High Court of Australia
$1 C.L.R.] OF AUSTRALIA. 327
(HIGH COURT OF AUSTRALIA.]
In Re DEL-MAC SHOE PROCESS CORPORATION'S PATENT.
Patent—Power of Court to extend term—Application by petition—Condition precedent H.C. or A. —Advertisement " in the prescribed manner "—Manner prescribed by regulations 1950. —Application by originating summons under s. 84 (6) of Act—Practice of court = "7 to require compliance with regulations—Power of court to dispense with require. MELBOURNE, ments of practice—Power of Commissioner of Patents to dispense with require. Nov. 1; ments of regulations—Patents Act 1903-1946 (No. 21 of 1903—No. 88 of 1946), S¥DNEY, $s. 84 (1), (6), 108—Patents Regulations, regs. 184, 151—High Court Rules, Nov. 16. 0. LIIL., r. 6.
Fullagar J.
It is @ condition precedent to an application by petition under s. 84 (1) of the Patents Act 1903-1946 for extension of the term of a patent that the matter be advertised "in the prescribed manner," that is, as prescribed in respect of applications by petition by reg. 184 of the regulations under the Act, and the High Court has no power to dispense with compliance with the condition, but this is not so in the case of an application made by originat. ing summons under s. 84 (6) of the Act; although it has been the practice of the High Court to require compliance with reg. 184 in such cases, it is—so far as applications by originating summons are concerned—a matter of prac- tice only, and the Court has power to relax the exigencies of the rule of practice in individual cases where special circumstances exist.
Semble: Regulation 151 of the Regulations under the Act, which gives the Commissioner of Patents power to dispense with the requirements of the regulations, applies only to proceedings before the Commissioner and to matters which are under his control by virtue of the Act; if, as a matter of construction, it applies to proceedings under s. 84 of the Act, it is, to the extent to which it so applies, ultra vires: Re Bradford's Patent (1928) 2 A.L.J. 320, doubted on this point.
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