Ex parte Philips Electrical Industries Pty Ltd [1962] HCA 25

High Court of Australia Dixon C.J. McTiernan, Menzies, Windeyer and Owen JJ. Ex parte Philips Electrical Industries Pty Ltd [1962] HCA 25

ORDER Application for an order absolute for a writ of mandamus directed to the Commissioner of Patents dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 22 Dixon C.J.

Notwithstanding the elaborate and resourceful argument of counsel for the applicant in this matter I have been unable from beginning to end to see how s. 67 (1) could be understood as applying to patents granted and sealed before the Patents Act 1952-1960 came into force. It is evident on its terms that it deals with patents to be sealed, not with patents long since sealed. The case for the applicant must depend upon giving to s. 67 (1) an operation, which I think is quite impossible, that is to say an operation whereby a patent sealed before the Act came into existence must in the future be taken to have been sealed as of a date other than that which it in fact bears and as of which it was originally sealed. It is necessary to add only that sub-s. (3) of s. 5 continues the application of the Acts repealed to an application pending at the commencement of the Act of 1952 and is expressed to do so up to and including the sealing of the patent and only after such a patent is sealed does the Act of 1952 apply to it. This excludes the application of s. 67 (1) to a patent granted upon an application under the old Act pending when the new Act commenced. How then could it apply to a patent granted before that time? It appears to me that the case for the applicant cannot be supported.

I have had the advantage of reading the judgment of Menzies J. and I agree in it.

The application should be refused, the applicant paying the costs of the Commissioner.