In the Matter of Hughes' Patent. the accounts accompanying the petition were made up by the accountant. There were no vouchers or other corroboration. Held, that prolongation ought to be refused. On the 10th of June 1884, a patent (No. 8825 of 1884), for an "Improved 5 "composition for preventing the formation of and for preventing incrustation "in steam boilers," was granted to Henry Hughes, who, on the 9th of December 1897, presented a petition for the prolongation of the same. On the hearing of the petition, Moulton, Q.C., and J. W. Gordon (instructed by Darley and Cumberland, agents for Tarr and Arkell, of Bristol) appeared 10 for the Petitioner; Sir R. Webster, A.G., and Sutton appeared for the Crown. The Patentee and other witnesses gave evidence as to (1) the merit of the invention; (2) the difficulties the Patentee had had in introducing the invention to the public. From the evidence of the accountant, it appeared that there had been a net loss upon the working of the patent. It, however, 15 also appeared that the Patentee had kept no books in relation to such working. Shortly before the presentation of the petition, the Patentee had marked upon certain cheques drawn upon his private account at his bank approximately the amounts expended by him at different times upon the business of working the patent. Upon this information the accountant had based his calculations. No 20 vouchers were produced to confirm the items set out in the accounts. Re Lake's Patent, 8 R.P.C. 242, was cited for the Crown. Lord WATSON.-Their Lordships have come to the conclusion that in this case the accounts presented by the Petitioner are not in such a shape as to warrant them in reporting to Her Majesty that he has not been sufficiently 25 remunerated. It is not necessary to deal with the accounts generally. There are two items which run through the whole annual series of accounts from December 1886 downwards, to which our attention was very properly called by the AttorneyGeneral. The first of these is headed "Wages and commissions"; the second 30 is entitled "Demonstrating, advertising, illustrating, and exhibiting Petitioner's "invention "; and under these headings in each subsequent year from 1886 to 1897, there are sums similarly charged. Now, in the course of the examination of the witnesses, it has appeared that these sums are made up and entered in the accounts by a gentleman, a chartered accountant, not from any record kept at 35 the time in the books of the Petitioner as to the exact sum expended and how it was expended, but they are made up from materials which, of themselves, their Lordships venture to say, would not constitute vouchers at all in the sense of an accounting, unless they were supported and supplemented by parol proof. The parol proof, such as we had, was and I say it without any imputation on 40 the fairness and honesty of the gentleman who gave the evidence of a very loose description. He was satisfied that he had drawn cheques; that these cheques which he had drawn upon his banking account were applied to various purposes, including business purposes, and that the proportion of the proceeds of the cheques which was applied to business purposes practically, and sub45 stantially came to something like the sum charged in these two heads. Their Lordships regret that after what has been repeatedly said by members of this Board, delivering the judgment of this Board from this table, there should still exist so much misconception, or any misconception, as to the duty which is required of a Patentee who, when the natural course of his privilege 50 has run, intends to apply to Her Majesty for a prolongation of it. The present case in its circumstances resembles pretty closely in character the case of Re Betts' Patent, where the Patentee, who applied for a prolongation, had conducted two businesses, one in the manufacture of the patent capsule, which was the subject of his patent, and another business of a different class, and he 55 had allowed those businesses to get mixed up together in their conduct; and in presenting his accounts for a prolongation of the patent with regard to the 66 66 In the Matter of Hughes' Patent. capsule he presented several items, not unlike items which have been submitted to us to-day, in which it was very difficult to distinguish in that case the expenditure of the one business from the expenditure of the other, as, in this case, the expenditure of the individual from the expenditure on account of his patent. In that case the judgment of this Board was delivered by Lord 5 Chelmsford. The case is reported in 1 Moore's Reports, New Series, page 49. On behalf of the Board, his Lordship said :-"Their Lordships have to complain "of the very unsatisfactory manner in which the accounts have been presented "to them, which has compelled them in many particulars to resort to conjecture "where certainty ought to have been afforded. There can be no difficulty in a 10 "Patentee beginning from the first to keep a patent account distinct and separate "from any other business in which he may happen to be engaged. He knows perfectly well that if his invention is of public utility, and he has not been adequately remunerated, he will have a claim for an extension of the original "term of his patent. It is not, therefore, too much to expect that he should be 15 "prepared when the necessity arises to give the clearest evidence of everything "which has been paid and received on account of the patent." I think it is not immaterial to read the words that follow, which apply that principle to the circumstances which occur in that case :-"In the present case it is said that "the capsule business, the subject of the patent, was blended with the other 20 "business of the Petitioner carried on in Wharf Road, and that it is impossible "to distinguish them. This may be perfectly true at the present time, but it "need not have been so if the Petitioner had proceeded from the first upon a "separate system of account-keeping. For want of this, he has to resort to "speculation as to how much of the entire business ought to be ascribed to the 25 "patent, and to arrive at the conclusion by assuming as the basis of calculation "the amount of royalty which a licensee would be disposed to give." If for "Speculation as to how much of the entire business ought to be ascribed to the "patent" you substitute "How much of the proceeds of each cheque ought to "be ascribed to the patent," you simply have a repetition of the facts of that 30 case. Their Lordships will humbly advise Her Majesty to refuse the prolongation. Coppin v. Lloyd. 5 IN THE HIGH COURT OF JUSTICE.-QUEEN'S BENCH DIVISION. Before MR. JUSTICE CHANNELL.-January 25th and 26th, 1898. Patent.-Action for infringement.—Alleged licence.-Revocability of licence. C., being the Patentee and owner of an invention, entered into the employ of L. under an arrangement whereby L. purchased C.'s stock of the patented goods, and was to be entitled to make and sell the patented articles. C. subsequently left L.'s employ, and commenced an action for infringement of the patent 10 against L., and a second action also against P., who claimed to be the assignee of L.'s business. On behalf of L. and P., it was contended that C. had granted an irrevocable licence to manufacture and sell the patented articles. Held, that so far as the licence to L. was by parol, it was primâ facie revocable, and was in fact intended to be revocable, and that the documentary evidence 15 confirmed this view, and that C. having revoked the licence, L. and P. must be restrained from infringing the patent. W. S. Coppin having commenced actions for infringement of Letters Patent (No. 6394 of 1895) granted to him, which related to a special form of canopy for chairs, hammocks, &c., against Mary Ann Lloyd and also against Palmer, 20 her successor in business, the actions came on for trial together, when the only substantial question between the parties was whether the Defendants were entitled to manufacture and sell the patented articles as licensees of the Plaintiff. The facts sufficiently appear from the judgment of the learned Judge. 25 Christopher James (instructed by J. Gray) appeared for the Plaintiff; R. J. Drake and W. R. Willson (instructed by Warner and Seligman) appeared for the Defendants. CHANNELL, J.-I think in this case there must be judgment against both Defendants for an injunction, with costs. I will first deal only with the 30 case of Mrs. Lloyd, although her husband has managed the whole thing. Mr. Coppin, the Plaintiff, was the owner of a patent, and it has not been suggested, and I do not think the Defendants, who claim a licence from him, suggest it was a bad patent. I know nothing about it. I have not been told what it is for, except that it is for canopies for chairs. I have not had the Specification; 35 but the Plaintiff is not making any use of the patent. As I said in the course of the case, somehow or another, inventors are almost always impecunious and he got into connection with Mr. Lloyd on behalf of Mrs. Lloyd, and they came to a parol arrangement, which included the purchase of the Plaintiff's stock and certain things which he had got for the purpose of making the 40 patented article. The smaller the amount of that was, the more inconceivable, it seems to me, that it should be a part of the terms that the purchasers of the stock were to be entitled to manufacture according to the patent during the whole term of the patent; because that is what their claim in fact is. A paorl Coppin v. Lloyd. licence to do such a thing would certainly prima facie be revocable. I do not mean to say that the parties could not make a parol arrangement which should be irrevocable. I suppose they might, but it would be a little difficult to do, and you would require very specific evidence of their intention to do it. It is not pretended by Mr. Lloyd that he ever said to Mr. Coppin, “Of course, it is 5 "understood that if we part, I am to have the right to go on, or anything of "that sort." Nothing of the kind is professed to have been said, and one has to form one's view of it. I cannot for a moment draw the inference that Coppin gave a permanent right to Mr. or Mrs. Lloyd to manufacture this thing for all time. Under such circumstances, it is perfectly unimportant whether it was 10 understood that it should last during the time that Mr. Coppin remained in their employ. I should think that was the understanding between the parties, but I do not think it was part of the bargain. I think the bargain simply was that they should have permission-the usual revocable permission-of a Patentee to go on doing this until the arrangement was put an end to. I think that, having 15 received the money for the partly made articles, the Plaintiff could not have prevented their finishing those articles; but when those articles were finished, it became an ordinary revocable permission to go on as long as the parties pleased. The Lloyds had, in addition, undertaken no reciprocal obligations to him about keeping it before the public, or anything else, which is the sort of 20 thing that Patentees generally ask; and probably the understanding between them was that they should go on whilst he was in their employment, although I do not think that was part of the terms. Of course if either party had put an end to the employment, naturally Mr. Coppin would have put an end to the permission, or have done the very thing which they negotiated about, namely, have come 25 and said, "Now I am going out of your employ, what is going to be paid to "me for the future if you are continuing to use this invention ?" It is admitted that that was negotiated, whether it was agreed or not. So that the whole of that seems to me to be entirely consistent with the natural and reasonable view, namely, that it should be a revocable licence in the first instance. 30 Now that is so as far as parol conversation is concerned. Then there is the document called a receipt, signed on the 12th of June, which has been stamped now as an agreement. Although it is a receipt, it has something in it which, it is suggested, shows an agreement: "Received of Mrs. Lloyd the sum of 1l. 1s. 2d. for stock "&c. sold by me, being frames and hollands for making the patent canopy and 35 (6 my permission to do so. Now if that is to be taken as a document in writing between the parties, I should certainly put the same construction upon that as I put upon the parol arrangement. It is either a permission to make these frames and hollands, which are mentioned, into the patent canopies, or if the phrase, "my permission to do so," mean anything, I think that it means a 40 revocable permission; because prima facie a permission of that kind is revocable. Therefore, if that is to be taken to be the governing document, I should come to the same conclusion. Then on the 17th of June there were, at any rate, negotiations, and negotiations which, I should have thought, could not have taken place if the Defendants' view then was that which it is now asserted to be, 45 namely, that they had already got an irrevocable permission to manufacture these articles. Because it is admitted that a certain document was part of the negotiations, or something proposed, and this document has got in it a proposal--at any rate, it is not anything more-to pay 4d. per canopy, and Mr. Coppin is still to have the equal right to manufacture. Consequently, according to this, they 50 were paying or would have been paying 4d. for nothing if they had agreed to that. So that I should have thought they hardly would have considered it; but it is agreed that they did consider it. Mr. Coppin says that they not only considered it but agreed to it, and that he, at any rate, signed a duplicate of this document. He says so now, and swears to it in his evidence. On the other 55 hand, Mr. Lloyd, the other party to the transaction, swears most positively that 66 66 66 Coppin v. Lloyd. Coppin v. Palmer. nothing was signed at all; that no agreement was come to, and that it was mere negotiation. In that state of things, two days afterwards Mr. Coppin writes this to Mrs. Lloyd,--the meeting between them having been with Mr. Lloyd, who then managed the business; but it is addressed to Mrs. Lloyd, who 5 is supposed to be the owner of the business :-"Dear Madam,-Will you kindly sign the enclosed note or acknowledgment on your part so as to confirm the arrangement made by Mr. Lloyd on your behalf that I should receive a "royalty of 4d. on each of my patent canopies as I have done so on my part "and it only requires you to confirm the same"? Now if nothing of that kind 10 had happened-if the true thing that had happened two days before, was that no agreement had been come to at all, to my mind it is absolutely inconceivable that Mr. Coppin should have written this. But there is more in it than that. This letter was not apparently copied. So far as it appears, this letter was produced for the first time to Mr. Coppin after he had given his evidence. I 15 am not sure whether I am right in that. It certainly was not mentioned, and I so understood. It was not produced by Mr. James as part of his evidence, and I so understood it from his client. Therefore you get from the production of that a most remarkable corroboration of that which Mr. Coppin had been swearing before, and it seems to me it is absolutely impossible that he should 20 have put this view of his at that time into writing if it was not true. But, in the next place, if he did-if he was such a remarkable man as to invent an entirely false story altogether, at a time when there was no reason whatever for doing it, and put it into writing in that very curious way, how would the persons to whom it would be written be likely to have dealt with it? Surely there 25 would have been some statement, "This is all a lie-what in the world do you mean by asking us to sign this document "? But the curious thing is that what they do upon that letter is this: they come up to Somerset House and on the next day stamp this receipt, which they had had about eight days before. It had occurred to somebody then that they could say, that which to my mind 30 is monstrous, that the words in this "And my permission to do so meant a permission to do so for all time; and accordingly they go off and stamp that document. It is remarkable that the last two lines of that document have evidently been written at a different time, and Mr. Coppin says that he believes that they have been written subsequent to his signature. I hardly like to think 35 that that can be so, because that is a very gross thing to have done; but undoubtedly it is the fact, and I am quite positive about it, that these words have been written since. Very often people, when writing out documents, do write out a thing, and then think they can improve upon it; but it by no means follows, and I should be loth to think that this had been written since 40 the signature. Undoubtedly, to my mind, it was at that time that it first entered into these people's heads to say, "Well, we have not confirmed this; "we are told in Mr. Coppin's own handwriting that he does not think it is "sufficient unless we confirm it; do not let us confirm it, but let us go and "have this as the real authoritative document, and set that up." Accordingly 45 that is what they were doing. I do not think it helps them. I take it for granted that they signed the document as it is; but I think the true interpretation is that it was a revocable document. Now the other document-the one that is supposed to be signed--is not really of any importance in the action. Mr. Lloyd's evidence and Mr. Palmer's evidence are absolutely and entirely 50 inconsistent with Mr. Atkins'. I do not understand Mr. Atkins as saying, because he does not recollect the dates, that it was before the dispute with the Lloyds on Mr. Coppin's part that Mr. Coppin gave him that, but it was some little before the 1st of July when he wrote the letter; and what we find is that Mr. Lloyd says there were negotiations going on with Coppin-negotia55 tions for something which appears to me to be inconsistent with any documents which we have got; but he says, "They were negotiations for the exclusive |