The law officer will not allow the question of fraud to be raised for the first time upon appeal (i). Where the opponent's complete specification was filed between the dates of the filing by the applicant of his provisional and complete specifications, the opponent will not succeed in his opposition unless his complete specification was clearly foreshadowed by his provisional and the invention described thereby, identical with that described in the complete specification of the applicant (k). Under this section it will make no difference whether the patent upon which the opposition is founded has expired or not (1). A question has arisen as to whether, when a patent is antedated, pursuant to the provisions of sect. 103, and when an application is made for letters patent for the same invention by another applicant, between the date to which such patent is antedated and the actual date of application, such antedated patent should, for the purpose of opposition, be treated as of the antedated date or the actual date. Sir R. Webster, on January 17th, 1888, held in the matter of Everitt's Patent and L'Oiseau and Pierrard's opposition (m), that although the opponent's patent would override the applicant's by reason of the antedating, still that for the purpose of opposition the opponents had no locus standi. Sir R. Webster had, on December 7th, 1887, allowed L'Oiseau and Pierrard's patent to be amended by antedating it, pursuant to the 103rd section and to the Convention, notwithstanding that such antedating would have the effect of overriding Everitt's Patent (n). The third ground of opposition was introduced by sect. 4 of the Act of 1888, for the purpose of preventing an applicant from claiming in his complete specification an improvement on his invention, which was contained in the provisional of the opponent filed after the date of the applicant's provisional specification and thereby depriving the opponent of the benefit of his (i) Re Huth, Griff. P. C. 292. (k) Re Bartlett's Application, P. O. R. 511; but see also Re Green, Griff. P. C. 286. 9 (1) Per Gorst, S.-G., in Lancaster's Patent, Griff. P. C. 293. (m) Griff. L. O. C. 28. invention; but an applicant is not thereby deprived of his old right to include fair developments of his patent in his complete specification (o). The second sub-section provides :-"Where such notice is given, the comptroller shall give notice of the opposition to the applicant, and shall, on the expiration of those two months, after hearing the applicant and the person so giving notice, if desirous of being heard, decide on the case, but subject to appeal to the law officer. (3) "The law officer shall, if required, hear the applicant and any person so giving notice, and being, in the opinion of the law officer, entitled to be heard in opposition to the grant, and shall determine whether the grant ought or ought not to be made." Notice of appeal must be filed within fourteen days from the date of the decision appealed against (p), and must state the nature of such decision (g). The evidence used on appeal to the law officer shall be the same as that used at the hearing before the comptroller, save as to matters that have occurred or come to the knowledge of either party in the meanwhile, except with the leave of the law officer (r). The law officer shall, at the request of either party, order the attendance at the hearing of the appeal, for the purpose of being cross. examined, of any person who has made a declaration in the matter in question, unless, in the opinion of the law officer, there is good ground for not making such an order (s). In Heath and Frost's Patent (t), Sir E. Clarke said: "It appears to me that by sect. 11 it is quite clear that the only class of persons who are entitled to be heard in opposition before the law officer, are persons who are interested with real and legitimate interest in the prior patent upon which an application is opposed, or persons who, while they have not patented the invention, have yet been the originators of it, from whom the person seeking the patent has obtained it." In that case the opponent was an agent for the patentee, and although it had been common in opposition cases, for the sake (0) Re Edwards' Patent, 11 P. O. R. 461. (p) L. O. Rules, rr. 1 and 5. (q) L. O. Rules, rr. 2—4. (r) L. O. Rules, r. 8. (8) L. O. Rules, r. 9. (t) Griff. P. C. at p. 290. of simplicity, for patent agents acting on behalf of clients, to oppose grants of patents in their own names, the law officer decided that the opponent had not such an interest as to be entitled to be heard, and furthermore refused to grant leave to amend the notice of opposition. It is not sufficient that the opponent has manufactured under the patent which he relies upon in opposition, he must have a direct interest in that very patent (u). Where the opponent dies before the day fixed for hearing the opposition, the notice of opposition may be amended by inserting the name of another opponent (x). (4) "The law officer may, if he thinks fit, obtain the assistance of an expert, who shall be paid such remuneration as the law officer with the consent of the treasury shall appoint." Sect. 38 of the Act gives power to the law officers to examine witnesses on oath, to make rules from time to time regulating references and appeals, together with the practice and procedure before them, and in such proceedings they may make such orders as to costs as they may deem just, such orders to be enforceable as rules of Court. In the absence of opposition, or in the event of any opposition being decided in favour of the patentee, the patent will be sealed. (Sect. 12.) (u) Re Macevoy's Patent, 5 P. O. R. 286; see also Glossop's Patent, Griff. P. C. 285; Re Hookham, Griff. L. O. C. 32; Re Bairstow, 5 P. O. R. 289. CHAPTER X. THE GRANT. SECT. 12 of the principal Act provides that : "(1) If there is no opposition, or, in case of opposition, if the determination is in favour of the grant of a patent, the comptroller shall cause a patent to be sealed with the seal of the Patent Office. "(2) A patent so sealed shall have the same effect as if it were sealed with the great seal of the United Kingdom. (3) A patent shall be sealed as soon as may be, and not after the expiration of fifteen months from the date of application, except in the cases hereinafter mentioned, that is to say :— (a) Where the sealing is delayed by an appeal to the law officer, or by opposition to the grant of the patent, the patent may be sealed at such time as the law officer may direct. "(b) If the person making the application dies before the expiration of the fifteen months aforesaid, the patent may be granted to his legal representative and sealed at any time within twelve months after the death of the applicant." Sect. 13 enacts that: "Every patent shall be dated, and sealed as of the day of the application: Provided that no proceedings shall be taken in respect of an infringement committed before the publication of the complete specification: Provided also, that in case of more than one application for a patent for the same invention, the sealing of a patent on one of those applications shall not prevent the sealing of a patent on an earlier application." Prior to the Act of 1883 letters patent were issued under the great seal of England, and, consequently, by the Lord Chancellor, as keeper of the great seal. The process of sealing a patent was surrounded with all the formalities and expense which surrounds an important Act of State. Letters patent derived their authority from the fact that the great seal was attached to them, for " all the king's subjects are bound to take notice of the king's great seal" (a). Sect. 84 of the Act provides: "There shall be a seal for the Patent Office, and impressions thereof shall be judicially noticed and admitted in evidence." Form D in the first schedule to the Act gives the form in which letters patent are to be issued (b). Letters patent consist of six material parts : 1st. The address. 3rd. The grant. 5th. The conditions. 6th. The construction of the grant. THE ADDRESS. The address is a public address from the sovereign to "all to whom these presents shall come." Mr. Hindmarch gives the reason for this as being, that it contains bargains made between the public and patentee (c). THE RECITALS. The recitals are four in number. The first recites the patentee's name and address, that he has made a declaration that he is in possession of an invention and is followed by the title of the invention. That he has declared that he is the true and first inventor of the invention, and that the same is not in use by any other person to the best of his knowledge and belief. This recital contains the "suggestions" which have been made to the sovereign prior to the patent being granted and the representations upon which it has been granted. If either of these suggestions or representations be untrue the patent is void. We cannot do better to illustrate the exact meaning of a false (a) East India Co. v. Sandys, Skin. 225. (b) See Appendix, p. 394, post. |