« PreviousContinue »
Many cases could be quoted to show that the Construc- specification will be construed by a court of law specifica- liberally and in favour of the inventor; but this is
not necessary, for the form of letters patent for inventions ends with these words: "And, lastly, we do by these presents, for us, our heirs, and successors, grant unto the said patentee that these our letters patent shall be construed in the most beneficial sense for the advantage of the said patentee” (i). Claims must be construed with reference to the whole context of the specification (j).
The construction of the specification, like that of all written documents, belongs to the court (k); but the jury have to decide whether the specification itself is intelligible (1) or not, and to interpret technical terms of art and phrases used in trade.
(i) The most recent of these cases are: Plimpton v. Spiller, 6 Ch. D. 412; Otto v. Linford, 46 L. T. (N. S.) 35; Dudgeon v. Thomson, L. R. 3 App. Cas. 34; The United Telephone Company v. Harrison Cox-Walker & Company, 21 Ch. D. 720; Cropper v. Smith, W. N. 1883, p. 49. As to construction of words, see Bloxam v. Elsee, 1 C. & P. 58, 568; Derosne v. Fairie, 2 C. M. & R. 476; Neilson v. Harford, 8 M. & W. 806; 1 Webs. P. R. 340, 363, 373; Beard v. Egerton, 19 L. J. C. P. 36; Elliott v. Turner, 2 C. B. 446; Hills v. Evans, 21 L. J. Ch. 457. See form of patent, first schedule to Act, form D.
(j) Clark v. Adie, L. R. 10 Ch. 667, L. R. 2 App. Cas. 315. For decisions and notes as to claims and title, see s. 5 and notes.
(k) Hinks & Son v. Safety Lighting Company, 4 Ch. D. 612; s. 5, sub. 5, p. 13.
(1) Hills v. Evans, 31 L. J. Ch. 457; 4 De G. F. & J. 288.
Drawings are subsidiary to the written part of the Drawings. specification, but all that has been said as to the verbal description applies to the drawings. It is not sufficient to rely upon the drawing alone for the description, there must be some explanatory words in the specification (m).
Under the repealed Acts relating to designs there Abolition of was a double classification into ornamental and useful tion between designs, and the designs coming under these heads and useful. were respectfully registered under separate Acts. Although the provisions of these Acts were very similar, much difficulty was frequently found in determining to which class a design belonged. This will no longer be experienced, inasmuch as by the present Act this distinction is abolished, and “any new and original design, not previously published in the United Kingdom," may be registered as a design.* Where a useful design embraces a mechanical invention it then becomes proper subject-matter for letters patent; and as the fees for a patent are reduced from £25 for three years to £4 for four years (£10 being charged for the registration of a useful design under the repealed Acts), there will not be any
(m) Neilson v. Harford, 1 Webs. P. C. 295.
This was stated in the memorandum to the Bill on which the present Act is framed.
hardship (as there certainly would have been had the scale of fees previously existing at the Patent Office been maintained) in requiring an inventor of this class to seek protection under those provisions of the Act and rules which relate to letters patent. For this class of invention four years will in most cases be found a sufficient period of protection; and no doubt it may be found practicable for the Board of Trade, in the administration of the Patent Office, to exercise the power given them under the Act, and reduce the further payments required from the holders of such patents, who desire to prolong their term of protection.
Abolition of The procedure of registration is much improved registration. by the abolition of provisional registration, a pro
of a design
tection seldom resorted to, and the simplification of the arrangements for the depositing of drawings and specimens. The term of copyright in a design under the repealed Acts varied according to the class under which it was registered, but henceforth a uniform term of five years from the date of registration has been fixed as the duration of the protection.
The present Act does not provide for the registration of works of sculpture as designs.
The original proprietor of a design differs from proprietor the original proprietor of a patent in that he need and a not be the inventor. It is sufficient if he acquires the design for a good and valuable consideration (b),
(b) S. 61.
whilst at least one of the applicants for a patent must be the true and first inventor of the subjectmatter of the application.
Unless the design be registered when it is Necessity of published the inventor has no power to prevent tion. other persons using it; for his rights are created by statute, and protection is only given him on condition that the design is registered. When this is done he acquires the copyright of his design, which confers upon him the exclusive right to apply his design to any article of manufacture, or to any substance in the class or classes in which the design has been registered (c).
When the original proprietor of the design Assignees assigns the design, the assignees or licensees be- "proprie come equally proprietors with him (d). These latter, as well as the original proprietor, in their general interest, must take care that each article is marked with the prescribed mark (e), otherwise the copyright in the design shall cease, unless all proper steps to insure the marking of the article have been taken, Marking. Whether the words in italics, which are inserted in the Act as a protection to the proprietor in case of accident, will allow more latitude with regard to the marking, remains to be seen. In the meantime,
(c) S. 60.
(d) Per Sir G. Jessel in Jewitt v. Eckhardt, 8 Ch. D. 404.
(e) S. 51, and notes.
proprietors should remember, that under the former Acts, the provisions as to marking were strictly enforced (f).
The remarks which have been made as to codifiing registra- cation of the law and the simplification of the procedure with regard to patents and designs apply equally in the case of trade marks, especially as far as the rules issued in accordance with s. 101 are concerned. The forms in the second schedule to the Trade Marks Rules will be found materially to assist an applicant in fulfilling the various requirements expected of him before his mark can be registered, as well as the proprietor of a trade mark in the event of legal proceedings or the necessity of amendment. The provisions of the repealed Acts with regard to the registration of Sheffield Marks by the Company of Cutlers in Hallamshire have been amended, and it is expected that a great improvement will result by the harmonising of the methods employed for the registration of applications at Sheffield and London. The law itself is, however, very little altered, the only important change being that the definition of the trade mark is made by the wording of the present Act more extensive by the admission of (a.) a fancy word or words not in common use; (b.) brands;
of trade mark.
(ƒ) Pierce v. Worth, 18 L. T. (N. S. 710.