Re Usines de Melle and Firmin Boinot's Patent [1954] HCA 32

High Court of Australia Fullagar J. Re Usines de Melle and Firmin Boinot's Patent [1954] HCA 32

ORDER Orders accordingly.

Cur. adv. vult.

The following written judgment was delivered:—

July 20 Fullagar J.

This is an application by originating summons under s. 84 (6) of the Patents Act 1903-1950 for an extension of the term of letters patent for an invention relating to "industrial alcoholic fermentations". The application for the patent was a "convention" application under s. 121, and the grant received the date of the original application in France. That date was 8th June 1936, and the date of expiry was therefore 8th June 1952. The time for making an application under s. 84 was extended by order in chambers made on 21st March 1952, and the originating summons was issued on 29th April 1952. At that date the patent had not yet expired but it has now, of course, long since expired.

Loss or damage by reason of war was, in my opinion, established, and, so far as the merits of the case go, I would be prepared to regard it as one in which the normal five-year period might properly be exceeded, and to grant an extension for seven years from 8th June 1952. The case, however, presents peculiar features, which appear to me to give rise to some difficulty.

The patent was applied for by, and granted to, two persons—a company incorporated in France under the name of "Usines de Melle" and an individual person named Firmin Boinot, and the register of patents still shows those two persons as owners of the patent. Although the patent ultimately granted was dated, as has been said, 8th June 1936, the application was not actually lodged in the patents office in Australia until 29th May 1937. On 12th February 1937 Usines de Melle entered into an "amalgamation" with another company named Bosker Frères. The amalgamation took the form of an agreement by both companies to transfer all their assets to a new company to be formed. The new company was incorporated on 23rd March 1937 under the name of " Les Usines de Melle". The agreement of 12th February 1937 provided for the transfer by Usines de Melle to Les Usines de Melle of assets which expressly included "all patents licences or patent applications for France as well as abroad", and it was expressly stated that a number of patents had been granted or applied for in a number of countries including Australia. The old company, Usines de Melle, went into liquidation on 19th March 1937, and was dissolved on 5th September 1941.