The ground of opposition (d) is the same as the third ground mentioned in Act of 1883, sect. 11, sub-sect. 1, as amended For further information as to this ground, by Act of 1888, sect. 4. see Vol. II., pp. 50–51. It is clear that the old grounds of opposition (a) and (d) are not open to any person, but only to particular persons specified who have a special interest in opposing the grant. " with It is not quite so clear whether the words "any person which the section commences, when applied to the grounds of opposition (b) and (c) include any person generally, or are limited to persons having a special interest. It was decided that the old ground of opposition, which, extended and limited as above stated, is now represented by (b), was not open to any person generally, but only to persons, whether as original owners, assignees, or otherwise, having a direct interest in opposing the grant (see Vol. II. pp. 34-35). The ratio decidendi (viz. that the words "if the opponent is, in his opinion, a person entitled to be heard" which occur in subsect. 3, post, point to persons who are not entitled to be heard) of the cases upon the old ground of opposition are equally applicable to the new ground (b), and it is, therefore, to be assumed that this ground is only open to persons having a direct interest. As to the ground of opposition (c) it is apparent that there may be persons who have a direct interest in preventing the grant on the ground of insufficient description, e.g. a prior (actual or prospective) patentee, when the applicant's specification is sufficiently vague to be capable of a construction which would include something within the prior claim; or a manufacturer who is actually making, or bona fide proposing to make, something which is old, and yet, by virtue of the applicant's insufficient description, might possibly be held to come within his claim; or a person who is bona fide desirous of embarking on the manufacture of the invention as a licensee (compulsory or otherwise), but is unable to appreciate, from the description given in the specification, the manner in which the invention is to be performed. The reasons upon which the constituted tribunals held that the old ground of opposition based on prior claim was only open to persons having a direct interest in stopping the grant are equally applicable to the new ground (c). It will probably be held that this new ground (c) is not open to any person, but only to any person who has a direct interest. Ever since the Act of 1852, up to the passing of this Act, it has been competent to an applicant to question the locus standi of an opponent on any authorised ground of opposition. Since this Act does not define the term 66 "" any person as used in the section, it is likely that the term will, in accordance with the well-established The references in black type are to Frost's "Patent Law and Practice," 3rd Edition, 1906. Grant and sealing of patent. rule, be construed as bearing the limited meaning which the decided cases under the older and consolidated Acts put upon it. Sub-sects. 2 and 3 comprise Act of 1883, sect. 11, sub-sects. 2, 3, and 4. The comptroller and law officer are not bound to refuse the grant of a patent on an opposed application, even if the ground of opposition is proved. It is only in cases which are absolutely clear that the grant is refused (see Vol. II., pp. 28-29). In the majority of cases the grant is allowed, but subject to such modifications of the specification, references, and disclaimers as may be required to protect the opponent and the public. As to the general principles upon which amendments, references, and disclaimers are ordered in opposition proceedings, see Vol. II., pp. 41-50. 12. (1) If there is no opposition, or, in case of opposition, if the determination is in favour of the grant of a patent, a patent shall, on payment of the prescribed fee, be granted to the applicant, or, in the case of a joint application, to the applicants jointly, and the comptroller shall cause the patent to be sealed with the seal of the patent office. (2) A patent shall be sealed as soon as may be, and not after the expiration of fifteen months from the date of application, provided that (a) Where the comptroller has allowed an extension of the time within which a complete specification may be left or accepted, a further extension of four months after the said fifteen months shall be allowed for the sealing of the patent: (b) 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: (c) Where the patent is granted to the legal representative of an applicant who has died before the expiration of the time which would otherwise be allowed for sealing the patent, the patent may be sealed at any time within twelve months after the date of his death: (d) Where in consequence of the neglect or failure of the applicant to pay any fee a patent cannot be sealed within the period allowed by this section, that The references in black type are to Frost's "Patent Law and Practice," 3rd Edition, 1906. period may, on payment of the prescribed fee and Sub-sect. 1 comprises Act of 1883, sect. 12, sub-sect. 1. In sub-sect. 2 the proviso (a) is Act of 1885, sect. 3; the proviso (b) is Act of 1883, sect. 12, sub-sect. 3 (a); and the proviso (c) comprises Act of 1883, sect. 12, sub.-sect. 3 (b), and Act of 1885, sect. 3. The proviso (d) is new, and was introduced by the (Amendment) Act of 1907, sect. 11, sub-sects. 1 and 2. The Act of 1902, sect. 1, sub-sect. 10, provided that the Board of Trade, with the sanction of the Treasury, might prescribe an additional fee, not exceeding one pound, in respect of the investigation mentioned in that section, which should be payable on the sealing of the patent. Rule 12 of the Patent Rules, 1905, which was made in pursuance of sect. 1, sub-sect. 9, of the Act of 1902, provided that if the applicant for a patent desired to have a patent sealed on his application, he must, on or before the last day on which a patent could be lawfully sealed, pay the prescribed sealing fee; and if such fee were not paid, no patent should be sealed; and the prescribed sealing fee should be paid by leaving at the patent office Form X. in the second schedule to the Rules, duly stamped. It was found in practice that many applicants omitted to apply for the seal on Form X. till too late, and the present proviso (d) was introduced by (Amendment) Act of 1907, sect. 11, sub-sects. 1 and 2, to relieve any future applicant who may neglect or fail to pay the fee at the proper time. For further information on the subject of sealing the patent, see Vol. II., pp. 51-53. 13. Except as otherwise expressly provided by this Act, Date of patent a patent shall be dated and sealed as of the date of the application; provided that no proceedings shall be taken in respect of an infringement committed before the publication of the complete specification. 66 This is Act of 1883, sect. 13, with the addition of the words except as otherwise expressly provided by this Act" at the com The references in black type are to Frost's "Patent Law and Practice," 3rd Edition, 1906. Effect, extent, and form of patent. Fraudulent applications for patents. mencement, and the omission of a second proviso, which was in the terms "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." This proviso was unnecessary in the Act of 1883, and its omission in the present Act causes no alteration in the law. The addition of the words "except as otherwise expressly provided by this Act" was necessary, because this is a consolidation Act, and it was otherwise provided as regards certain patents by the (Amendment) Act of 1907 (see notes to sect. 15, sub-sec. 15, sect. 18, sub-sect. 5, and sect. 19, sub-sects. 1 and 3 of this Act). 14.-(1) A patent sealed with the seal of the Patent Office shall have the same effect as if it were sealed with the Great Seal of the United Kingdom, and shall have effect throughout the United Kingdom and the Isle of Man. Provided that a patentee may assign his patent for any place in or part of the United Kingdom, or Isle of Man, as effectually as if the patent were originally granted to extend to that place or part only. (2) Every patent may be in the prescribed form and shall be granted for one invention only, but the specification may contain more than one claim; and it shall not be competent for any person in an action or other proceeding to take any objection to a patent on the ground that it has been granted for more than one invention. Sub-sect. 1 comprises Act of 1883, sect. 12, sub-sect. 2, together with Act of 1883, sect. 16, and Act of 1883, sect. 36, which latter constitutes the proviso. Sub-sect. 2 is Act of 1883, sect. 33, see sect. 16. At the date of the passing of this Act the prescribed form was Form W. in the second schedule to the Patent Rules, 1903. The same form is now Form A. in the third schedule to the Patents Rules, 1908. For information and decided cases upon the subject of what constitutes one invention within the meaning of this sub-section, see Vol. II., pp. 9-11. 15.-(1) 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. (2) Where a patent has been revoked on the ground of The references in black type are to Frost's "Patent Law and Practice," 3rd Edition, 1906. fraud, the comptroller may, on the 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 patent so revoked: Provided that no action shall be brought for any infringement of the patent so granted committed before the actual date when such patent was granted. Sub-sect. 1 is Act of 1883, sect. 35. Sub-sect. 2 is Act of 1883, sect. 26, sub-sect. 8, as amended by the (Amendment) Act of 1907, sect. 18. The amendment consists of the substitution of the words, "the patent so revoked: Provided that no action shall be brought for any infringement of the patent so granted committed before the actual date when such patent was granted," for the following words at the end of Act of 1883, sect. 26, sub-sect. 8, viz. "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." Thus the new patent will now, as formerly, terminate on the expiration of the term for which the revoked patent was granted, for the term is fourteen years from the common date. The proviso precludes the defrauded patentee from recovering compensation in respect of infringements prior to the actual date when the patent is granted to him, which may be a considerable time after the revocation; whereas formerly he could recover in respect of infringements before that date. The rules do not provide any special form for applications under this section. Formerly it was possible that the defrauded inventor might be ousted by another meritorious and independent inventor, who had applied for a patent for the same invention after the date of the revoked patent but before the date of its revocation. The present amendment in the law is intended to protect the first and true inventor from such a catastrophe. inventions. 16. (1) Where the same applicant has put in two or Single patent more provisional specifications for inventions which are for cognate cognate or modifications one of the other, and has obtained thereby concurrent provisional protection for the same, and the comptroller is of opinion that the whole of such inventions are such as to constitute a single invention and may properly be included in one patent, he may accept one complete specification in respect of the whole of such applications and grant a single patent thereon. (2) Such patent shall bear the date of the earliest of such The references in black type are to Frost's "Patent Law and Practice," 3rd Edition, 1906. |