The Queen v. The Comptroller-General of Patents. Ex parte Tomlinson. 1852 speaks of persons "interested in opposing the grant," not "interested "under a prior Patent." The Act of 1883 does not leave the Law Officer without guidance in the matter. Any person may give a notice to oppose, and that sets the Comptroller in motion, and he must give notice of the opposition to the Applicant and decide on the case subject to an appeal. The form of the 5 notice of opposition is prescribed by the Rules (see Patent Rules, 1890, r. 36). It would be very clumsy to control the words of subsection (1) of section 11 by the words of subsection (3), which relates to appeals. It is not a necessary or likely result of my contention that different persons would be heard before the Comptroller and the Law Officer. I submit that the Law Officers have wrongly 10 construed the Act. In Heath and Frost's Patent Sir Edward Clarke, S.-G., evidently thought that any person had a right to appear before the Comptroller ; he heard the appeal. Section 95 is merely a piece of machinery in the administration of the Act; if a direction is given it is a private matter and is not argued, and cannot affect the power of the Court to construe the Act. As to the proper 15 construction of the Act, the decisions of the Law Officers are not binding. SMITH, L.J.-This is an appeal from the Queen's Bench Division consisting of my brothers GRANTHAM and KENNEDY, and they discharged a rule nisi which had been obtained by a Mr. Tomlinson to compel the Comptroller of Patents, Designs and Trade Marks to hear the opposition which Tomlinson 20 had made to a Patent which had been applied for by a Mr. Meyer for improvements in power looms. There are two facts in this case which are not disputed, and upon which this case must be determined. One is that Tomlinson had no interest in the subject-matter of the Patent with regard to which he sought to make an 25 application to the Comptroller. He was nothing more nor less than, as has been designated in this Court, one of the public-a man in the street. He had nothing whatever to do with the Patent, nor was he interested therein. The next fact which is undisputed in this case is that the Comptroller was in doubt as to whether or not Tomlinson, as one of the public, had a locus standi to come 30 in and oppose Meyers' application, he being not interested in any shape or way, as I have already said, in this Patent or in any prior Patents relating to power looms. The Comptroller in these circumstances took occasion to bring into play the provisions of section 95 of this Act, which enacts that "The Comptroller may, in any case of doubt or difficulty arising in the administration of any 35 "of the provisions of this Act, apply to either of the Law Officers for directions "in the matter." Now those are the two facts which are undisputed, and upon which alone our decision must be given. 66 I wish to say a word about the position of the Attorney-General, because in my judgment it is of importance in this case. Everybody knows that the 40 Attorney General is at the head of the Bar of England. We know that he is a very high functionary and what is more he has judicial functions to perform which from the earliest times have been left to the entire discretion of the Attorney-General of England. Let me state one or two of them to emphasize what I am saying. A man is tried for his life; he is convicted. You cannot 45 have a more serious matter than such a trial as that. He is convicted and he says that there was an error on the record. He cannot take advantage of that error on the record unless he gets the fiat of the Attorney-General. The Attorney-General is in supreme command as regards the withholding or the granting of that fiat and no Court in this kingdom has any jurisdiction 50 over the Attorney-General. Why is that? It is because the AttorneyGeneral is given high judicial functions, and it is known that a man in his position never will prostitute those functions. Therefore I take perhaps the highest case which can be stated to show the position of the Attorney-General, namely that he has to grant his fiat when a fiat is necessary in order that the 55 condemned criminal under sentence of death may bring error on the record. That is one matter. The Queen v. The Comptroller-General of Patents. Ex parte Tomlinson. Now let me take another case in which the Attorney-General is pre-eminent. Who can enter a nolle prosequi excepting the fiat of the Attorney-General is obtained? I do not mean to say that when some trivial case is before some inferior court or before a Recorder the prosecution may not ask the judge to be 5 allowed to withdraw the prosecution, and the judge when he has read the depositions may say, "I agree with you that there is no case." But apart from that who can enter a nolle prosequi? In a prosecution by one man against another for a crime the Attorney-General can, if he thinks fit, enter a nolle prosequi and nobody can say anything to him as to whether he enters a nolle 10 prosequi or not. He is supreme in that matter. I can mention many other cases. There is one in my mind now, though it has fallen into desuetude of late years, which I am very sorry for, and that is in regard to criminal informations. No more advantageous procedure exists in this country for curbing attacks on high officers of State in this country. The Attorney15 General could, ex officio file an information. He had to ask no leave at all, but the Attorney-General proprio motu, if he considered it was a proper case for a criminal information, could file it, and I believe-and I have no doubt I am stating what the law is-nobody could set aside that criminal information which he had moved for ex officio and obtained, but it must be fought out to the bitter 20 end. There are many other instances I could relate to be found in recent statutes and in the older statutes. There is one which I have in my mind-the Newspaper Libel Act. I believe actions cannot be brought against newspapers now without the fiat of the Attorney-General being obtained. I am not certain about that, but that is my recollection. I only state these matters to show the 25 high judicial functions which the Attorney-General has to perform. Having said that, I now come to these two Acts:-the Patents, Designs and Trade Marks Act of 1883 and the amending Act of 1888. What do we find? Throughout this Act what I will call the ultimate Court of Appeal in matters relating to Patents and to the oppositions to Patents is vested in the 30 Law Officers of the Crown. The Solicitor-General is the locum tenens of the Attorney-General if the Attorney-General is not there, or for what I know he has co-ordinate jurisdiction with the Attorney-General. I approach the consideration of this case with these remarks, that the last court of resort, if I may so call it in these cases, is the Attorney-General as the Law Officer of the 35 Crown. Now we are asked to grant in our discretion a writ, in reality overruling what the Attorney-General has done in the present case. Before I come to the facts of this case I will refer to Van Gelder's case, in which it will be found in the judgment of the Court of Appeal, and also in the judgment of Mr. Justice Field and Mr. Justice Wills in the Court below, 40 what is the position of the Attorney-General in these matters which are delegated to him by the different statutes and I believe in some cases by the common law of the realm. I see there is one line in Lord Justice Bowen's judgment which I ought to read, "At Common Law, the Attorney-General is, "when he is exercising his functions as an officer of the Crown, in no case that 45" I know of a Court in the ordinary sense." Of course he is not, and he is not overhaulable by the old Court of Queen's Bench or by the Queen's Bench Division now, or by an appeal to this Court. Now, in limine, what is the first matter which arises in this case? Tomlinson goes to the Comptroller and he says: "I am one of the public, I have no 50interest in the matter, but I wish to oppose Meyer's Patent." "Then," says 66 the Comptroller, "I do not think you come within the statute at all." Is there any provision in this Act when the Comptroller is in that position with regard to whom he can go to ascertain what is to be done in the matter? It seems to me section 95 was inserted for that very purpose because section 95 enacts that 55 "The Comptroller may apply in any case of doubt or difficulty arising "in the administration of any of the provisions of this Act." Why is not the hearing or the non-hearing of Mr. Tomlinson a proceeding "arising in the 66 The Queen v. The Comptroller-General of Patents. Ex parte Tomlinson. "administration of the provisions of this Act?" The Comptroller is to hear opponents to Patents -opponents to the person who is applying for a Patent. He is administering the Act, and here comes a gentleman, whom I will call, without any disrespect, a man in the street, who says, "I wish to oppose Meyer's "Patent." What does the Comptroller do? He at once brings in aid that 5 section 95, which undoubtedly was inserted to enable the Comptroller to do what he has done. He goes to the Attorney-General, and he says to the Attorney-General, "Here is Tomlinson, a man in the street, who is applying to oppose Meyer's Patent; has he a locus standi; what ought I to do in the "matter?" The Attorney-General hears what Mr. Tomlinson says in the 10 matter, and says, "If he is a man in the street, if he has no interest in Meyer's "Patent, or in any matter relating to what Meyer's patent refers to, in my "opinion you ought not to hear him." And yet the prerogative writ of the old Court of Queen's Bench is now asked for, to compel the Comptroller to do that which the Attorney-General says he ought not to do. You have only in 15 order to clinch the case on that point to ask yourself, is that a case in which the discretion of this Court-because mandamus is undoubtedly a discretionary writ and not a right-ought to be exercised in circumstances of this sort by saying "We will order you, the Comptroller, to do that which the ultimate "tribunal, if I may so call it, namely the Attorney-General, says you are not to do." 20 It seems to me that is quite a sufficient ground upon which to discharge this rule. But there is another ground upon which, in my judgment, this rule ought to be discharged. The question has been much debated as to what is the meaning of section 11 and section 18. I will take those together because the same considerations I believe substantially apply, but I will take section 11 first to 25 emphasize what I mean. I am not going to say that there are not two possible constructions which may be placed upon section 11, because I think there are, but I have to say what in my judgment is the true construction of section 11, and I say first of all that without any of the decisions of the law officers such as that of Sir Farrer Herschell, in the year 1884, which he gave one year after 30 this Act was passed, when he was Solicitor-General of England-I say that apart from that, my opinion is that the true construction is that one of the public having no interest whatever in the subject-matter of the Patent is not entitled as of right to be heard before the Comptroller of Patents, and I will give my reasons why. It is quite true that section 11 commences with the 35 words "any person"; and if it had remained there, "any person" would have meant every person-every person whatever, whether interested or not interested; but that is by no means the whole of this section, because the section says: "Any person may at any time within two months from the date "of the advertisement of the acceptance of a complete specification give notice 40 "at the Patent Office of opposition to the grant of the patent." If it had stopped there, I think it might have been said that "any person" might do that; but now a light is thrown by the three subsections appearing in this section which I must read as a whole. He may give notice "of opposition to "the grant of the Patent on the ground of the applicant having obtained the 45 "invention from him "—that is, Meyer having obtained the invention from Tomlinson-" or from a person of whom he is the legal representative "—that is one, and that clearly points to a person having an interest in the Patent, because he says he has been defrauded of his Patent, and that the Patent had been taken from him or filched from him, and therefore, of course, he has an 50 interest in the Patent. But that will not do for Mr. Tomlinson in the present case, because if it had rested there, it is quite clear that " any person " in this section would be any person who has had his invention taken from him; that means a person who has an interest and has been defrauded-I will not say defrauded, but that has had that interest taken away from him. That therefore 55 clearly cuts down that expression "any person at the commencement of that section. That is manifest. Now, these are the words upon which Tomlinson 66 66 66 The Queen v. The Comptroller-General of Patents. Ex parte Tomlinson. 66 66 relies; or on the ground that the invention has been patented in this country "on an application of prior date." He says, therefore, although the first ground cuts down the phrase "any person " to an application by an interested person, this is all at large-that, as regards this, "any person" must be read as if 5 it was a person having any interest or not, as the case may be. I do not read it so. I will finish this before I go back to what I was saying: "or on the “ground of an examiner having reported to the Comptroller that the specifica"tion appears to him to comprise the same invention as is comprised in a specification bearing the same or a similar title and accompanying a previous 10 "application but on no other ground." The third ground throws no light on this section at all as to the words " any person," and for this reason that the third ground applies to a motion proprio motu by the Comptroller when the examiner has certified something to him. But the legislature did not stop there. The legislature in the year 1888 cut that third ground out of 15 section 11, and it substituted instead "or on the ground that the Complete Specification describes or claims an invention other than that described in the "Provisional Specification, and that such other invention forms the subject of "an application made by the opponent in the interval between the leaving of "the Provisional Specification and the leaving of the Complete Specification," 20 clearly therefore bringing in again the interest of the person who is to make the application. Therefore in these two grounds as they now stand in this Act, ground 1 and ground 3, beyond all doubt by the very phraseology of the section, the words any person " in the first line of section 11 are cut down to a person interested. It is said that because there is this second ground in 25 section 11, subsection 1, which contains the words: "or on the ground that "the invention has been patented in this country on an application of prior date," it means, or on the ground that the invention has been patented by anybody, so as to let in one of the public to take proceedings and to be heard before the Comptroller. In my judgment that is not the true meaning of this 30 ground inserted as it is between the first and third grounds; and I think the Attorney-General gives the true construction of these words when he says that it is on the ground that the invention has been patented by the opponent in this country on an application of prior date. Therefore if that stood alone, I should say that the true construction of this section 11 was not to give a right to the 35 public, or, as it is called, the man in the street, to come in and oppose any application for a Patent, but it is to be a person having an interest in the subject-matter of the Patent who brings himself within this section 11. Then section 11 goes on: "Where such notice is given, the Comptroller shall "give notice of the opposition to the Applicant, and shall, on the expiration of 40 "those two months after hearing the Applicant" (that is, the patentee) "and "the person so giving notice, if desirous of being heard, decide on the case, "but subject to appeal to the Law Officer." That does not carry the case any further as regards the words " any person." Then "the Law Officer shall, if required, hear the applicant and any person so giving notice and being, in 45 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." It seems to me that authority is given to the Law Officer as the determining authority to say whether or not the opponent is a person who ought to oppose the grant, and it would be idle to say that it is open to the Court of Queen's 50 Bench to grant a mandamus to the Comptroller to hear a person when the Attorney-General is himself of opinion that the person applying for the mandamus is not the proper person to oppose the grant. It seems to me that on this section the true construction, apart from the first point which I have taken, and which I have said is in my judgment fatal to this application, is that one of 55 the public cannot intervene under this section. 66 66 Then I come to section 18. There again in subsection 4 we have, "The Law "Officer shall, if required, hear the person making the request and the person The Queen v. The Comptroller-General of Patents. Ex parte Tomlinson. so giving notice, and being in the opinion of the Law Officer entitled to be "heard in opposition to the request, and shall determine whether and subject "to what conditions, if any, the amendment ought to be allowed." There again the Attorney-General is the ultimate tribunal to decide whether he is a person who ought to be allowed to oppose. It seems to me on these two Acts 5 read together, the Act of 1883 and the Act of 1888, that the contention of Mr. Tomlinson in this case is ill founded. But there is another fact which I must call attention to myself, because it impresses me, and I do not think I am transgressing any of the rules which relate to the interpretation of statutes. No one is more jealous than I am of 10 allowing anything that has been said in the House of Commons to be brought into a Court of Law and to have it said, somebody said this or somebody said that or something else was done, because we have to construe the Act. But in this case there is a peculiar matter relating to the case. Νο one who ever knew Lord Herschell would not know that he being Solicitor- 15 General when this Act of 1883 was passed was the man of all men in this world who knew the ins and outs of this Act, and there was never a man who worked harder and who brought more consummate knowledge to bear upon that which he had to perform. What do you find? You find in the very next year to the year in which this Act was passed Sir Farrer Herschell, the Solicitor-General 20 of England, sitting in the position of Law Officer and adjudicating on this very point. We find him as Law Officer making this statement on the very point on which we are now asked to hold contrary to what he then said, in his opinion was the meaning of this Act. Sir Farrer Herschell said, "I shall "hesitate very much before I say that any member of the public can come in 25 " and oppose a Patent and raise an enquiry and cause an appeal of this sort who "has no interest in it, and who simply says 'Do not ask me what my interest "is, because I have none, except that I am going to show you that this Patent "is the same as that.' Because that system might be used so as to cause a vast "amount of annoyance and expense of a most objectionable character to 30 patentees. I know it was intended to prevent that, and I say I should hesitate very much before I permitted it, and, therefore, I think your case to be "heard had better be rested not on that ground but on the special ground," &c. I have given my own construction of this section independently of that case, but if I wanted fortification, that which fell from Sir Farrer 35 Herschell in the year 1881, to my mind, is most pertinent, and I do not think as I have already said, I am transgressing the rules as to construing statutes when I read such a statement from such a man sitting judicially as he was, in the very year after this Act of 1883 was passed, as Solicitor-General. There are also other opinions of the Law Officers. There 40 is one I will refer to of the present Law Officer-I am talking of Sir Richard Webster, in a case which is reported in the Patent Office Reports, in which the Attorney-General undoubtedly took great pains and care to go into this question, and, as the ultimate Court, he decided this question, not deciding this merely as Attorney-General, but as the tribunal appointed by the Act as the Court to 45 ultimately decide the matter, and he came to the same conclusion as that which I have arrived at, and which has been the course of practice for some 15 or 16 years. For these reasons, I think the rule nisi for a mandamus must be discharged, and the appeal must be dismissed. 66 66 COLLINS, L.J.-I am entirely of the same opinion; but, having regard to the 50 importance of the question, I will add a few words. I think, when one comes to read the section as a whole, that some limitation must be placed on the general words "any person at the beginning of the 11th section; and when we get down to the third subsection it seems obvious that there is such a limitation, and that the only person whose opinion is final on the matter, as to 55 what it is, is the Law Officer. "The Law Officer shall, if required, "hear the Applicant and any person so giving notice and being, in the |