NV Philips Gloeilampenfabrieken's Patent, Re [No 1] [1966] HCA 43

High Court of Australia Windeyer J. NV Philips Gloeilampenfabrieken's Patent, Re [No 1] [1966] HCA 43

ORDER Application dismissed. Applicant to pay the Commissioner's costs.

Cur. adv. vult.

Windeyer J. delivered the following written judgment:—

July 15 Windeyer J

This is an application by N. V. Philips Gloeilampenfabrieken, the patentee of letters patent No. 146514, for an extension of the term of sixteen years which expired on 15th March 1964. What is now sought is a re-grant for a further term commencing on that date. These proceedings, which were started in 1963, are brought under s. 95 of the Patents Act 1952-1962 Cth. A petition was also lodged seeking an extension on the ground of inadequate remuneration (ss. 90 and 94); but this is not being proceeded with pending the determination of the present application.

Section 95 (1) is as follows:

Where, by reason of hostilities between Her Majesty and a foreign state, a patentee as such has suffered loss or damage, including loss of opportunity of dealing in or developing his invention, the patentee may, after advertising, as prescribed, his intention to do so, apply to the High Court or to the Commissioner for the extension of the term of the patent.

These words seem to me to refer to a situation in which the events of war or the conditions of wartime deprived a patentee of the opportunity of gaining advantages that he would otherwise have derived from his monopoly. In the present case the patented invention, the actual discovery, was not made until 1947. It was made in Holland and the invention was first patented there. The Australian patent is dated 14th March 1949, that is after the hostilities relied upon, the war of 1939-1945, had ended. As I see the matter, the patentee cannot establish loss or damage to it as a patentee by reason of hostilities that had ended in 1945 unless it can prove that some abnormal condition, caused by the war and continuing after it had ended, prevented it from exploiting its monopoly as otherwise it would have done. It is not enough, it seems to me, to shew that if there had not been a war the world would have been different, that people's ways and the things they used might have been different, and that if the inventor had invented his invention in that different world he might have gained more from it than, in the post-war world, he was able to do.