the revocation of a patent. The principle upon which the law is based is that the Crown, which acts in the public interest, grants protection on the ex parte statements of the inventor, and if it appear that the Crown has been deceived or its subjects prejudiced, it has a right to proceed by scire facias to cancel or revoke the letters patent. This is very clearly put by Coke in the fourth institute: "When the

с

Assessor.

Jury.

The court, in any action for infringement or revocation of a patent, or the Privy Council, on a petition for extension, may-and the former must -at the request of either party to the suit, call in the assistance of a specially qualified assessor at such remuneration as they may determine.

Patents actions have been mostly tried without the aid of a jury; but this is now made compulsory, unless the court expressly orders that it shall not be so (z).

King granteth anything that is grantable upon a false sug-
gestion, the King by his prerogative, jure regio, may have a
scire facias to repeal his own grant. When the King doth
grant anything which by law he cannot grant by jure regio,
for the advancement of justice and right, may have a scire
facias to repeal his own letters patent."

The cases on which these propositions are founded are :
The King v. Butler, 3 Lev. 220, 221.

The Magdalene College Case, 11 Coke, R. 74.

Legatt's Case, 10 Çoke, R. 113.

As to the position of the Crown when the grant is made on the passing of an Act of Parliament, see judgment of Eyre (L. C. J.) in Boulton v. Bull, 2 H. Bl. 500.

(z) See s. 28, sub. 1. The late Master of the Rolls, in the case of Downes v. Hughes & Co. (Limited), when considering the advisability of trying a complicated patent case before a jury, said that this was an action which as an ordinary rule would be tried before a judge of the Chancery Division without a jury; but the plaintiff had, notwithstanding that he had marked it for his court, chosen to give notice of trial before a jury. The defendant said this was not a proper case for a trial before a jury, and he relied on several grounds. The first was, that the question of novelty, involving as it did

The particulars in which the trial of patents actions differs from ordinary actions are dicsussed under the sections of the Act which relate to legal proceedings and especially from ss. 26-33 (a).

the consideration of various previous patents, was not a fit one for a jury. As a general rule juries were not able to understand these questions properly, and in effect there was no fact in dispute, and the whole question was one of applied mechanics. In his opinion that issue was not a proper one for a jury. The second issue was also an extremely difficult one as to the sufficiency of the specification, and it was one which he did not consider a jury would be competent to deal with. Then the other issue, as to infringement, was also most complicated and difficult, having regard to the character of the two machines. This, no doubt, was in a sense an issue of fact, but it really would almost entirely depend on expert evidence, and was not an issue which a jury could satisfactorily deal with. In his opinion the action was one that ought clearly to be dealt with by a judge of the Chancery division, and he ought not to be afraid to say so. There was, moreover, this remark to be made, as to a trial at the assizes, there might not be sufficient time to try the case, and it might be made a remnant, or the judge might not think it a case fit for a jury, and might send it for trial to an official referee. Anything more unsatisfactory than either of the last events happening he could not conceive, and in mercy to the parties he thought the present order would be the best.24 S. J. 653.

(a) In the case of Birch v. Mather, 52 L. J. Ch. 292, it was held that ordinary rules of discovery apply to patents actions. Therefore, when in an action for the infringement of a patent the defendants had delivered particulars of objections, including a statement that the inventions claimed by the plaintiffs had, prior to the date of the letters patent, been used at places named, and the plaintiff desired to obtain

During an action for infringement a patentee may obtain liberty from the court to apply at the Patent Office for leave to amend his specification, and the court may decide that in the meantime the hearing of the action shall be postponed (b). Savings for The Act contains special provisions and reserIreland, and vations as to legal proceedings in Scotland, Ireland, and the Isle of Man (c).

Scotland,

the Isle of

Man.

Property in invention.

(B)-SUBJECT-MATTER OF LETTERS PATENT.

The right of property in movable chattels has been recognised by all nations in the earliest stages of their existence; but, although ancient nations, and more especially the Egyptians, frequently rewarded inventors, yet the right to the sole use of inventions was only conceded when considerable progress had been made in arts and manufacture, and, as far as one can judge, first of Reward of all to inventors in this country. It is true that

invention.

many writers have maintained that the principles of what is termed universal equity entitle each inventor to an exclusive property in his particular invention. That the right of an inventor is not,

the names and addresses of the persons using at those places the invention, it was held that the plaintiff was not bound to apply for further particulars, but could apply for leave to administer interrogatories.

(b) See s. 19.

(c) Ss. 107-112.

ground of

however, to be supported on this ground, but on that of public expediency, will appear from the following considerations: Any invention at first exists only as an idea in the mind of the inventor; On the but in a mere idea it is clear that, apart from the public expediency. provisions of an express enactment, there can be no property, which can only arise when the idea has been converted into something tangible. When something tangible has been produced by the inventor he acquires property through the use of his invention, and he retains the exclusive power of augmenting this property, so long as no other person, by reason of independent invention or the disclosure of the secret, becomes possessed of the power of producing what is in effect identically the same property. As soon, however, as the invention is known to others the inventor loses this exclusive property in his invention, for, unless he is protected by the municipal law of the country in which he lives, nothing he has done gives him the right to hinder such persons as may please from making or using articles made according to his invention. The interest, therefore, of the inventor when not protected by the State is to keep his invention secret as long as possible. The adoption of a policy of secrecy has, however, not been found to be of much benefit to inventors, inasmuch as the precautions they are obliged to take in guarding against the disclosure of their inventions hampers their trade

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