High Court of Australia
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[HIGH COURT OF AUSTRALIA.]
MARTIN . : ; s é § 5 i APPELLANT ;
PLAINTIFF, AND
SCRIBAL PROPRIETARY LIMITED . RusPonvENT.
DEFENDANT, SCRIBAL PROPRIETARY LIMITED e APPELLANT ; DEFENDANT, AND MARTIN . i : : z z 5 RESPONDENT. PLAINTIFF,
ON APPEAL FROM THE SUPREME COURT OF VICTORIA.
Patents—Specification—Ambiguity—Construction—Amendment in Patents Office— H.C. or A. Effect to claim different invention—Acceptance by commissioner—Conclusive- 1954. ness—Hvidence that patentee not in possession of invention patented at date of Se
application —Patents Act 1903-1950 (No. 21 of 1903—No. 80 of 1950), ss. 45, 46, MELBouRNE
Section 46 of the Patents Act 1903-1950 provided that " If the commissioner MM ache fa
is satisfied that no objection exists to the specification on the ground that the 12;
invention is already patented in the Commonwealth or in any State or is Sept. 14. already the subject of any prior application for a patent in the Commonwealth or in any State he shall in the absence of any other lawful ground of objection
accept th> application and specification without any condition, but if he is
not so satisfied he may either . . .
A specification filed in December 1943 with an application for a patent for a ball-pointed pen was amended from time to time under s. 45 of the Patents Act 1903-1950 until finally accepted under s. 46 in June 1949. In its final form it claimed an invention different from that claimed in its original form. As accepted, the specification, after referring to a capillary tube proceeded "in which when charged with viscous ink, 2 continuous liquid vein is main- tained extending from the ball and having a feed duct leading from the reservoir to the ball, the cross-sectional area of which duct, particularly that portion adjacent the ball, being less than that of the reservoir". In an VoL. xc11.—2
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