Re Duckham's Patent [1951] HCA 63

High Court of Australia Dixon J. Re Duckham's Patent [1951] HCA 63

ORDER Order accordingly.

Cur. adv. vult.

J Dixon delivered the following written judgment:—

Oct. 22 Dixon J

On 26th July 1951 I made an order in this matter enlarging the time for applying under s. 84 (6) of the Patents Act 1903-1950 by originating summons for the extension of the applicant's patent. The order enlarged the time for issuing the summons to 31st August 1951. Regulation 134 of the Patent Regulations provides that a patentee intending to apply by petition for the extension of the term of his patent under s. 84 shall give public notice by advertising three times in the Official Journal and once at least in a daily newspaper published in each capital city of the States. If this regulation applied to proceedings by originating summons, the time limited by my order was too short to allow of the advertisements it prescribes. The regulation does not apply, however, of its own force to applications by originating summons under sub-s. (6) of s. 84; of its own force it applies only to petitions under sub-s. (1). It was so decided by Fullagar J. in Re Del-Mac Shoe Process Corporation's Patent [1] , and in a number of unreported cases Williams J. had acted previously upon the same view. But as appears from the reasons given by Fullagar J. a practice has arisen of requiring applicants by originating summons under sub-s. (6) to advertise their applications. That such applications should be advertised is obviously right but it does not follow that the same advertisements as are prescribed by reg. 134 should be required. Different justices, however, have adopted different views of what ought to be done. According to one practice advertisements have been directed after the originating summons has been issued; according to another advertisements before the issue of the summons have been required. Under the latter practice there has been an insistence upon a compliance with reg. 134, which has perhaps been treated as applying by analogy.