the law officers and those whom they authorise, may present a petition for the revocation of a patent are persons who allege that they have been defrauded by the grant; or those who claim to be the true inventors of the patented invention; or those who set up anterior public user by themselves, or by persons through whom they claim. Before a petition can be presented on the ground of user by other persons it will be necessary to obtain the authority of a law officer. Along with his petition the plaintiff will have to deliver particulars of his objections to the patent, and no evidence will be admitted at the trial in proof of any objection not included in such particulars, except by leave of the Court or of a judge; but the particulars delivered may be from time to time amended by leave of the Court or of a judge. (See the section on the practice in the chapter on Infringements.) The proceedings at the trial will be similar to the proceedings in actions when the validity of a patent is in dispute. The defendant is entitled to begin and give evidence in support of the patent; and if the plaintiff gives evidence impeaching the validity of the patent, the defendant is entitled to reply. By the twenty-eighth section of the Act the Court in any proceeding for the revocation of a patent may, if it thinks fit, and shall on the request of either of the parties, call in the aid of an assessor specially qualified, and try and hear the case wholly or partially with his assistance. The case shall be tried without a jury unless the Court shall otherwise direct. Previous to the new Act, if two patents had been issued to different persons for the same invention, the first patentee could have brought an action of sci. fa. to repeal the second patent (R. v. Neilson, 1 W .P. C. 671). And where there had been a false suggestion, such as was involved in a want of novelty or utility in the invention, the patent could have been repealed by the same proceedings. Fraud, non-compliance with the conditions of the letters patent, such as filing, or insufficient specification (Rex v. Arkwright, 1 W. P. C. 66), and the fact that the invention was not a patentable one (R. v. Cutler, Macr. P. C. 124), were also grounds for the action of sci. fa. We have seen that every ground on which a patent might have been formerly repealed by sci. fa. is by the twenty-sixth section of the new Act still available as a ground of revocation. In Scotland, proceedings for the revocation of a patent are directed by the 109th section of the Act to be in the form of an action of reduction at the instance of the Lord Advocate, or at the instance of a party having interest with his concurrence, which concurrence may be given on just cause shown only. Service of all writs and summonses in that action are to be made according to the forms and practice existing at the commencement of the Act. By the nineteenth section of the new Act, the Court or a judge may, in a proceeding for the revocation of a patent, order at any time that the patentee shall, subject to such terms as to costs or otherwise as the Court or a judge may impose, be at liberty to apply at the Patent Office for leave to amend his specification by way of disclaimer, and may direct that in the meantime the trial or hearing of the action shall be postponed. Where a patent has been revoked on the ground of fraud, the Comptroller is authorised by the twenty-sixth section of the new Act, on the application of the true inventor made in accordance with the provisions of the Act, to grant him a patent in lieu of the revoked patent. The new patent is to have the same date as the date of the revocation, but is to expire at the end of the term for which the revoked patent was granted. Where the Court has made an order for the revocation of a patent, an office copy thereof must be left at the Patent Office, that an entry may be made in the register. Rule 71 of Patents Rules 1883. CHAPTER XVI. OFFENCES AND THEIR PENALTIES. THE only penalties imposed by the Act of 1883 are those prescribed for the offences set forth in the 105th and 106th sections. By the 105th section it is enacted that any person who represents that any article sold by him is a patented article when no patent has been granted for the same . . . shall be liable for every offence on summary conviction to a fine not exceeding 5l. And further, that a person shall be deemed for the purposes of the enactment to represent that an article is patented ... if he sells the article with the word 'patent,' 'patented,' or any word or words expressing or implying that a patent has been obtained for the article stamped, engraved, or impressed on or otherwise applied to the article. It may be mentioned here that, according to the case of Cheavin v. Walker (L. R. 5 Ch. D. 862), the use of the word 'Patent,' along with a representation of the royal arms as a label on an article made according to an invention for which the patent has expired, was considered to be a representation that the patent was still subsisting, and was held to disentitle the plaintiff from obtaining an injunction to restrain the wrongful use of the label. The plea of its being a trade-mark cannot be set up. It is impossible (said Sir G. Jessel, M.R.) to allow a man who has once had the protection of a patent to obtain a further protection by using the name of his patent as a trade-mark. No man can claim a trade-mark in a falsehood. It is a falsehood in representing the patent as still subsisting.' See also the Linoleum Manufacturing Company v. Nairn (L. R. 7 Ch. D. 834). By the 106th section it is enacted that any person who, without the authority of her Majesty or any of the Royal Family or of any Government Department, assumes or uses in connection with any trade, business, calling, or profession, the royal arms, or arms so nearly resembling the same as to be calculated to deceive, in such a manner as to be calculated to lead other persons to believe that he is carrying on his trade, business, calling, or profession by or under such authority as aforesaid, shall be liable on summary conviction to a fine not exceeding 201. Many persons engaged in business have been accustomed to make use of the royal arms in one way or another, and if they continue to do so they should be careful not to bring themselves within the purview of this section. In Scotland any offence under the Act declared to be punishable on summary conviction may be prosecuted in the Sheriff's Court (sect. 108). In the Isle of Man any offence under the Act which would in England be punishable on summary conviction may be prosecuted, and any fine in respect thereof recovered at the instance of the person aggrieved, in the manner in which offences punishable on summary conviction may for the time being be prosecuted (sect. 112, sub-sect. 3). The ninety-third section of the Patent Act of 1883 enacts that if any person makes or causes to be made a false entry in any register kept under this Act, or a writing falsely purporting to be a copy of an entry in any such register, or produces or tenders or causes to be produced or tendered in evidence any such writing, knowing the entry or writing to be false, he shall be guilty of a misdemeanor. |
