Ex parte British Nylon Spinners Ltd and Imperial Chemical Industries Ltd; Re Imperial Chemical Industries Ltd's Patent [1963] HCA 28

High Court of Australia Dixon C.J. Taylor and Windeyer JJ. Ex parte British Nylon Spinners Ltd and Imperial Chemical Industries Ltd; Re Imperial Chemical Industries Ltd's Patent [1963] HCA 28

ORDER Question raised by the case stated answered Yes. Costs of the case stated reserved for the order of the Court disposing of the application under s. 95.

Cur. adv. vult.

The Court delivered the following written judgment:—

Aug. 9 Dixon C.J., Taylor and Windeyer JJ.

For reasons which it is unnecessary to specify the question raised by the case stated by the parties pursuant to Order 35 has been stated in a somewhat curious form. It is whether the applicants are not entitled to apply for an extension of the term of letters patent for an invention relating to an improved process for melt-spinning of Nylon yarn. As appears from the case the letters patent were originally granted to Imperial Chemical Industries Limited (hereinafter referred to as I.C.I.) but they were later assigned to a company known as E. I. Du Pont de Nemours and Company (hereinafter referred to as Du Pont). Thereupon Du Pont granted to British Nylon Spinners Limited (hereinafter referred to as B.N.S.) what was called an exclusive licence to make use exercise and vend the invention within a certain limited field. It is sufficient for the purposes of the case to say that the "limited field" was defined generally by reference to yarn of which the filament, or any of the filaments, do not exceed 0.09 millimetres in its largest cross-sectional dimension in the drawn condition. Subsequently, Du Pont granted to I.C.I. a licence under the letters patent which was expressed to "be subject to the B.N.S. licence but otherwise exclusive". Each licence was for the unexpired term of the letters patent and for any prolongation or extension of the term. I.C.I. and B.N.S. have now joined in making an application for an extension of the term of the letters patent pursuant to s. 95 of the Patents Act 1952-1960.