Two applications on the same day.

S. 35. Application in fraud of true inventor.

S. 26 (8).

patent is made after the sealing of another, and the second patent appears to comprehend something not comprehended in the patent already sealed, then for those things a new patent ought to be granted."

The following was the case :-B applied for a patent, and got provisional protection, on the 30th of March, C on the 3rd of April. B applied for the Great Seal on the 21st of May. C obtained letters patent on the 22nd of May, antedated, according to practice, to the 3rd of April. The patents were partially for the same matters. Held the letters patent for B must bear date the 21st of May, and not the 30th of March. And where two applicants have applied for a similar patent on the same day a patent for the invention has been granted to each.

In re Gething's patent, L.R. 9 Ch. 633 (1874).

Two rival applicants on the same day for similar inventions, who had agreed not to oppose each other, had their patents both sealed and dated same day. In re Dering's patent, L.R. 13 Ch.D. 393 (1879), Lord Cairns considered the principle laid down in Bates' case above. It was a case of

Two applicants on the same day for similar inventions; the second applicant got his patent sealed first, and it was held the first applicant could have his patent sealed and dated as of day of application also. And this is now so enacted by section 13 of the Patents Act. (See p. 4.)

Section 35 enacts that

"A patent granted to the true and first inventor shall not be invalidated by an application in fraud of him, or by provisional protection obtained thereon, or by any use or publication of the invention subsequent to that fraudulent application during the period of provisional protection."

Such a patent would be set aside by proceedings in Revocation. (See chap. xiii.)

And section 26, sub-section (8), enacts :

"Where a patent has been revoked on the ground of fraud, the Comptroller may, on application of the true inventor, made in accordance with the provisions of this Act,

grant to him a patent in lieu of, and bearing the same date as the date of revocation of the patent so revoked;bu t the patent so granted shall cease on the expiration of the term for which the revoked patent was granted."

In re Vincent's patent, L.R. 2 Ch. 342 (1867), Lord Chelmsford, referring to the reference to the Law Officer on an application to seal a patent, said: "It would be making a dangerous precedent to allow an appeal from the Law Officer of the Crown, unless a case be made of surprise or fraud, or unless some material fact, which, if brought before the Law Officer would probably have led him to decide different, has subsequently come to the knowledge of the party appealing. I do not think that such an appeal ought to be allowed on the ground that some fact which was within the knowledge of the appellant at the time was not brought before the Law Officer."

In this case Vincent applied to have his patent sealed, but was opposed by Bruff, who in January, 1866, had taken out a patent for the same invention, which had been much used. Vincent alleged he was the true and first inventor, and had confidentially communicated the invention to Bruff, who had applied for and obtained letters patent for it in fraud of Vincent's rights. The Law Officer held it was a question for a jury, and so Vincent's patent should be sealed in order to try it. On appeal to the Lord Chancellor1 this decision was upheld.

In ex parte Bates, L.R. 4 Ch. 579 (1869), it is laid down in the case of two applicants for a similar patent: If one applicant can be shown in any way to have derived his information from the first specification, that will be fraudulent, and he will be excluded under section 10 of 15 & 16 Vict. c. 83 (now repealed and re-enacted by section 35 of the Patents Act of 1883) from any benefit.

1 Now there is no appeal from the decision of the Law Officer in matters relating to the question of the grant of a patent under section II, sub-section (3), but a patent obtained on an application made in fraud of the true and first inventor can be set aside by proceedings in Revocation under section 26 (see chap. xiii.). There is nothing giving any special jurisdiction to the Lord Chancellor in the Act, the power he formerly exercised as to sealing the patent being now vested in the Comptroller by section 12, sub-section (1).

8.12.

Ex parte Scott and Young, L.R. 6 Ch. 274 (1871).

Where a servant filed a provisional specification, after which the master filed a provisional specification for a similar invention, and afterwards a complete specification, and obtained letters patent, it was held under such circumstances the Great Seal might be affixed to the letters patent for the servant's invention, and that they would be antedated to the date of his provisional specification.

PART II.-The Sealing of the Patent.

S. 12 (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

1 In re Somerset's Patent, L.R. 13 Ch.D. 397 (1879). And also, probably under special circumstances an extension of time would be allowed; thus, in the case of Hersee v. Smyth, L.R. I Ch. 518 (1866), an applicant met with an accident, and the clerk of the solicitors did not know the rule, and the time went by. Extension was, however, granted by the Court on the ground of the accident to the applicant stopping his looking after his application.

fifteen months aforesaid, the patent may
be granted to his legal representative,
and sealed any time within twelve months,
after the death of the applicant.

By section 86—

contrary to law

granted.

"The Comptroller may refuse to grant a patent No invention
for an invention of which the use would, or morality to be
in his opinion, be contrary to law or
morality."

And by section 94 it is enacted-
When any discretionary power is by this Act
given to the Comptroller, he shall not
exercise that power adversely to the ap-
plicant for a patent, or for amendment of
a specification, without (if so required,
within the prescribed time by the appli-
cant), giving the applicant an opportunity
of being heard personally or by his agent.'

S. 94.

S. 13.

Section 13 enacts— "Every patent shall be dated and sealed as of the Date of patent. day of 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.1

In Saxby v. Hennct, L.R. 8 Ex. 210 (1873).

Two patents for the same invention were applied for, one on the 20th, and the other on the 23rd of July, 1867. The patent applied for on the 23rd was actually sealed before that of the 20th, but each were dated as of day of application. Held under section 24

See chap. i. p. 4.

A patent is evidence in itself.

In case of Two
Applications.

of 15 & 16 Vict. c. 83 (which is repealed by and reenacted in the above section) that the patents took effect as upon the days on which they were applied for respectively; and, therefore, acts done by virtue of the patent applied for on the 23rd were infringements of that of the 20th.

S. 84.

There shall be a seal for the Patent Office and impressions thereof shall be judicially noticed and admitted in evidence."

It is laid down, referring to this point, Duke of Devonshire v. Neill, Ir.R. 2 Ex.Div. 147 (1877), that a patent is a matter of record by virtue of the Great Seal, and is valid before enrolment; and in Wimbush v. Lord Willoughby, quoted there also, it is laid down that, "If the Seal of the King is put to any patent or writing made in the name of the King without warrant, this is a matter of record immediately, and is binding on the king."

When the Examiner has reported under section 7 (5) that there have been two applications for a patent for the same invention, the Comptroller may, under sub-section (6) of the same section, refuse to seal a patent on the second application, if he thinks both inventions are the same; subject to an appeal to the Law Officer (see p. 36). Or, if both the applications were made on the same day, patents may be sealed on each (p. 56).