High Court of Australia
wore - ~ Wat FTES F |
aN \
IN THE HIGH COURT OF AUSTRALIA. :
MacGREGOR
oO REASONS FOR JUDGMENT.
40358. A. H. Pertiven, Aorixe Govr. Prix,
MacGREGOR
_ THE COMMISSTONER OF PATENTS
ORDER ..
ae SC
Appeal allowed. Direct that application and specification be accepted)
Appellant to pay costs of Commissioner.
bene
REASONS FOR JUDGMENT.
MacGREGOR
THE COMMISSIONER OF PATENTS
LATHAM C.J.
MacGREGOR
THE COMMISSIONER OF PATENTS. REASONS FOR JUDGMENT. LATHAM C.J.
This is an appeal from a decision of the Commissioner of Patents refusing to accept an application and specification for a patent for a sectional tubular steel pole or mast. The Patents Act 1903-1935, secs. 39 et seq., require the reference of applications and specifications to an examiner for report. In this ease the examiner, after various amendments had been made in the specification, reported adversely to the application. The Commissioner refused the application on the ground of want of subject matter - which is a "lawful ground of objection", see sec.46,
The appeal comes to this court under sec. 47 of the Patents Act. Though described as an appeal, the proceeding is a matter in the original jurisdiction of the court. The Commissioner is not a court from which an appeal lies to the High Court under sec. 73 of the Constitution. The matter comes before the High Court by virtue of sec. 72, which provides that "The Parliament may : make laws conferring original jurisdiction on the High Court in any matter - (ii) Arising under any laws made by the Parliament." The court in the present case has therefore admitted evidence of facts which were not before the Commissioner.
If the decision of the Commissioner is upheld, the application cannot proceed, and the applicant cannot obtain a patent for the invention claimed. A decision against the applicant, therefore, finally disposes of the right which he claims. Ifa decision is given in his favour the grant of a patent may still be opposed by any person, and the validity of the patent (if granted) may be challenged in proceedings for infringement or for revocation. In McDonald v. The Commissioner of Patents, 15 C.L.R., 713, it was held that, where the invention had not already been patented or been the subject of a prior application, the Commissioner should
We try to embed the page this law was scraped from. If the site blocks framing, you still get the link and a local excerpt.
Last checked with source on —
Checking whether the official page can be embedded…
Plain-English simplify of this law: a short summary, key points, and both sides of the argument. Generated on first view via Replicate, then cached. Vote on what helps your study.
No study brief is cached for this law yet. Sign up to generate a plain-English brief.
Sign up to generate