Page images
PDF
EPUB

Hulton and Bleakley's Petition.

(7) The said Patentees are to the best of your Petitioners' belief either in the

employ of or partners in the Firm of Messrs. Taylor, Garnett, & Co., the said " firm being the proprietors of a paper known as the “ Manchester Guardian,"

“and such last firm, as appears from the letters hereinafter referred to, are 5 “ purporting to act in the matter of granting licenses under the said patents.

(8) The Petitioners, on the 17th day of August 1897, wrote to the said Messrs. Taylor, Garnett, & Co. the following letter:

“ The Evening Chronicle,'

“ Withy Grove, Manchester, 10

17th August 1897. “ Gentlemen,-We are anxious to have fitted to our machines five of your “ fast result boxes, which, I believe, are manufactured on your behalf by “ Messrs. Hoe & Co. We are willing to pay you whatever royalty you charge

“ in addition to the cost of the boxes. An early reply will oblige. 15

“ Yours truly, “ The Proprietors

“ (Signed) E. Hulton & Co." “ Manchester Guardian.”

[ocr errors]

And on the 18th day of August 1897 the said Messrs. Taylor, Garnett, de Co.

replied as follows: 20

6. The Manchester Guardian,'

“3, Cross Street, Manchester, “ To Messrs. Edward Hulton & Co.,

“ 18th August 1897. “The Evening Chronicle.'

“ Dear Sirs,-In reply to your enquiry dated 17th_August, I regret to say 25 “ that, owing to the contract with the Manchester Evening News,' we are

"unable to grant you a license to use our patent type device with the fast “ result boxes for which you ask.

* Believe me,

“ Yours faithfully, 30

(Signed) C. Binney Dibblee."

“ Your Petitioners on the 7th January 1898, after ascertaining that the legal “ estate in the said Letters Patent No. 5989 of 1888 was still rested in the said “ Buxton, Braithwaite, and Smith applied to them for a license under the said

“ Letters Patent, but in answer to such application your Petitioners have been 35 “ informed that the said Letters Patent are the property of Messrs. Taylor,

Garnett, & Co. (9) Your Petitioners believe that a license to use the said “ invention has been granted to the proprietors of the Manchester Evening “ News' but your Petitioners are unable to ascertain the terms of the license,

“ or the amount of royalty paid hy the said licensees. (10) The Petitioners 40 “ require, for the reasonable requirements of the public, a license from the

“ owners of the said Letters Patent to use the said late news fast printing " device in connection with their newspapers ; particularly in connection “ with the Manchester Evening Chronicle,' a daily evening paper, having a

“ daily circulation of 100,000 copies and containing, besides general news, 45 sporting and other results which can only be inserted in the paper at a late

“hour. This paper has a large reading public and is sold not only in “ Manchester and all its suburbs, but in considerable numbers in all the “ neighbouring towns within fifty miles. (11) Under the present circumstances

“ it is impossible for the latest news of the day to be inserted at all in the paper 50 “ owing to the Petitioners being unable to use the invention in the said two

patents, and earlier news can only be inserted with considerable loss of “ time. That section of the public who read and purchase your Petitioners' newspaper are thereby prevented from being supplied with their reasonable requirements with respect to the invention as the purveyance to them of late

news through the medium of the paper they are accustomed to peruse is “ attended in all cases with great loss of time and in some cases completely

55 «

Hulton and Bleakley's Petition.

“ prevented. (12) Your Petitioners are willing to pay the same royalty as

any other licensees are paying for the use of the said patented inventions or ( such other sum as to the Board of Trade may appear reasonable.”

Affidavits were filed in support of and in opposition to the Petition.

The Petition came on for hearing on the 4th April 1898, before W. R. Bous- 5 field, Esq., Q.C., the Referee appointed by the Board of Trade.

T. Terrell, Q.C., and A. J. Walter (instructed by Pritchard, Englefield & Co.) appeared for the Petitioners ; Asquith, Q.C., and J. C. Graham (instructed by W.J. & E. H, Tremellen, agents for Blair & Seddon, Manchester) appeared for the Respondents other than D. Braithwaite, who had been served but who did not 10 appear. J. H. Buxton and M. Smith in their affidavits disclaimed any interest in the patents. Terrell, Q.C., raised the question whether the Petitioners' Counsel, or Respondents' Counsel should begin. [The REFEREE.—The Petitioners must begin.j Terrell, Q.C., then opened the Petitioners' case and explained the nature of the two inventions, which for the purpose of this report is sufficiently 15 stated in paragraphs 5 and 6 of the Petition) and continued : -A new question arises here upon section 22, subsection (7) of the Patents, &c. Act, 1883, namely as to what is the meaning of the word "public.” [The REFEREE.—Prima facie, the "public" is the public who desire to be supplied with the invention.] We wish to put a broader view of the word. The facts here are that there are 20 three evening papers in Manchester, one-the “ Chronicle "—is ours, and there are the “Evening News” and the “ Mail.” Taylor, Garnett, & Co., are the proprietors of the “Manchester Guardian " and the “ Evening News," one of whose proprietors is J. E. Taylor, is printed at the same office, and has got an exclusive licence under the patents for Manchester and district from Taylor, 25 Garnett & Co., the inventions being only of value to evening papers. The

Evening News” is the evening Liberal paper of Manchester, the * Mail” is Conservative, whilst the “ Chronicle" is independent ; it was started in 1897, but is hindered by not having the use of these inventions. Each paper has its own public whose requirements ought to be satisfied, and it is no answer to say 30 that the public can buy the “ Evening News.” Our portion of the public wants our paper, but with the latest news. [The REFEREE intimated that he thought that here the "public" within the meaning of the Act consisted of the newspaper printers who desired to use the invention.] Then the Respondents say that they cannot grant the Petitioners a licence because they have granted an 35 exclusive licence to the “Evening News.” [The REFEREE.—That does not matter to the Board of Trade ; otherwise it would be in the power of proprietors of patents to set the Board of Trade at nought.]

Asquith, Q.C., being asked by The REFEREE to state shortly the grounds of opposition, stated that the Respondents had granted licences in Yorkshire and 40 other parts of England, and were free, at all events in some instances, to grant licences to rival papers in the same town. The Patentees, therefore, had not been confining the use of the invention to their own paper, or unduly monopolising it. The question is, whether it was intended under the words in the Act that a Patentee should be compelled to grant a licence to a rival trader in the 45 same town for the purpose of facilitating the competition of that rival. [The REFEREE.-I should separate you in your character of printers and your character of owners of these patents.] Nobody but newspaper printers would care to use this invention. Taylor, Garnett, & Co. are interested in the “ Evening News,” both as proprietors and because it is one of their customers. 50 The want of the use of these inventions is not, in fact, the cause of the difficulties which the Petitioners complain of. There is a possible substitute. [The REFEREE.-For this purpose, I must look on you as the makers and vendors of an apparatus, and you are not supplying the public in the particular district with it.] It is sufficient if the invention is being utilised in the district 55 for the public benefit. The reasonable requirements of the public are satisfied. The public collectively does not require the invention to use it, and they have the benefit of the invention, namely, the rapid diffusion of news,

Hulton and Bleakley's Petition.

The affidavits were read and some of the Deponents were cross-examined.

The REFEREE intimated that he wished to hear the Respondents' Counsel on the point whether the reasonable requirements of the public, using that term

in either sense, were satisfied. 5 Asquith, Q.C., and Graham for the Respondents.-It must be shown that by

reason of the default on the part of the Patentees to grant a licence on reasonable terms, the reasonable requirements of the public cannot be satisfied. No reader of the “ Chronicle” has come to give evidence of actual inconvenience, there is

only the hearsay evidence of newsagents. Also, an exclusive licence has been 10 granted to the “ Evening News," and it is not a case where the licensee is not

using the invention. [The REFEREE.—It comes back to the question whether the reasonable requirements of the public are satisfied. As to the meaning of the “public,” it seems desirable to consider the section in such a way as to

leave the powers of the Board of Trade as wide as possible, because they have 15 always a discretion. In some cases, the public to be regarded might be the users

of the invention, and in other cases the public might be the consumers.] Both the producing and the consuming public may be regarded, but here, as regards production, the complaint is an individual one, and as regards the consuming

public, the reasonable requirements of that part of it consisting of the readers of 20 the “Chronicle" are satisfied, although the “Chronicle" itself might be in a

better position if it had this apparatus. Furthermore, no royalty will really compensate us. The highest royalty has hitherto been £15 per machine per annum.

Terrell, Q.C., in reply.-[The REFEREE stated that he thought that the argument that, looking at the Petitioners as members of the producing public, 25 their grievance was an individual grievance, was a strong one, but that as

regards the section of the public who exclusively read the Petitioners' paper, he was inclined to think that their reasonable requirements were not satisfied.] There is evidence that there is a producing public in Manchester whose reasonable

requirements are not satisfied, and we are persons interested within the meaning 30 of the Act. Then as regards the amount of the royalty, if a licence be granted, in

fixing such royalty the profits which the Respondents get by restricting the use of the invention should not be taken into account.

The REFEREE having reported to the Board of Trade, an Order was made by the Board, dated the 27th of July 1898, whereby (after certain recitals including 35 a recital that the said J. E. Taylor and C. P. Scott together with the said J. H.

Buxton, D. Braithwaite, and M. Smith were thereinafter referred to “ Patentees ") it was ordered

“ 1. That a licence to take effect from the date of this order and in the form set “forth in the schedule hereto be forth with granted by the patentees to the said 10

Petitioners to use the inventions described and claimed in and by the Specifica“ tions of the said Letters Patent No. 5470 of 1886 and No. 5989 of 1888 “respectively for the unexpired residues of the respective terms of the said “ Letters Patent, at a royalty of twenty pounds (£20) per annum in respect of

“ each machine in connection with which the invention contained in the 45 respective Letters Patent above referred to or either of them shall be used and

“the Patentees shall forth with deposit such licence duly executed by them with " the Board of Trade :

“ 2. The said Petitioners, before the 27th day of August 1898, shall execute “ and deposit with the Board of Trade a counterpart licence in the form afore50 said, and in default of their doing so this order shall be of no effect.”

The form of licence in the schedule ended with a proviso that if the said Letters Patent or either of them should become void or should declared by a Court of Law to be void the licensees might, with the consent of the Board of Trade, by notice in writing to the Patentees revoke the licence.

as

6 the

In the Matter of Crosfield and Son's Applications to Register Trade Marks.

IN THE High COURT OF JUSTICE.—CHANCERY DIVISION.

Before MR. JUSTICE NORTH.-November 1st, 1898.

IN THE MATTER OF CROSFIELD AND SON'S APPLICATIONS TO REGISTER

TRADE MARKS.

Trade Marks.-Application to register.Oppositions.Registration allowed 5 by Registrar.-Appeal from Registrar's decision referred to Court.-Appeal motion set down in non-witness list.-Agreement between the parties that motion be dismissed without costs, that opposition be withdrawn, and that the Comptroller be directed to proceed with the registration.- Application for order pursuant to agreement.Practice.

10 In 1897, Joseph Crosfield and Son, Ld., applied to register a Trade Mark for soap in Class 47, under No. 204,165, and at the same time they applied to register the same Trade Mark for soap in Class 48, under No. 204,302. These applications were opposed by Lever Brothers, Ld., on the ground in each case that, having regard to a Trade Mark previously registered by 15 Lever Brothers, Ld. in Classes 47 and 48, the Applicants' proposed Trade Mark was not a proper Trade Mark to be admitted to the Register. The matter came before the Registrar of Trade Marks, who decided that the applications ought to be acceded to and the Trade Mark registered. Lever Brothers, Ld., appealed from the Registrar's decision to the Board of Trade, who referred the 20 matter to the Court, and Lever Brothers thereupon gave notice of motion before Mr. Justice NORTH, asking that the registration of the said Trade Mark might be refused. Affidavits were filed and the motion set down in the non-witness list. On the 1st of November 1898, Schiller (instructed by C. Urquhart Fisher) appeared, and informed his Lordship that the parties had come to terms, and 25 that Lever Brothers, Ld., had agreed that they would withdraw their opposition, and that J. Crosfield and Son should be allowed to register their Trade Mark, but that the Registrar refused to proceed with the registration until he had an order from the Court on account of the Appeal being before the Court, and he asked for an order directing that the registration be proceeded with.

NORTH, J.-I do not see how I can make an order, as the case has been taken out of my paper by the consent of the parties. It is withdrawn.

Schiller:-But the parties have agreed that there should be an order by your Lordship dismissing the appeal, which is not absolutely withdrawn.

NORTH, J.-If the parties both appear and agree, I can dismiss the appeal.

Schiller.That is what I ask your Lordship to do. I hold a consent, duly signed by the solicitors of both parties, in these terms :-“ We consent to the “motion herein being dismissed without costs, the Applicants Lever Brothers, Ld., withdrawing their oppositions to the above-mentioned applications; that “ the Comptroller-General of Patents, Designs, and Trade Marks may be 40 “ directed to proceed with the registration of Joseph Crosfield and Son's, Ld., "applications for Trade Marks Nos. 204,165 and 204,302 in Classes 47 and 48 “ respectively; and that the costs of the Comptroller-General of Patents, “ Designs, and Trade Marks (if any) may be borne equally between the Applicants and Respondents."

45

30

35

In the Matter of Crosfield and Sun's Applications to Register Trade Marks.

NORTH, J.-I cannot take a written consent of that sort. If the parties both appear before me and consent to the appeal being dismissed, I will make an order dismissing it. I cannot do more than that.

Schiller.- Would it be sufficient if the solicitor for Messrs. Lever authorised 5 me to appear for both parties ?

NORTH, J.-If Counsel appear for both sides and consent to the appeal being dismissed, I will make an order dismissing it.

Schiller.-Would your Lordship do this for me? Dismiss the appeal on the terms that I stated, subject to my producing a consent brief. 10 NORTH, J.-Yes; that is what I said in effect.

IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION.

Before MR. JUSTICE STIRLING.–November 8th, 1898.

IN THE MATTER OF OWEN'S PATENT.

Patent.-Petition for revocation.-Application for leave to apply to amend 15 Specification.Disclaimer.Patents, dc. Act, 1883, Sections 18 and 19, and

Patents Act, 1888, Section 5.

A Patent having been granted to 0. in 1896, P. in 1897 presented a petition for revocation, and in his Particulars of Objections alleged (inter alia) want of

utility, insufficiency of Specification, and that the alleged invention was not 20 capable of being carried into practice. 0. applied for liberty to apply at the

Patent Office for leave to amend his Specification, and in his affidavit filed in support admitted that two statements in the Specification were incorrect. The Petitioner objected to liberty being given on the ground that the proposed altera

tions were not by way of disclaimer, and that under Section 19 of the Patents, 25 dc. Act, 1883, there was no jurisdiction to give liberty to apply except where disclaimer only was sought.

Held, that the word disclaimer in Section 19 of the Patents, &c. Act, 1883, must be read strictly, and does not include corrections or explanations except

such explanations as may be required for the purpose of defining the disclaimer. 30 The application was dismissed with costs, such costs to be costs in the petition,

and to be the Petitioner's in any event.

On the 5th of June 1896, Letters Patent (No. 12,368 of 1896) were granted to William Owen for an invention of “An improved manufacture of artificial

“ stone, marble, and the like." 35 The Complete Specification was, so far as material, as follows :-"One method

“ heretofore practised for the manufacture of artificial stone is to mix dry sand

« PreviousContinue »