Watkins v Watkins [1952] HCA 60

H. C. or A.

1952. WwW

IN RE CouRTAULDS Lrp.'s PATENT.

Taylor J.

HIGH COURT {1952.

it is clear that the outbreak of war in 1939 resulted in the suspension of negotiations between the applicant, the American Viscose' Co. and the International Rayon Corporation, it seems equally clear that the International Rayon Corporation never at any time contemplated undertaking manufacturing processes in Australia pursuant to its Australian letters patent. On the contrary, the evidence establishes that its intention was to dispose, by sale, of its patent rights in the invention in this and other countries. This it did in 1945 when it sold to the applicant the whole of its patent rights to this and other inventions in European countries and in the countries of the British Commonwealth of Nations. The consideration for the sale was the sum of 5,000,000 dollars. The International Rayon Corporation did not join in making and was not otherwise a party to these proceedings, but it was conceded that the applicant had used its best endeavours to place before the Court the evidence relevant to a consideration of the activities of that corporation during the war years and there was a consider- able body of such evidence. From this it is quite apparent that as early as 1941 the invention was a proved success and that its employment, at that time, in the production of rayon yarn by con- tinuous process was not only useful but constituted an extremely substantial contribution to that industry. Reviewing the facts as best I can, I find that no other conclusion is open than that there was a delay of at least four years during which the Inter- national Rayon Corporation was prevented by hostilities of the nature specified in s. 84 (6) from selling or otherwise exploiting its Australian patent. I should add that it was not suggested that this period of delay or frustration was caused by hostilities other than hostilities between His Majesty and other foreign States. The original negotiations were suspended before the entry of the United States of America into the war, and even if other factors began to contribute to the delay after that event, the period of suspension was materially determined by circumstances as they existed in the United Kingdom and in Australia and which resulted directly from hostilities of the nature specified in s. 84 (6).