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That the patentee or patentees did not specify the best mode known to him or them of carrying out the invention; or that he or they inserted or kept back any part or matter with intention to deceive; or that the specification does not sufficiently describe the invention, so that a person of ordinary understanding, skill, and knowledge in the trade to which it relates, could work it without further information or experi
An action for revocation of a patent may be instituted by::-
(1) The Attorney-General in England or Ireland, or the Lord Advocate in Scotland, or any person authorised by one of these officials.
(2) Any person alleging that the patent was obtained in fraud of his rights, or of the rights of any person under or through whom he claims.
(3) Any person alleging that he or any person under or through whom he claims was the true inventor of any invention included in the claim of the patent.
(4) Any person alleging that he or any person under or through whom he claims an interest in any trade, business, or manufacture had publicly manufactured, used, or sold, within this realm, before the date of the patent, anything claimed by the patentee as his invention.
In an action for a revocation of a patent the plaintiff, that is, the person seeking to upset the patent, must deliver particulars beforehand of the objections and evidence on which he means to rely. These particulars can be amended only by order of the court or a judge, and no evidence can be brought forward against the patent at the trial, except what relates to the particulars previously delivered.
If the patentee find from the particulars of objections that his patent specification contains claims that are old, or a part or parts that are bad at law, he
can, by order of a court or judge, enter a disclaimer, as already described (the legal proceedings being suspended meanwhile), and put in that disclaimer as evidence in his defence in the action instituted to revoke his patent.
The defendant (owner of the patent) is entitled to begin, and give evidence at the hearing in support of the patent, and also to reply, if the plaintiff gives evidence against the validity of the patent.
Where a patent has been revoked on the ground of fraud, the Comptroller may, on the application of the true inventor, grant to him a patent in lieu of and bearing the same date as the date of revocation of the patent so revoked, but the patent so granted shall cease on the expiration of the term for which the revoked patent was granted. Such a patent would be of doubtful validity, as publication of the invention would have taken place before its date.
INFRINGEMENTS OF PATENTS.
In case of infringement, before taking any action, the patentee should inquire thoroughly into the validity of the patent, and ascertain to the best of his ability whether the act complained of be really an infringement of it. The advice of a good Patent Agent on these points is of the highest importance.
If the infringement be real, the matter should be placed in the hands of a solicitor well versed in such practice.
Should the patentee, after applying for an injunction, make affidavit that he verily believes that his patent is valid, and is being infringed in a certain factory, and can give reasonable grounds for his belief, the court will grant an order for a single inspection of the works, but not, as a rule, of the books of the suspected infringer, to see whether
the suspicion be correct. It will also compel the suspected party to answer under oath all reasonable interrogatories asked by the patentee as to the supposed infringement.
The infringement, even though unintentional, being proved, the court can assess damages and decree costs, and further, will grant a perpetual injunction against the defendant continuing the infringement, on pain of fine and imprisonment. The decision can also be cited in applying for an "interim injunction," against other parties.
The court may, prior to the action, grant an "interim injunction " forbidding the infringer from continuing the use or manufacture of the patented invention, under pain of fine and imprisonment, until the trial be decided. This power, however, is at the discretion of the court, and is rarely made use of, except where the infringement is recent, the patent of long standing, and the application has been made immediately after the infringement has been discovered.
Should the alleged infringer dispute the validity of the patent, or his infringement of it, the court, instead of granting the interim injunction, may order the infringer to keep careful accounts while the suit is pending of all articles manufactured, so that damages may more easily be assessed in case of conviction.
The patentee can be obliged to produce his letters patent in court, or lose his suit.
The court may order all matters of account to be decided by arbitration.
In an action or proceeding for infringement or revocation of a patent, the court may if it thinks fit,
and must, on the request of either of the parties to the proceeding, call in the aid of an assessor specially qualified, and try and hear the case wholly or partially with his assistance; the action is tried without a jury unless the court otherwise direct.
The Court of Appeal or the Judicial Committee of the Privy Council may, if they see fit, in any proceeding before them respectively, call in the aid of a specially qualified assessor.
The remuneration, if any, paid to the assessor, is determined by the court or the Court of Appeal or Judicial Committee, as the case may be, and is paid by Government, and forms no part of the costs of the action.
In an action for infringement of a patent the plaintiff (the owner of the patent) must deliver with his statement of claim, or, by order of the court or the judge, at any subsequent time, particulars of the infringements complained of.
The defendant (the person accused of infringing) must deliver with his statement of defence, or, by order of the court or a judge, at any subsequent time, particulars of any objections on which he relies in support of his case.
If the defendant disputes the validity of the patent, the particulars delivered by him must state on what grounds he disputes it, and if one of the grounds be want of novelty, must state the time and place of the previous publication or user alleged by him.
At the hearing no evidence can, except by leave of the court or a judge, be admitted in proof of any alleged infringement or objection of which particulars were not so delivered.
Particulars delivered may be from time to time amended, by leave of the court or a judge, but in such case the payment of costs of the opposite party
up to that date is frequently a condition of leave to amend.
In an action for infringement of a patent, the court or a judge may certify that the validity of the patent came in question; and if the court or a judge so certifies, then, in any subsequent action for infringement, the plaintiff in that action, on obtaining a final order or judgment in his favour, shall have his full costs, charges, and expenses as between solicitor and client," unless the court or judge trying the action certifies that he ought not to have the same.
On taxation of costs, regard will be had to the particulars delivered by the plaintiff and by the defendant; and they respectively cannot be allowed any costs in respect of any particular delivered by them, unless the same be certified by the court or a judge to have been proven, or to have been reasonable and proper, without regard to the general costs of the case.
LICENSES AND ASSIGNMENTS.
A patentee can assign his patent in whole or in part, not only as regards its duration, but also its subject-matter and its territorial limits. But a patentee assigning any (say one-hundredth) part of a patent, unless there be a special agreement in writing, is giving the assignee in every respect an equal share with himself in the invention and patent, as they are simply co-owners of the patent. A patentee can grant licenses to use this patent on royalty, either exclusive or concurrent, and over the whole or only some part of the United Kingdom.
All licenses and assignments must be stamped, and must be registered in the Register of Patents in London; and copies of entries in this register, duly certified by the officials, are primâ facie evidence in